On June 16, 2020, IIUSA held a webinar with Charles Oppenheim, the chief of the Visa Control and Reporting Division of the U.S. Department of State. Oppenheim offered a wealth of valuable EB-5 information, primarily about EB-5 processing in FY2020 and how processing may look going forward. In total, the call lasted about one and a half hours, including a Q&A session with IIUSA panelists. This post explores the most important information Oppenheim shared in the webinar.

Consulate Closures

The most significant way in which the COVID-19 pandemic has affected the EB-5 Immigrant Investor Program has been the worldwide U.S. embassy and consulate closures, which has prevented overseas EB-5 immigrants from scheduling visa appointments and thus prevents them from claiming their U.S. green cards. Oppenheim revealed the U.S. Department of State is in talks to reopen consulates but could not offer any concrete dates or information. He emphasized that each consulate would take a different approach, so they will resume visa services at different times.

However, while consulates worldwide remain closed, the National Visa Center (NVC) is still offering services. Overseas EB-5 applicants can maximally expedite their visa process in the chaotic year of 2020 by becoming documentarily qualified through the NVC before the consulates reopen. That way, they’ll be ready for a visa interview immediately and will be able to claim their EB-5 visa soon after the consulates resume routine visa services. Oppenheim revealed that more than half of EB-5 applicants in a position to become documentarily qualified and pay the necessary fees have yet to do so, which could limit the number of EB-5 visas United States Citizenship and Immigration Services (USCIS) can issue in FY2020. He encouraged all investors presently able to become documentarily qualified to do so.

Issuance of EB-5 Visas in FY2020

In FY2020, more than 11,000 visas have been allocated to the EB-5 program. In a typical year, the allocated visas are distributed evenly throughout each quarter, but the COVID-19 pandemic has rendered even distribution impossible in FY2020. Oppenheim estimated that only around 4,500 EB-5 visas have been issued in FY2020 so far, as we near the end of the third quarter. This leaves more than 6,000 EB-5 visas to issue in a single quarter before September 30, 2020.

Oppenheim suggested USCIS could indeed issue most of the remaining EB-5 visas in FY2020 if the consulates reopen soon. Currently, the Immigrant Investor Program Office (IPO) is issuing EB-5 visas to domestic investors who have filed I-485 petitions to change their immigration status in the United States, but if statistics from previous years are anything to go by, domestic applicants account for only a minority of EB-5 investors. While Oppenheim is not authorized to reveal how many I-485 petitions are pending at the IPO, he did state they “don’t have a lot” and doubts the IPO can issue all allocated EB-5 visas through domestic processing alone.

FY2020 Visas Issued to Chinese EB-5 Investors

In October 2019, the beginning of FY2020, USCIS estimated Chinese investors would receive more than 5,000 EB-5 visas in FY2020. Those estimates did, of course, assume a pandemic would not sweep the globe and shut down public life in all parts of the planet. In reality, only 1,000 Chinese EB-5 investors received visas before the U.S. consulate in China stopped offering visa interviews in February 2020. According to Oppenheim, the one-week advancement of the Chinese final action date in the July 2020 Visa Bulletin frees up around 400 Chinese domestic investors and 3,000 Chinese overseas investors to claim an EB-5 visa, but with the consulate closed, only the 400 domestic investors will actually be able to proceed. Oppenheim added that the Chinese consulate likely couldn’t handle that many visa interviews even if it reopened immediately.

Oppenheim also had good news for Chinese investors: Despite uncertainty around Hong Kong’s status as an independent political actor, the EB-5 program will continue to treat Hong Kong applicants as separate from Mainland Chinese applicants. This way, the IPO can issue visas to Hong Kong investors without increasing the backlog for Chinese investors. The IPO will only alter its treatment of Hong Kong if U.S. immigration law changes.

FY2020 Visas Issued to Indian EB-5 Investors

Of the 11,000 or so EB-5 visas allocated for FY2020, 778 were earmarked for Indian investors. According to Oppenheim, a significant portion of these visas—possibly as many as 550—have already been granted to Indian investors. This has in part been possible due to the rapid advancement of the Indian EB-5 final action date, which, in the July 2020 Visa Bulletin, has finally become current, in line with predictions USCIS made in March 2020. Oppenheim further revealed that he believes the Indian final action date will remain current for the rest of FY2020.

FY2020 Visas Issued to Vietnamese EB-5 Investors

Oppenheim also touched on the prospects for the third major EB-5 country, Vietnam, but only vaguely. He provided no figures on the number of EB-5 visas issued to Vietnamese nationals thus far in FY2020 but did mention Vietnam’s final action date would likely continue to progress at the rate it has been during the pandemic (i.e., a few weeks at a time).

EB-5 Visa Availability in FY2021

Although the EB-5 program may lose large numbers of allocated visas in FY2020, FY2021 is expected to be a much brighter year. Assuming the world will have largely begun its “new normal” by the beginning of FY2021, EB-5 processing will be back to normal, and the number of visas allocated to the EB-5 program may be significantly higher than average. Each year, the EB-5 program is allocated 7.1% of all EB visas designated for that year. The number of EB visas is expected to be up in FY2021 because any unused family-based visas at the end of the fiscal year roll over to the EB programs the next year. Family-based immigration is also significantly down in FY2020—so much so that Oppenheim estimates EB visas in FY2021 will, at a “bare minimum,” be up 60,000, totaling more than 200,000.

India’s Rapid Final Action Date Advancement and the Possibility of Retrogression

Oppenheim’s webinar provides positive news for Indian EB-5 immigrants: He does not believe Indian investors will experience visa retrogression moving forward. The announcement came as a surprise to many EB-5 industry participants, who assumed the recent rapid advancement in the Indian final action date was primarily driven by the U.S. consulate closures and that the resumption of consular visa services would trigger a major retrogression. Oppenheim was firm in his stance, however, emphasizing the final action date movements as “measured” and “trying to avoid retrogression.” He stated clearly that he anticipates wait times for Indian EB-5 investors filing their I-526 today to be lower than the estimate in October 2019, which suggests a large number of Indian investors may be documentarily qualified and ready to receive their EB-5 visas in FY2020 or FY2021.

Oppenheim even suggested that the final action date for all countries could become current in FY2021 for a brief period, but the chances are extremely slim. This could possibly happen at the beginning of FY2021 if the consulates remain closed past September 30, 2020, and if there are enough domestic investors to justify moving the final action date forward.

IPO Processing Productivity

Processing productivity at the IPO has fluctuated dramatically in recent years, from record highs in FY2018 to a sharp decrease in FY2019. While the IPO has not released processing data for FY2020, the change between FY2018 and FY2019 was marked by a change in leadership, with Sarah Kendall, the chief in FY2019, continuing to head operations in FY2020. Oppenheim claimed the IPO was processing I-526 petitions rapidly and forwarding many investors to the next stage of the EB-5 process. He named Chinese investors specifically, implying a large number of petitions from Chinese investors may have been assigned for adjudication before the new visa availability approach debuted in April 2020.

The large number of new Chinese investors at the NVC seems to support Oppenheim’s claims of increased productivity. Other countries have increased only marginally or even decreased, which could imply a concentration on Chinese investors before the new visa availability approach kicked in. However, the increase in Chinese investors at the NVC could also simply be due to the Visa Bulletin date for filing moving forward and enabling many more investors to file their visa applications, and since rest-of-world applicants are favored in the visa availability approach, their low numbers suggest the IPO’s processing in FY2020 may be more in line with FY2019 figures. Of course, some investors take time to become documentarily qualified after receiving I-526 approval, and some file an I-485 petition instead of going through the NVC, so the truth will remain unclear until USCIS provides more information on the matter.

One of the most troublesome requirements of the EB-5 Immigrant Investor Program for investors is the source of funds requirement. EB-5 investors must demonstrate in their I-526 petition that they have obtained all their EB-5 capital from lawful sources. Depending on the sources an investor uses, the process of collecting the necessary documentation can be time-consuming and difficult.

EB-5 applicants must invest, at a minimum, $1.8 million or $900,000, depending on whether their project is in a targeted employment area (TEA). While these are large sums, prospective investors should bear in mind that they don’t need to have the entire amount available in liquid funds right from the beginning. Many EB-5 investors sell properties or other assets to liquidize capital for their investment.

Below are a few common sources investors use for EB-5 capital:

• Wage and salary earnings
• Revenue from a business
• Inheritance money
• Donations from family
• Investments in stocks, retirement funds, and other assets
• Sale of property and other assets
• Loans, whether from friends or relatives, a financial institution, a business, or another source

Many EB-5 investors use a combination of the above sources to liquidize enough funds for their investment. The difficult part is proving that they came from lawful sources, a process that can significantly delay an investor’s EB-5 journey. Investors should speak with an immigration lawyer highly familiar with the EB-5 program to determine the best funds to use to ensure a relatively easy and minimally stressful process of proving the legality of the capital.

For young investors, gifts are a common source of funds. Parents often donate the necessary investment funds to their child to allow them to pursue U.S. permanent residency through the EB-5 program. This is an especially attractive option to anyone hoping to study at one of the world-renowned universities in the United States. EB-5 visa holders may even be eligible for in-state tuition savings, depending on the college they enroll in.

It’s the news all Indian EB-5 investors have been waiting for: the Indian final action date for EB-5 visa green cards is finally current. The Indian final action date has been jumping forward rapidly in recent months, likely a result of the worldwide U.S. embassy and consulate closures due to the COVID-19 pandemic. United States Citizenship and Immigration Services (USCIS) predicted as early as March 2020 that the Indian EB-5 final action date would be current by summer 2020, and indeed, reality followed through. With that, the Indian backlog is finally cleared up—at least in theory.

The good news comes with a caveat, because the situation may not be as rosy as it seems. While Charles Oppenheim, chief of the Visa Control and Reporting Division of the U.S. Department of State, has announced that he expects the Indian final action date to remain current for the rest of FY2020, Indian EB-5 investors may experience a major visa retrogression when processing picks back up post-pandemic. EB-5 processing is hardly linear—it’s a messy and complicated process, with an investor’s priority date only playing a role if they are otherwise eligible to claim an EB-5 visa. With U.S. consulates closed around the world, Indian EB-5 investors living in India are ineligible to claim their visas during the pandemic, leaving this option solely to the Indian investors who already reside in the United States on a different visa. Statistics from previous years have shown that domestic EB-5 investors are scarce, and the rapid advancement of the Indian EB-5 date over the past several months may indeed indicate a low number of domestic EB-5 investors from India.

Chart A: Final Action Date

All three backlogged countries—China, India, and Vietnam—have moved forward in the July 2020 Visa Bulletin, but India’s astounding advancement outweighs everything else. The Chinese final action date has advanced by one week to July 22, 2015, and the Vietnamese date by three weeks to May 15, 2017, but the Indian final action date has moved forward by a staggering seven months from January 1, 2020. With that, the Indian final action date is finally current, although it’s unclear how long-lived this status will be.

Chart B: Date for Filing

The Indian EB-5 date for filing is also current, but that isn’t news because it’s always been current, as has the Vietnamese date for filing. The only EB-5 investors who must wait to file their visa application are those from China, who are currently unable to submit visa applications due to the suspension of U.S. consular visa processes. The Chinese date for filing sits at December 15, 2015, where it has remained for the last several months.

The EB-5 Immigrant Investor Program, one of the quickest and easiest paths to a U.S. green card for foreign investors, offers EB-5 visas in exchange for an investment in a qualifying project. To receive a visa, an investor must demonstrate that their investment in a new commercial enterprise (NCE) has fulfilled certain requirements, such as the creation of at least 10 new full-time jobs for U.S. workers.

In certain circumstances, however, an EB-5 investor may invest in a troubled business and work toward saving existing jobs rather than creating new ones. This less traveled EB-5 path is equally viable and leads to the same outcome: EB-5 green cards for the investor and their immediate family members.

What businesses qualify as “troubled businesses” under the EB-5 program?

According to United States Citizenship and Immigration Services (USCIS), to qualify as a “troubled business” under the EB-5 program, a business must have been established at least two years prior to the investment. Over the 12- or 24-month period before the investor’s I-526 petition priority date, the business must have suffered a net loss. The net loss must follow a decline of at least 20% in its value or net worth.

How do EB-5 investors satisfy the “job creation” requirement when investing in a troubled business?

While any job creation spurred by an EB-5 investment in a troubled business is, of course, helpful, EB-5 investors are not required to create new jobs when investing in troubled businesses. Rather, they must demonstrate that their investment has saved jobs. To fulfill this EB-5 requirement, EB-5 investors must ensure the number of employees at the troubled business at the end of their two-year investment period is not lower than what it was prior to their investment.

What is the minimum required investment amount for troubled businesses?

In terms of the investment amount required, troubled businesses are no different from NCEs. If the zone where the troubled business is located qualifies as a targeted employment area (TEA), EB-5 investors are eligible to invest the lower required amount of $900,000. Otherwise, they must invest at least $1.8 million in the troubled business.

TEAs are determined by their population or unemployment rate. A rural TEA is defined as an area with a population under 20,000 that is outside a metropolitan statistical area. High unemployment TEAs are areas with an unemployment rate at least 150% higher than the national average.

Certain EB-5 investors need to pay close attention to the monthly Visa Bulletins published by the U.S. Department of State – Bureau of Consular Affairs. They don’t affect all EB-5 investors—in fact, as of June 11, 2020, they only apply to investors from China, India, and Vietnam. However, the EB-5 landscape is constantly changing, and investors from up-and-coming EB-5 countries, such as South Korea, Taiwan, and Brazil, should keep an eye on the bulletins in case backlogs build up for their countries.

The Visa Bulletin contains two charts for EB-5 investors: Chart A and Chart B. Both contain two rows for EB-5 investors, drawing a distinction between regional center and direct investors. Rarely, however, do the dates for the two rows ever diverge. The countries specifically listed in the Visa Bulletin are also limited, as only a small number of countries are affected by visa backlogs.

In both charts, “C” refers to current, indicating countries that do not have an EB-5 backlog. These investors can move forward in the EB-5 process freely, but investors from a country that is not current must refer to their priority date to determine whether they can proceed. All EB-5 investors receive a priority date when United States Citizenship and Immigration Services (UCSIS) issues a notice of receipt for their I-526 petition, and if the final action date for an investor’s country is after their priority date, they may proceed.

Final Action Date

Chart A in the Visa Bulletin shows the final action dates for EB-5 investors. The dates apply to investors who have already received I-526 approval and have applied for an EB-5 visa. Since only a limited number of visas are allocated to the EB-5 program each fiscal year, countries with high EB-5 demand can build up backlogs, with more investors than available visas. Investors with current final action dates may be issued their EB-5 visa, but the rest must wait.

As of June 2020, the only countries that have been historically affected by final action date backlogs are China, India, and Vietnam. USCIS has predicted that the Indian final action date will become current by summer 2020, and the prediction seems to be coming true. However, the messy and nonlinear reality of EB-5 processing could spell drastic retrogression for Indian investors in the future.

Date for Filing

Chart B shows the dates for filing and is reserved for countries with particularly large backlogs. To avoid an overwhelmingly high number of applications in the system, USCIS asks certain investors to refrain from even filing their visa application until a certain date, known as the “date for filing.” As of June 11, 2020, only Chinese EB-5 investors are required to wait to file their visa application.

COVID-19 Complications

The COVID-19 pandemic has ravaged the planet and temporarily shut down all U.S. embassies and consulates. In June 2020, the pandemic has yet to abate in many parts of the United States, and accordingly, U.S. consular immigration services abroad have yet to resume. This makes it impossible for overseas EB-5 investors to apply for their visas, but investors already living in the United States under a different visa are still able to receive their EB-5 visa by filing an I-485 petition to adjust their immigration status.

This unusual EB-5 processing reality forces the final action date to leap forward to accommodate the small number of domestic EB-5 investors. When the consulates reopen and overseas investors are once again able to claim EB-5 visas, the sudden influx of eligible investors is likely to cause major retrogressions.

Entrepreneurs around the world aim to relocate to the United States for a better and freer life with unlimited business opportunities. With top-quality universities, state-of-the-art health facilities, and unbeatable freedoms, the United States promises immigrants a better and brighter future for themselves and their families. The United States offers a wide range of start-up visas for entrepreneurs and investors, so individuals who wish to start a business, invest in U.S. workers, or otherwise live and conduct business in the United States have plenty of choice.

The following visas are available to eligible immigrants:

1. EB visas
2. H-1B visa
3. E-2 Treaty Investor visa
4. L-1 visa
5. O visas

Immigrant Visas vs. Nonimmigrant Visas

Not all visas are equal, and different visas offer immigrants different rights and privileges. They can broadly be broken up into two classes: permanent resident visas and nonimmigrant visas. Permanent resident visas, also known as immigrant visas, grant the holder permanent resident status, allowing them to live in the United States indefinitely and live, study, and work freely. Nonimmigrant visas allow people to enter the country temporarily for a specific purpose, such as tourism, education, or employment.

Visas for Foreign Entrepreneurs and Investors

Foreign nationals seek to come to the United States for a variety of reasons, so visa programs are available to cover a wide range of needs. Below are some of the best visas for entrepreneurs and investors.

EB-1 Visa: Immigrants with Exceptional Abilities

EB (employment-based) visas are meant for foreign nationals who are looking to work permanently in the United States. There are five different EB visas, ranked in order of preference, and all require specific or highly advanced skills. The first one, the EB-1 visa, focuses on three different classes of individuals:

• Those with exceptional ability in the sciences, arts, education, business, or athletics, recognized by national or international acclaim (job offer not required)
• Extraordinary professors or researchers who are pursuing tenure
• Managers or executives of multinational companies

Requirements vary based on the type of EB-1 visa a foreign national applies for.

EB-2 Visa: Highly Skilled Immigrants

The second-preference EB visa is the EB-2 visa, which is fairly similar to the EB-1 visa. It also requires a high level of skills, but applicants may need to provide more evidence to prove their skills. Individuals in one of the following categories may apply for an EB-2 visa:

• Those with a job offer that requires an advanced degree or a level of experience that equates to an advanced degree
• Those with exceptionally high skills in the sciences, arts, or business
• Those who request the labor certification (PERM) to be waived because their working in the United States would be beneficial to the country

The evidence that each applicant is required to provide differs depending on their unique situation. An applicant may need to provide proof of their experience or present copies of their degree certificates or professional licenses. An EB-2 applicant is also permitted to apply for visas for their spouse and unmarried children under the age of 21.

EB-3 and EB-4 Visas: Immigrants Addressing Skills Shortages and Special Immigrants

The EB-3 visa is also available to professionals, skilled workers, and certain unskilled workers. The skills requirements are not as strict as they are for the EB-1 and EB-2 visas, but the workers should perform jobs no qualified U.S. workers are available for.

The EB-4 visa is available for special immigrants, which include religious workers, broadcasters, international employees of the U.S. government abroad, members of the armed forces, and Afghan and Iraqi translators. The full list of qualifying EB-4 immigrants is available on the USCIS website.

EB-5 Visa: Immigrant Investors

The final EB visa is the EB-5 visa from the EB-5 Immigrant Investor Program. The EB-5 visa focuses on foreign investors, who can gain a U.S. green card by investing, either directly or via a regional center, in a qualifying EB-5 project.

Both investors and immediate family members—their spouse and unmarried children younger than 21—are eligible to receive U.S. permanent resident status if the investment fulfills EB-5 criteria, including the following:

• The investment amount must be at least $1.8 million or $900,000, depending on whether the EB-5 project is in a targeted employment area (TEA).
• The investor must provide evidence that their EB-5 capital has come from lawful sources.
• The investor must keep their investment capital at risk throughout the investment period.
• The investment capital must fund the creation of at least 10 new, full-time jobs for U.S. workers.

The EB-5 program is generally seen as one of the fastest and easiest ways to immigrate to the United States, although processing times can vary based on the investor’s country of origin.

H-1B Visa: Specialty Occupations

The H-1B visa is a nonimmigrant visa available for those who land U.S. employment in a “specialty occupation.” To apply for an H-1B visa, the applicant must have already been offered a job, and the employer must sponsor the applicant to receive the visa. To qualify for an H-1B visa, applicants must generally have a bachelor’s degree or equivalent experience, and the employer must have been unable to find a U.S. worker or resident for the position. The visa process can take a long time, with a delay of several months before the applicant is able to begin working.

E-2 Visa: Treaty Investors

Like the EB-5 visa, the E-2 visa is available to foreign nationals who invest in a U.S. business. In the case of the E-2 visa, eligibility is determined by treaties the United States maintains with the applicant’s country, which means only investors from specific countries are eligible. The EB-5 visa, in contrast, is open to investors from any country.

The E-2 visa does not stipulate a specific amount to invest, like the EB-5 program does, but the investment must qualify as “substantial” according to the Foreign Affairs Manual and relevant U.S. statute and regulations. Applicants are also required to own at least 50% of the business or operational control. This further distinguishes the E-2 visa from the EB-5 visa, since EB-5 regional center investors are not required to engage in managerial work at their new commercial enterprise.

L-1 Visa: Intracompany Transferees

L-1 visas are used to allow employees of a multinational company to transfer from foreign branches, affiliates, or subsidiaries to the United States. It comes in two varieties: the L-1A visa, which is designated for executives and managers, and the L-1B visa, which is for employees with specialized knowledge who are not necessarily managers.

The O-1 Visa: Individuals with Extraordinary Ability or Achievement

The O-1 visa is similar to the EB-1 and EB-2 visas in that it targets foreign nationals with exceptional skill or achievement recognized by national or international acclaim. It is a nonimmigrant visa that allows the applicant to reside temporarily in the United States to work in their field of exceptional talent. The individual must work in either education, business, athletics, the sciences, the arts, or the motion picture industry.

O-2 and O-3 visas are available to allow people close to the O-1 applicant to temporarily relocate to the United States with them. The O-2 visa is allocated for those deemed “essential” for the O-1 visa holder’s work, such as the agent of an actor, while the O-3 visa allows the O-1 visa holder’s spouse and children to move with them.

What’s the Best Option for You?

The United States offers many ways for entrepreneurs and investors to immigrate, but not all paths are viable for all entrepreneurs. Carefully consider what your needs and goals are—do you want to immigrate to the United States permanently? Are you seeking a high-end job for highly skilled individuals? Are you looking to start a business in the United States? Would you like to make an investment in a U.S. commercial enterprise? Whether you opt for the O-1 visa or the EB-5 visa, it’s important to carefully consider your options, ideally with an immigration attorney.

The EB-5 Immigrant Investor Program is one of the fastest and easiest ways for foreign nationals to secure a life in the United States and enjoy all the benefits that come with it. Every year, investors from around the world apply to the EB-5 program for a better future in the prosperous United States. Despite the relative ease, however, the EB-5 program remains a complicated process with numerous factors to consider. Here are three key aspects prospective EB-5 investors should reflect on at the beginning of their journey.

1. How Much Risk Are You Willing to Take On?

All EB-5 investments must remain at risk throughout the investment period, as stipulated by EB-5 requirements. However, the degree of risk is not specified, so investors are free to decide how much risk they are willing to bear.

Most EB-5 investors are primarily concerned with immigration, not financial returns—many are happy to earn only a small return on investment (ROI) to gain a U.S. green card. Thus, it’s vital for investors to conduct careful due diligence on prospective EB-5 projects to ensure minimal immigration risk. If ROI is important to them, they can also take steps to seek projects with lower financial risk.

Depending on their managerial capabilities, some investors may feel more inclined to invest directly in an EB-5 project because it gives them more control over their EB-5 capital. Direct EB-5 investors must partake in the day-to-day management of the project, meaning their managerial skills can influence their ROI.

EB-5 investors who are less experienced in management or who simply wish to spend their time on other matters may prefer to invest through a regional center. While these investors lose direct control over their funds, they enjoy numerous other benefits, such as loosened job creation requirements. In regional center investments, the regional center managers are responsible for the investors’ ROI, but reputable regional center leaders are seasoned professionals in financial management.

For investors who choose the regional center route, due diligence to select a high-quality regional center is also crucial. Regional center terminations have been a trend in FY2019 and FY2020, with an astounding 44 regional centers losing their regional center status between March and May 2020. Without proper due diligence, EB-5 investors may risk their chances at U.S. immigration by working with a low-quality regional center.

2. What Are the Best Funds to Use for the EB-5 Program?

One key EB-5 requirement is that all investors document the lawful sources of their EB-5 capital in their I-526 petition. Investors can dramatically simplify their I-526 petition by selecting fund sources that are easier to document, saving time and stress and possibly even speeding up their processing time. EB-5 investors should work with their immigration attorney to determine the best funds to use in their situation.

3. What Additional Fees Might You Incur?

The minimum required investment amount for the EB-5 program is $1.8 million or $900,000, depending on whether the project is located in a targeted employment area (TEA). However, EB-5 investors inevitably face more fees related to their participation in the program. Below are a few examples of fees EB-5 investors should consider:

• EB-5 immigration attorney fees
• Filing fees for the I-526 and I-829 petitions (and I-485, if applying from within the United States)
• Regional center administrative fees, if investing through a regional center
• Travel and moving fees to relocate to the United States
• U.S. taxes, depending on when in the year the investor relocates to the United States

It’s also helpful for investors to consider potential financial benefits of living in the United States. If they or their unmarried children younger than 21 wishes to attend college in the United States, they may be eligible for in-state tuition benefits. They can also save on travel expenses to visit family or conduct business in the United States.

The EB-5 Immigrant Investor Program has long been marred with stories of fraud and fakery, but the picture the media paints is far from the reality of the program. While there have indeed been cases of fraud in the EB-5 program—there will always be a minority of bad actors in the world—the vast majority of EB-5 projects involve honest businesspeople and entrepreneurs looking to establish a successful business that creates jobs in their community.

The negative press toward the EB-5 program has increased during the COVID-19 pandemic due to unfounded rumors that President Trump was considering relaxing EB-5 requirements as part of a coronavirus relief bill. Senator Lindsey Graham, who was purported to have headed the initiative, has vehemently denied the allegations, but the damage to EB-5’s reputation had already been done.

Combined with the extremely low adjudication volumes at the Immigrant Investor Program Office (IPO) in FY2019, the situation has fueled animosity toward the program domestically and doubt among prospective EB-5 investors abroad. If the EB-5 industry fails to take action, the future of the program could be in jeopardy.

Sharing Positive EB-5 Stories

EB5 Investors Magazine has decided to combat the negative press and launch an initiative to promote all the good impacts the EB-5 program has had on the United States and everyday U.S. citizens. Given the media stories of EB-5 fraud engraved in the public’s minds, the only way to fight back is with positive press showcasing the economic prosperity and jobs the EB-5 program has brought to the United States.

The magazine is inviting EB-5 regional centers and project companies to submit their stories of successful EB-5 projects that have brought benefits to the American people. The idea of the campaign is to show policy makers, industry professionals, prospective participants, and everyday U.S. citizens how the EB-5 program helps the United States and creates wealth and prosperity in the nation.

Holding USCIS Accountable

The negative press only accounts for a portion of the EB-5 program’s woes in 2020. The low adjudication rates at the IPO since the takeover by Sarah Kendall in FY2019 have been eroding trust and confidence in the program among investors and professionals alike, with some investors opting to pursue immigration programs in other countries instead. However, if United States Citizenship and Immigration Services (USCIS) is held accountable for its failure to do its job, the prospects for the EB-5 program may improve and investors may turn back to the program.

The IIUSA Public Policy Committee is preparing to confront USCIS about its slow and unreasonable adjudication practices in FY2019 and FY2020. Requests for evidence (RFEs) and notices of intent to deny (NOIDs) have been issued with increasing frequency under Kendall’s leadership, and a trend of unreasonable requests in these documents has emerged. If you have received an unreasonable request in an RFE or NOID, please black out the personal information and send the document to education@iiusa.org.

Calling on Congress to Recognize the Merits of the EB-5 Program

IIUSA has a second initiative: a public letter of support for the EB-5 program addressed to Congress. The letter details the many benefits the EB-5 program has brought to the United States, including generating $20.6 billion in investments and 731,792 jobs between 2008 and 2015. EB-5 stakeholders, project developers, and businesses all around the country are invited to voice their support for the EB-5 program and all the good it brings to the United States.

The EB-5 Immigrant Investor Program offers a unique opportunity to foreign investors and their immediate family members to obtain U.S. permanent resident status in exchange for a successful qualifying investment in an EB-5 project. An investor can include their spouse and unmarried children younger than 21 on their EB-5 visa application.

At the end of the EB-5 process, the entire family can receive permanent resident status in the United States by each filing an I-829 petition. Investors and their families file the I-829 petition after two years of conditional permanent residency and may remove the conditions if the investment met all the EB-5 criteria, such as the creation of at least 10 new, full-time jobs for U.S. workers.

Unfortunately, however, sometimes an investor may pass away during the EB-5 process. This leaves their dependents not only riddled with grief but also unsure about the future in the United States they had been looking forward to.

Special Legislation for Deceased EB-5 Investors

New legislation to address the concerns of EB-5 families in the event of the primary applicant’s death was enacted in 2009 as part of the Immigration and Nationality Act (INA). The statutory provision, INA 204(l), permits a deceased investor’s dependents to apply “adjustment of immigration benefit” under certain conditions. The main condition is that the investor meets the definition of the term “qualifying relative,” which INA 204(I) does not define. Thus, United States Citizenship and Immigration Services (USCIS) decides who meets the criteria of a “qualifying relative.”

What Are the Requirements to Be a Qualifying Relative for the EB-5 Program?

The term “qualifying relative” refers to the main applicant, not to their relatives who are included in the application. USCIS defines a “qualifying relative” as someone who had applied to the EB-5 program shortly before their death, regardless of whether their petition is pending or approved at the time of death. Spouses and unmarried children younger than 21 of such investors may be eligible to receive EB-5 visas based on their relationship to the qualifying relative.

Eligible family members of qualifying relatives may proceed with their application for a U.S. green card if they satisfy the necessary residency requirements. Fundamentally, qualifying family members will be permitted to proceed with their immigration to the United States as if the principal applicant had not died. It’s not necessary for all family members to meet the residency requirements as long as one does.

What Does the Residency Requirement Entail?

The residency requirement consists of two conditions:

• The family member must have been living in the United States when the qualifying relative passed away.
• The family member must continue to live in the United States following the death of the qualifying relative.

The family member is allowed to have been temporarily abroad at the time of the qualifying relative’s death. The key requirement is that their principal dwelling place was in the United States.

Removing Conditions from Conditional Permanent Residency

Matters are trickier in the case of a recent marriage, given the existence of fraudulent marriages to dishonestly obtain U.S. permanent resident status. If the spouse of an EB-5 investor receives conditional permanent resident status as the result of a recent marriage to the investor and the investor then dies, USCIS will investigate the legitimacy of the marriage before granting unconditional permanent resident status to the bereaved spouse.

USCIS’s Discretion to Deny

Whether the dependent family members of a deceased EB-5 investor are granted U.S. permanent resident status is ultimately determined at the discretion of USCIS officers. Even if a family member seems to satisfy all the relevant requirements, USCIS may still decide to deny their application.

EB-5 is a complicated program to begin with, and the death of an investor only complicates matters further. Any family members bereaved of an EB-5 investor who was a qualifying relative should contact an immigration attorney to help them determine what options are available to them.

For the countless foreign investors around the world who wish to relocate to the United States, the EB-5 Immigrant Investor Program is one of the best options. Established in 1990, the program offers foreign investors permanent resident status in the United States for themselves and their immediate family members in exchange for an investment in a qualifying EB-5 project. The program has surged in popularity as a relatively quick and easy means to U.S. immigration.

One of the reasons the program is popular is that it does not require a sponsor. Many employment-based immigration programs require petitioners to find an employer to sponsor them, which is a difficult task, but for the EB-5 program, applicants simply need to possess the required $1.8 million or $900,000, depending on the targeted employment area (TEA) status of the EB-5 project. Avoiding the need to find a sponsor also renders the EB-5 program a quicker immigration program than most others.

Why Your EB-5 Petition Might Be Denied

While the EB-5 program is generally easier than other immigration programs, approval is not guaranteed. As an EB-5 investor, you can face rejection for a variety of reasons, including the following:

• Failing to provide necessary information on the I-526 or I-829 petition
• Failing to provide required documentation, such as a copy of your birth certificate or passport
• Failing to pay the required fees
• Providing inaccurate or inconsistent information
• Failing to invest the required $1.8 million or $900,000 in an EB-5 project
• Investing in a project that doesn’t qualify for the EB-5 program
• Failing to document that your EB-5 capital was obtained lawfully
• Failing to show that your EB-5 capital is at risk for the duration of the investment
• Failing to meet or failing to provide a business plan that shows how you plan to meet the EB-5 job creation requirement

You can minimize your chances of rejection by paying close attention to the above criteria and working closely with your immigration attorney to ensure strict adherence to EB-5 requirements.

How to Handle an EB-5 Rejection

If you do receive a denial, your EB-5 journey is not necessarily over. While the experience is disheartening and discouraging, there may still be actions you can take to salvage your relocation to the United States.

If you receive a denial notice from United States Citizenship and Immigration Services (USCIS), read it carefully. USCIS explains why your petition was denied and provides resources you may consult going forward. Work closely with your immigration attorney and legal advisor to determine the best course of action for your circumstances. Appropriate courses of action may include filing a legal motion, submitting an appeal, reapplying to the EB-5 program, or looking for alternative routes to immigration.

Filing a Legal Motion

If you have substantial new evidence that could persuade an adjudicator to approve your EB-5 petition, you may be eligible to file a legal motion. A legal motion requests the officer who adjudicated your petition to reevaluate it. You may also file a legal motion if you believe the adjudicator made an erroneous judgment in denying your petition, but you must back up your belief with an in-depth explanation. In this case, you should work with an immigration attorney who has experience working with EB-5 investors and is deeply familiar with EB-5 immigration laws.

Filing an Appeal

If you are unable to file a legal motion, or if you do but it is unsuccessful, you may be able to file an appeal against the denial of your EB-5 petition. Appeals against EB-5 denials are generally presented to the Administrative Appeals Officer.

Filing a New EB-5 Application

If your I-526 petition was denied for certain reasons, you may have success with a new application. For example, if your petition is denied because you invested in an ineligible project, you can simply submit a new petition with an investment in a qualifying EB-5 project.

No matter why your petition was rejected or what your options are going forward, working with an immigration attorney is vital. The EB-5 program is incredibly complicated, and if you aren’t familiar with all the intricate rules, success in the face of denial is wholly unlikely.