Every cloud has a silver lining, and for some EB-5 investors, the silver lining of the COVID-19 pandemic is faster processing times for I-526 petitions. Because the I-526 petition is a complex form requiring numerous supplementary documents and each EB-5 investor’s circumstances are different, processing times inevitably differ, but recent months have seen a stark decrease in the historical average processing times. While EB-5 investors should not necessarily expect their I-526 petitions to be adjudicated faster, many may find themselves pleasantly surprised.

What Is the I-526?

Form I-526 is the petition that starts a foreign investor’s EB-5 journey. Investors typically file it soon after transferring their EB-5 capital to the account designated in their chosen EB-5 project’s documentation—usually an escrow account. Generally, it takes one to two years to receive an adjudication, although processing times vary based on a number of factors.

EB-5 investors are required to accompany their I-526 petition with a large number of documents. They must not only prove that they have invested the required amount of capital—which varies based on the targeted employment area (TEA) status of the project—but also that they have obtained the funds lawfully. In addition, investors must provide evidence that the new commercial enterprise (NCE) is eligible to participate in the EB-5 program and is conducting business activities.

Another major requirement is proving the NCE will create the 10 new full-time jobs necessary for the successful completion of the EB-5 program. Investors should include a business plan, hiring schedule, and an economic report calculated using accepted methodologies.

Finally, EB-5 investors must demonstrate that they are sufficiently involved in the management of the NCE. For most regional center investors, simply being a limited partner and voting on business matters is sufficient, so such EB-5 investors are not tied to the location of their EB-5 project.

Once an EB-5 investor’s I-526 petition is approved, he or she may apply through the National Visa Center (NVC) for a U.S. green card, if he or she is applying from overseas, or submit Form I-485 to adjust his or her immigrant status, if he or she is applying from within the United States. The conditional permanent resident status the investor and his or her family receive following a successful application is valid for two years, after which the investor must submit an I-829 petition to remove the conditions.

Recent Downtrend in I-526 Average Processing Times

I-526 adjudication has never been a fast process, with EB-5 investors almost always required to wait at least a year and often longer. Although processing times rose steadily from FY2016 to FY2018, FY2019 marked the beginning of a downtrend, which has continued strong into FY2020. The current data for FY2020, which spans from October 1, 2019, to January 31, 2020, reveals a five-year record low average processing time for I-526 petitions—just over one year. This is a nearly 40% drop, one of the largest in EB-5 history.

With the COVID-19 pandemic raging on, shutting down U.S. consulates worldwide and United States Citizenship and Immigration Services (USCIS) offices domestically, the Immigrant Investor Program Office (IPO) continues to adjudicate I-526 petitions. It is reasonable to speculate that the pandemic could push the adjudication times down even further, as the IPO may no longer be able to perform activities that otherwise would have diverted its attention from I-526 petitions.

Filing Form I-829 is the final step before an EB-5 investor completes the EB-5 visa process and obtains unconditional permanent resident status in the United States. The three main administrative steps in the EB-5 process are filing Form I-526, applying for conditional permanent residence, and petitioning United States Citizenship and Immigration Services (USCIS) to remove the conditions on permanent residence. This guide provides a comprehensive overview of preparing and filing USCIS Form I-829, starting with a brief background of the I-526 process and the path to conditional permanent residence.

Form I-526

The first petition in the EB-5 process is Form I-526, which investors use to launch their EB-5 application with USCIS. EB-5 investors file their I-526 petitions after transferring their EB-5 capital to the designated account in their chosen EB-5 project, and upon adjudication, which typically takes around two years, they can apply for conditional permanent residence for themselves, their spouses, and their unmarried children below the age of 21. EB-5 investors in the United States must file Form I-485, Application to Adjust Status, to secure conditional permanent residence, while those outside the United States must submit Form DS-260 to the National Visa Center in their home countries.

Part of the I-526 petition involves demonstrating that the investor’s EB-5 funds have come from legal sources. The requirement to collect and, where necessary, translate, a large number of documents presents difficulty to many EB-5 investors. Additionally, when preparing an I-526 petition, EB-5 investors must provide the hiring schedule of the new commercial enterprise (NCE) and projections that indicate the creation of at least 10 new full-time jobs for U.S. workers, which is one of the key requirements of the EB-5 program.

When to Prepare and File Form I-829

Once an EB-5 investor and his or her family have received U.S. green cards, the family can relocate to their desired area in the United States. If the associated EB-5 project is affiliated with an EB-5 regional center, the investor is not tied to the project region and has the right to live anywhere in the United States.

The conditional permanent resident status EB-5 investors secure after I-526 approval is valid for two years. Throughout this period, the investor must maintain his or her capital invested in the EB-5 project in an “at risk” status and should refrain from excessive travel abroad to maintain permanent resident status in the United States.

In the last 90 days of conditional permanent residency, the EB-5 investor must file Form I-829. It is strongly recommended to start preparing in advance because if USCIS does not receive an investor’s Form I-829 petition within the specified time frame, the investor’s permanent resident status could be jeopardized.

Preparing Form I-829

Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, is an EB-5 investor’s ticket to full permanent resident status in the United States. It is contingent on existing permanent resident status, so the EB-5 investor must present his or her green card on the application.

The main purpose of Form I-829 is documenting that the EB-5 investor has fulfilled the requirements of the EB-5 program. The key requirements are the establishment and continued existence of a new commercial enterprise (NCE) throughout the investment period, an investment in the NCE of the minimum required amount ($1.8 million or $900,000, depending on the project’s targeted employment area designation), and the creation of 10 new full-time, permanent jobs for U.S. workers.

EB-5 investors must submit abundant evidence with their Form I-829 petitions to demonstrate that they have met the outlined requirements. Various documents, including tax returns, bank statements, company licenses, receipts and invoices, payroll records, contracts, and more can be used to prove the validity of each EB-5 investment to USCIS.

If an EB-5 investor has a criminal history, he or she is also required to include documentation such as court records, law enforcement statements, or records of arrest with his or her Form I-829 petition.

Filing Form I-829

Form I-829 costs $3,750 to file, plus an $85 fee for biometric services, if required. Once the I-829 petition is completed, the EB-5 investor must send it to the USCIS Dallas Lockbox in the 90-day period before the expiry of his or her conditional permanent residency. On average, it takes USCIS between two and four years to adjudicate a Form I-829 petition, but the EB-5 investor and his or her family retain the right to remain in the United States as permanent residents while their application is pending.

Upon I-829 approval, the EB-5 investor will receive a new green card without conditions. This marks the end of the investor’s EB-5 journey. After living in the United States as a permanent resident for five years, the investor may apply for U.S. citizenship, if desired.

With entry bans, significantly reduced flight schedules, and mandatory quarantines, immigration during the COVID-19 pandemic is more or less impossible, but immigration to the United States after the pandemic is not only possible, it’s a great idea. For investors worldwide, the EB-5 program is the ideal pathway to a U.S. green card. Here’s why you should still relocate to the United States after COVID-19.

Your U.S. family will still be there.

All the isolation and social distancing of the new COVID-19 era has caused many people to long for more companionship. If you have relatives in the United States who you’d like to reconnect with following the COVID-19 crisis, an EB-5 visa represents an excellent opportunity to spend valuable time with your U.S. family. To maintain your U.S. permanent resident status, you’ll need to spend the majority of your time in the United States, refraining from taking long trips abroad. However, after only five years of permanent residency, you can apply for U.S. citizenship, which grants you the freedom to divide your time between the United States and your birth country as you desire.

U.S. post-secondary education institutes are still the best in the world.

Lists of the most renowned universities in the world are always filled with U.S. colleges, many of which—such as MIT, Stanford, and Harvard—reach the highest ranks. While the COVID-19 pandemic has forced campuses to close and classes to move online in many U.S. schools, U.S. colleges remain some of the most prestigious schools in the world and will continue to issue high-quality degrees after COVID-19.

The EB-5 program is perfect for international students who wish to take full advantage of life in the United States. Not only can an EB-5 visa make gaining admission to a U.S. college easier, but it can also potentially save students thousands in in-state tuition savings. Students with EB-5 visas also have the right to seek employment during their studies without restrictions, just like their U.S. peers.

COVID-19 may not hamper the U.S. economy for that long.

Most recessions are the result of diminished consumer demand, but such is not the case in the COVID-19 pandemic. Though many businesses are struggling to stay afloat during the crisis, the government’s generous aid programs and loans will help many survive this deadly virus and bounce back once people are allowed to leave their homes again. The pandemic could also spur the growth of particular industries, such as health care, technology, and online businesses.

The economy may be rife with lucrative investment opportunities following the crisis.

The conclusion of the pandemic may be the right time to jump on the housing market. With the real estate market shrouded in uncertainty, buyers and investors may secure irresistible deals on houses and properties.

The post-coronavirus era could also bring good news for EB-5 investors. The employment landscape of the United States could shift dramatically, driving up unemployment rates in hard-hit areas such as New York City. Such shifts would mean that many more areas of the United States could qualify as targeted employment areas (TEAs), which would permit EB-5 investors to invest a lower minimum investment amount.

The EB-5 program is still going strong amidst COVID-19.

While the coronavirus pandemic has forced the closures of all U.S. embassies and consulates and United States Citizenship and Immigration Services (USCIS) has shut its doors to the public, the processing of EB-5 applications continues. In fact, I-526 petitions may even be processed faster than average, since USCIS now has more time to focus on adjudication.

In April 2020, the U.S. Bureau of Labor Statistics (BLS) released the annual employment data for 2019. EB5AN has updated its national EB-5 TEA map to ensure that EB-5 investors and developers have access to the most up-to-date information related to targeted employment area (TEA) designation.

Understanding the Effects of the April 2020 Annual BLS Data Update on EB-5 TEA Designations

Finding the relevant data to calculate unemployment rates for TEA designation, and performing these calculations, can be complex, yet accurately identifying TEAs is a crucial step in the EB-5 investment process. For a better understanding of the BLS annual data update and what it means for TEA designation, watch the video below of the Annual 2020 TEA Map Update and Training webinar presented by Sam Silverman and Mike Schoenfeld, managing partners of EB5AN. Topics discussed include confirming TEA designation, the data sets used to calculate unemployment rates, combining census tracts on the EB5AN TEA map, and more.

How Does the EB5AN National TEA Map Work?

The EB5AN national TEA map is a free tool that allows users to instantly see whether their projects are located within TEAs and thus qualify for the lower EB-5 investment amount of $900,000. In addition to being able to choose rural areas that qualify as TEAs, users can view high unemployment TEAs, with unemployment levels based on both the census-share method and American Community Survey (ACS) five-year data method. Users can also combine census tracts to determine whether a combined area qualifies as a TEA.

Calculating Unemployment Rates for High Unemployment TEAs

To identify high unemployment TEAs, United States Citizenship and Immigration Services (USCIS) accepts two calculation methods: the census-share method and the ACS five-year data method. Moreover, for an area to qualify as a high unemployment TEA, the unemployment rate must be at least 150% of the national unemployment rate.

The ACS five-year data set, which includes unemployment data by census tract, is released each December for the preceding five years. In other words, the ACS data set released in December 2019 contains data covering 2014 to 2018. In December 2020, the five-year data spanning 2015 to 2019 will be released. Thus, this layer of the EB5AN TEA map remains up to date. According to this data set, the relevant base national unemployment rate is 5.86%, so to qualify as a TEA, an area must have an unemployment rate of at least 8.79%.

The census-share method combines ACS five-year data with BLS one-year data to enable users to calculate the employment and unemployment rates at the census-tract level. BLS data typically focuses on larger areas, so ACS data is used to disaggregate the BLS data. Annual BLS data is published in mid-April each year, with the data covering the previous year. In other words, the April 2020 data relates to employment data for 2019. According to the latest data set, the national U.S. unemployment rate is 3.66% for 2019, so to qualify as a TEA, an area must have an unemployment rate of at least 5.49%.

Following the publication of the latest annual BLS data in April 2020, EB5AN has updated the census-share layer of its national TEA map. Therefore, EB-5 investors and developers can keep making informed decisions about project locations and TEA designation.

The Impact of the COVID-19 Pandemic on Unemployment Rates

While the COVID-19 pandemic has had a significant impact on unemployment in the United States and the rest of the world, the full effect on the U.S. unemployment rate will not become clear until April 2021 at the earliest. This delay is due to the publication dates of the BLS and ACS data.

Annual BLS data is published in April each year, so the data released in April 2021 will reflect the current impact of the pandemic on employment. For calculations made using ACS five-year data, updated data that reflects the current employment situation will not be available until December 2021. However, monthly and annual BLS data could be useful in anticipating future TEA status.

On March 31, 2020, United States Citizenship and Immigration Services (USCIS) transitioned from its traditional first-in-first-out (FIFO) I-526 processing approach to a visa availability approach. What does this mean for EB-5 investors? It depends on their country of origin.

How the Visa Availability Approach Works

Under the previous FIFO approach, USCIS assigned I-526 petitions for adjudication based on the date of receipt. Because the unequal distribution of EB-5 demand from different countries allowed backlogs for EB-5 investors from certain countries to quickly build up, USCIS ended each fiscal year with leftover visas that could have been issued to investors from other countries if their I-526 petitions had been processed. With the new visa availability approach, I-526 petitions are assigned for adjudication based on whether there are available EB-5 visas for the investor’s country. The adoption of this processing method should reduce the number of leftover visas at the end of each fiscal year.

Who is Negatively Affected by the Visa Availability Approach?

Because USCIS uses the Chart B dates to assign petitions for adjudication, China is the only country negatively impacted by the visa availability approach. Speculation that the move could also impact Indian and Vietnamese EB-5 investors was cleared up at USCIS’s March 13 public engagement. The speakers at the engagement also revealed their belief that India’s backlog may disappear by summer 2020, further brightening the situation for Indian EB-5 investors.

China has long outpaced all other countries in terms of EB-5 demand. Under the FIFO approach, the majority of I-526 petitions adjudicated belonged to Chinese EB-5 investors, since they dominated the I-526 submissions. However, since only approximately 700 EB-5 visas are available for Chinese investors per year, both the Chinese backlog and the number of leftover visas built up. Under the visa availability approach, after accounting for the 700 or so visas available annually for Chinese investors, USCIS will prioritize I-526 petitions from EB-5 investors of other nationalities.

Who is Positively Affected by the Visa Availability Approach?

EB-5 investors from any country other than China may see positive impacts from the adoption of the visa availability approach. However, EB-5 investors from backlogged countries, like Vietnam, or countries where demand is high, like South Korea, should bear in mind that they could be negatively affected in the future.

Does the Visa Availability Approach Affect Expedite Requests?

One of the only exceptions to the new visa availability rule is expedite requests, which USCIS intends to honor regardless of the visa situation for the EB-5 investor’s country.

How Can Investors Monitor Which Countries Are Affected?

Every month, the U.S. Department of State – Bureau of Consular Affairs releases a Visa Bulletin. It contains two charts relevant to EB-5 investors.

Chart A: Final Action Dates

Chart A reveals when EB-5 investors are eligible to schedule a visa interview and apply for conditional permanent resident status. As of April 2020, investors from three countries—China, India, and Vietnam—face a backlog. Each month, EB-5 investors from these countries must check whether the final action date is on or after their priority date. If it is, they may schedule their visa interview. Investors whose countries have a “current” final action date may schedule their visa interview immediately after I-526 approval.

Chart B: Dates for Filing

Chart B is the chart that USCIS uses in its visa availability approach to determine adjudication assignments. As of April 2020, China is the only country that is not current in this chart, meaning that only Chinese EB-5 investors are affected at present. Chinese investors must check Chart B to see whether the date for filing is on or after their priority date—if it is, they may file their green card application with the National Visa Center.

In most countries, another school year is coming to an end, and youth around the world are preparing to embark on new adventures. New high school graduates will start selecting their classes at university, and new college graduates will set out in the professional world to make a name for themselves. Many of these fresh graduates have their sights set on the United States to achieve their educational and career aspirations.

The downside is that immigration is a tricky process, and many new international students and graduates in the United States are restricted by their study visas. International students are severely limited in terms of the jobs they can take during their studies, and international graduates must rush to secure employment with a company willing to sponsor them for a visa. The EB-5 Immigrant Investor Program is a godsend for both.

Brief Overview of the EB-5 Program

The EB-5 program was created in 1990 to foster the U.S. economy via the capital of foreign investors. The minimum required investment amount is generally $1.8 million but drops to $900,000 if the EB-5 project is in a targeted employment area (TEA). As long as an investor’s funds create 10 new full-time jobs for U.S. workers, the investor and his or her family are entitled to U.S. green cards.

The Benefits of an EB-5 Visa for Students

The many issues international students face when studying or working in the United States can be solved with an EB-5 visa. The following are some of the ways in which students can benefit from an EB-5 visa.

Easier Admission to U.S. Colleges

The United States is home to many of the world’s best universities, with numerous U.S. institutes making nearly every list of top colleges worldwide. Ambitious youth both in the United States and abroad dream of studying at top-tier schools such as Harvard University, MIT, Stanford University, and the University of California, Berkeley, but the admissions process is competitive, and only the best are admitted.

Unfortunately for international students, the admissions process is even more competitive than for domestic students. Typically, U.S. colleges accept a lower percentage of international students than U.S. students. However, applicants with an EB-5 visa are considered U.S. residents, which places them in a better pool for the admissions process.

Lower Tuition Costs

Depending on the college, in-state applicants may be eligible to save on tuition costs—sometimes to a substantial degree. Savings of up to $22,000 per year are possible through in-state tuition cuts. In-state applicants may also be qualified to apply to more financial aid programs or receive a wider range of scholarships. An EB-5 visa grants applicants these rights in their state of residence.

No Work Restrictions During College

While international students in the United States are entitled to receive the same high-quality post-secondary education as U.S. students, their work opportunities are severely limited. International students studying on the F-1 or M-1 visas can only take on certain jobs or internships during their college period, which puts them at a disadvantage when they graduate and try to compete with their U.S. peers on the job market.

In contrast, students with an EB-5 visa can take advantage of all the same work opportunities as U.S. students, allowing them to build up their professional experience, polish their résumé, and easily compete with their peers for jobs in the U.S. market.

Right to Continue Residing in the United States After Graduation

For many international students, the excitement of receiving their hard-earned degree at the end of their studies is followed quickly by a harsh reality: their soon-to-expire right to live in the United States. Most opt for the H-1B visa, but it requires employer sponsorship, which can be difficult to attain, and since the H-1B operates through a lottery-based system, these graduates are gambling with their future in the United States.

Graduates with an EB-5 can bypass all the bureaucratic uncertainty and anxiety their international classmates face. U.S. green card holders can receive their degrees and walk off stage confident in their prosperous future in the United States thanks to the EB-5 program.

Give Your Child the Gift of EB-5

Under the EB-5 program, entire families can immigrate to the United States, provided the children are not married and are younger than 21. However, in cases where a child is too old or married, or where the parents simply don’t wish to immigrate themselves, parents may gift their child the funds they need to participate in the EB-5 program. EB-5 capital may be the most valuable gift for a young graduate with high ambitions and dreams of a life in the United States.

A U.S. education or career is, of course, still possible without an EB-5 visa, but the EB-5 program can make your child’s journey easier and more comfortable in numerous ways. To put your child on the same level as U.S. nationals and afford them the highest chances of success, a gift of EB-5 funds is the way to go.

In their planning, EB-5 investors must bear in mind the processing times for their country of origin, as miscalculations could result in a delayed start to their child’s future. EB-5 investors from China, Vietnam, and India are subject to backlogs, which means they have to wait longer to obtain their EB-5 visa, since each country is only allocated about 700 EB-5 visas per year. The good news is that investors from all other countries can obtain EB-5 visas relatively quickly, and Indian investors may join them by summer 2020, if the current trend of low EB-5 demand continues.

The Visa Availability Approach

Announced in January 2020 and enacted on March 31, 2020, the new visa availability processing approach for I-526 petitions has made its debut, with its concrete impacts yet unclear. Even though the new processing approach brings noticeable changes to the EB-5 journey, United States Citizenship and Immigration Services (USCIS) has failed to update its Check Case Processing Times page accordingly.

Since USCIS’s estimated processing times reflect data from two weeks prior, it’s possible USCIS will not update its website until June. It is also possible that USCIS will never update the page.

The good news, however, is that according to the historical processing times, I-526 adjudications are speeding up. In the period of October 2019 to January 2020, the average I-526 processing times were down to just over 12 months—a historical low in the five-year period presented on the website. Additionally, while the processing data during the COVID-19 pandemic have not yet been released, more EB-5 investors are reporting receiving adjudications since the crisis began. With public life shut down, the Immigrant Investor Processing Office (IPO) is cooped up inside and likely has nothing much to do other than adjudicate EB-5 petitions, which is good news for EB-5 investors awaiting I-526 approval.

The Impact of COVID-19

As infection numbers and unemployment rates continue to shoot up, no one in the United States has been left unaffected. With the economy suffering unprecedented damage, the EB-5 program has the resources to help, especially given that it incentivizes investment in high-unemployment areas, termed “targeted employment areas” (TEAs). However, the current setup of the TEA system is insufficient to allow the EB-5 program to properly respond to the economic fallout of COVID-19.

TEA designation is based on unemployment averages from the year prior, which means I-526 petitions in 2020 must use figures from 2019. 2020’s skyrocketing unemployment figures will only come into play in 2021, and the overall figures depend on numerous factors, including how long the crisis lasts, how many businesses permanently shutter, and how quickly the economy rebounds.

However, even if the TEA system used current unemployment data, an additional problem hinders the EB-5 program’s ability to assist in building the economy back up: It is based on relative unemployment. If unemployment rates skyrocket all over the country, the TEA program will not incentivize investment in many areas, even if they have a dire need for economic stimulation. Only the areas hit hardest by COVID-19 job losses will enjoy the benefits of EB-5 TEA designation.

As the TEA system stands now, hard-hit areas like New York may stand to benefit from the EB-5 program, but much of the country will not, even though the entire country is likely to need the foreign investment the EB-5 program brings into the country. While the rumors of sweeping changes to the EB-5 program in response to the COVID-19 pandemic have been repeatedly debunked, more moderate changes to the program, especially to the TEA system, could dramatically improve the program’s position to help foster the U.S. economy and make sure the United States remains strong and proud.

Good things come to those who wait. The EB-5 Immigrant Investor Program is complex and popular, so expect to wait at least a couple of years by default before receiving your conditional permanent resident status. The unpredictable situation of COVID-19 may also influence wait times. Here’s how long you can expect to wait in the different stages of the program during the COVID-19 pandemic.

Time Needed to Prepare and Submit an I-526 Petition

Filing an I-526 petition is how you kick off the official EB-5 process. Each investor and EB-5 project is different, so how long this stage takes depends entirely on your individual circumstances. Consult with an immigration attorney to guide you through the process and ensure that you’re doing everything correctly. You can expect this process to take a few weeks to several months, depending on how much due diligence you need to conduct and how difficult it is to prove the lawful sources of your EB-5 capital.

Time Needed to Receive an Adjudication on an I-526 Petition

United States Citizenship and Immigration Services (USCIS) processes I-526 petitions at its Immigrant Investor Program Office (IPO). As of April 9, USCIS has closed its offices to the public until at least May 4, with closures poised to be extended if the outbreak is still not under control by then, but the IPO, which does not need to deal with the public, is continuing its normal operations. According to USCIS’s processing estimates, the processing times in April 2020 are estimated at around 31 to 50.5 months, with 43% of I-526 petitions expected to be adjudicated during this period. However, detailed processing data reveals that up to 80% of adjudications may fall outside the estimated range. Additionally, the estimates are based on data from two months prior, inevitably allowing for inaccuracy.

While EB-5 investors should prepare to wait at least two years for their I-526 adjudication, USCIS has also revealed that the average processing time for an I-526 petition from October 1, 2019, to January 31, 2020, was only slightly more than a year. You may receive your adjudication earlier than expected.

How the Visa Availability Processing Approach Affects Processing Times

Traditionally, the IPO assigned I-526 petitions for adjudication on a first-in-first-out basis, but on March 31, 2020, it adopted a visa availability approach. Under the new system, the IPO assigns I-526 petitions for adjudication based on whether there are any EB-5 visas available for the applicant’s country. Since USCIS uses the Chart B dates from the monthly Visa Bulletin, the only investors affected as of April 2020 are those from Mainland China, whose Date for Filing in the April 2020 Visa Bulletin is December 15, 2015. Therefore, Chinese EB-5 investors may face longer wait times, while investors from other countries could potentially see faster processing times.

Wait Times After I-526 Approval

Depending on your country of origin, your wait may continue even after your I-526 petition is approved. For EB-5 applicants outside the United States, USCIS sends approved I-526 petitions to the National Visa Center (NVC) to proceed with the visa application, but if you’re from a backlogged country (as of April 2020, China, India, and Vietnam are the only backlogged countries), the NVC will hold off on contacting you until your priority date is earlier than the final action date of your country. The backlogs move in unpredictable ways, so if you’re from a backlogged country, expect to wait several more months or even years.

Time Needed to File and Receive Adjudication for an I-485 Petition or DS-260

If you’re living outside the United States, you can start the process of filing your DS-260 form to apply for a U.S. green card once the NVC contacts you. You must carry out the process through your local U.S. consulate or embassy, but since all U.S. consulates and embassies are currently closed due to the coronavirus pandemic, you will have to wait until public life opens back up.

If you already live in the United States under a different visa, you can skip the NVC step and simply file an I-485 petition to adjust your immigration status. Since you don’t need to visit a consulate in this case, COVID-19 may have little impact on your EB-5 visa. In fact, EB-5 investors already residing in the United States may even obtain their EB-5 visa faster because they may receive visas originally intended for investors overseas.

Time Needed to Schedule a Visa Appointment and Obtain an EB-5 Green Card

As mentioned above, because USCIS has suspended regular operations at consulates and embassies, overseas investors cannot proceed past I-526 approval until the COVID-19 crisis subsides.

EB-5 investors already living in the United States may also face setbacks if they require an interview or biometric appointment. With USCIS offices across the United States closed until at least May 4, many domestic EB-5 investors will also find their EB-5 process stalled.

Even in the best of times, there is no specific time frame for how long it takes to obtain an EB-5 visa after your visa interview, but with overseas investors unable to proceed with their applications, if you are applying from overseas, you should expect to wait several more months.

One of the most dreaded experiences for participants in the EB-5 Immigrant Investor Program is receiving a Request for Evidence (RFE) from United States Citizenship and Immigration Services (USCIS). Not every EB-5 investor encounters this anxiety-inducing situation, but those who do need to plan their response carefully to not jeopardize their chance of obtaining U.S. permanent residency.

What Is an RFE?

The most important thing to understand about USCIS RFEs is that they do not mean your I-526 petition will be denied. This differentiates them from Notices of Intent to Deny (NOIDs), in which case USCIS does intend to deny your petition unless you clear up any misunderstandings.

You can think of both RFEs and NOIDs as a second chance for an EB-5 visa. USCIS issues NOIDs to warn EB-5 investors that the evidence provided in their EB-5 petition will lead to a denial if they don’t clear up the issues USCIS identifies. USCIS RFEs are less frightening, as they are issued when the evidence in a petition is insufficient to support an adjudication, either positive or negative. USCIS will be forced to deny your EB-5 petition if you do not provide the requested information by the specified due date, but an RFE does not indicate an intention to deny your EB-5 petition.

What Information Does an RFE Contain?

Luckily for EB-5 investors, USCIS RFEs contain ample information to help them formulate a proper response. USCIS explains in detail why it has issued the RFE—typically in response to missing documentation, unclear evidence, discrepancies, or other data-related problems. If the petition is lacking essential documentation, the RFE will identify the necessary documents, and if it contains unclear or contradictory information, the RFE will identify the problem areas. In most cases, RFEs also provide examples of suitable evidence to provide in the RFE response.

In What Situations Might an EB-5 Investor Receive an RFE?

I-526 petitions are complicated, so there are many areas where issues can arise. EB-5 investors often receive USCIS RFEs in response to insufficient evidence documenting the lawful sources of their EB-5 capital or the path of their funds into the EB-5 project. USCIS also sends out RFEs for additional information on the EB-5 investor’s personal background.

While investors often receive USCIS RFEs regarding investor-level information, they may also need to provide supplementary information on the EB-5 project. For example, USCIS may request additional information on the hiring schedule or business plan of the new commercial enterprise (NCE).

In some cases, EB-5 investors may even receive an RFE because USCIS overlooked documentation they provided. USCIS agents are not infallible, and the complexity of I-526 petitions makes it easy enough to overlook information. In this case, all you need to do is resubmit the requested evidence. Don’t waste this opportunity to scrutinize your documentation and make changes if necessary, however. Explain in a cover letter that you are resubmitting an overlooked document, but identify and justify any changes you have made.

How to Respond to an RFE

The first step to responding to a USCIS RFE is to carefully read all the information provided therein. RFEs always include a deadline for responding, which EB-5 investors must consider when preparing their response. Since failure to respond to an RFE will lead to denial, investors cannot afford to delay their response. Stay calm—if you follow USCIS’s instructions and provide a suitable response, your I-526 petition will likely proceed smoothly.

In addition to the requested evidence, an RFE response should always include a detailed cover letter that addresses all the concerns USCIS has identified and clearly organizes all the attached documents. Use your given time wisely and compose a well-thought-out cover letter. Ask others to check it to ensure it’s sufficiently thorough and clear.

When confronted with a USCIS RFE, consult experienced EB-5 experts to help formulate an appropriate response. The EB5AN team consists of long-time professionals in the EB-5 sphere who understand the ins and outs of the program. Our team can assist you with preparing documentation, refining business plans, and other matters related to RFE responses. Reach out to us, and we can help you craft a high-quality response to your RFE.

Not all EB-5 journeys are the same. There exist two main pathways to a U.S. green card through the EB-5 visa program—direct investment and regional center investment. Both have advantages and disadvantages, depending on the investor’s goals and wishes, but far more EB-5 investors opt for regional center investment because it is generally considered more advantageous. Below are some of the benefits of investing through an EB-5 visa regional center.

Lower Immigration and Financial Risk

Reputable regional centers select the projects they take on extremely carefully. While investors are always strongly recommended to Conduct their own due diligence on a project, projects offered by EB-5 visa regional centers are likely to be high quality and pose lower immigration and financial risk. Many EB-5 visa regional center projects also have exemplar status, which significantly facilitates the I-526 process for investors.

Regional center projects also tend to be located in targeted employment areas (TEAs). TEAs are urban areas where the unemployment rate is 50% higher than the national average or rural areas with fewer than 20,000 inhabitants. EB-5 investors working with TEA projects need only invest $900,000, while those involved with projects outside of a TEA must invest at least $1.8 million.

Limited Managerial Duties

For EB-5 investors with managerial skills and experience who wish to be heavily involved in the new commercial enterprise (NCE), direct investment is a good idea. For the rest, however, EB-5 visa regional centers are preferable.

One of the EB-5 program’s requirements is that the investor be involved in the management of the NCE, which, for direct investments, typically means conducting day-to-day managerial activities. Depending on the structure of the project, however, investors may also satisfy this requirement by engaging in policy formation (i.e., voting on matters). This option is typically available for investors who invest through EB-5 visa regional centers, lifting the burden of managerial responsibility from their shoulders.

Easier Job Creation Requirements

Regardless of the EB-5 path an investor chooses, all investors are required to demonstrate the creation of at least 10 new permanent, full-time jobs as a result of their investment. One of the biggest advantages of regional center investment is the relaxed requirements surrounding this rule.

Direct EB-5 investors must prove the creation of at least 10 new direct jobs, which are either construction jobs or jobs on the NCE’s payroll (investors can count construction jobs only if construction lasts for at least two years). To satisfy the job creation requirements, direct EB-5 investors should be highly experienced in business management and confident in their ability to help drive the NCE to success.

The job creation requirement is easier for regional center investors. Regional center EB-5 investors are permitted to include indirect jobs (the jobs of external suppliers and service providers) and induced jobs (jobs created in the community by the NCE’s employees spending their wages), as long as they use accepted economic methodologies to calculate job creation. Therefore, the job creation requirement is far easier to meet with regional center investment, which lowers immigration risk.

The Freedom to Live Anywhere in the United States

Most EB-5 investors who directly invest in a project participate in the daily management of the NCE, meaning they are tied to the project’s location. The most attractive EB-5 projects for investment—those located in TEAs—may not be in the most desirable areas to live, and there may be no areas nearby where the EB-5 investor wishes to live.

Regional center investors are free from this burden. With their role as a limited partner being enough to satisfy the managerial involvement requirement, investors who work with an EB-5 visa regional center are free to live anywhere in the United States regardless of the location of their EB-5 project. This gives EB-5 investors the freedom to choose the most promising EB-5 project they can find without restricting their living opportunities. With regional center investment, an investor can invest in an EB-5 project in Florida and live in Massachusetts.

Another bonus of this freedom is that regional center investors can work or study during their investment process. An EB-5 visa offers easier access to U.S. colleges and universities, making it the perfect solution for students. With nothing tying investors to the state of their EB-5 project, they may study anywhere in the United States.