The United States of America—the name alone conjures up images of wealth and freedom in the minds of people worldwide. Immigration is not easy, however, and with people all over the world clamoring at the chance for a life in the United States, most cannot realize their dream. If you’re a foreign investor, an EB-5 visa investment may be the best way to secure a life in the United States for yourself and your family.

For an investment of $900,000 or $1.8 million, depending on whether your chosen EB-5 project is in a targeted employment area (TEA), the EB-5 program can provide you with permanent resident status in the United States for yourself, your spouse, and your unmarried children below the age of 21. Your EB-5 visa investment will have been successful if it funds the creation of a minimum of 10 new full-time jobs filled by legal U.S. residents. It will typically take at least two years, and sometimes more than five years, depending on your country of origin, to obtain conditional permanent resident status, but the EB-5 program remains one of the easiest ways for foreign investors to obtain a U.S. green card.

U.S. permanent resident status offers countless benefits. Here are a few examples.

Live, Work, Study, and Travel Anywhere in the United States

Once you make an EB-5 investment and become a U.S. permanent resident, the entire country is open to you. You are free to live anywhere in any of the 50 states and may travel freely between them anytime you desire. You can work at a company anywhere in the United States without needing to be sponsored, and you have access to the many top-quality education institutes all across the United States.

You may take advantage of this freedom even before you have removed the conditions from your permanent resident status by filing an I-829 petition. If you invest through a regional center, you will not be bound to the physical location of your EB-5 project, so you can seek out projects with minimal financial and immigration risk without restricting yourself to a particular state. You can invest in an EB-5 project in Florida but live in California—that’s just a taste of the American freedom you’ll enjoy as a permanent resident.

Secure a High-Quality Education for Your Children

One of the things the United States is renowned for is its prestigious post-secondary education institutes. All across the country are phenomenal schools that can provide your child with a life-changing education, but obtaining admission as an international student can be difficult, not to mention pricy. A benefit of EB-5 visa investment that attracts families worldwide to the program is facilitated access to U.S. colleges and universities, which can help propel your child toward professional success.

The educational benefits of an EB-5 visa investment start even before college, too. If your children are grade-school aged, they can significantly benefit from a U.S. public school education. Not only will they receive a high-quality, well-rounded education that helps them hone their talents and prepares them for the U.S. post-secondary environment, but they’ll also learn English to a level otherwise unattainable for most non-native speakers, be immersed in U.S. culture, and develop valuable friendships with locals. The value of a U.S. public education is multifaceted and cannot be overstated.

Become a U.S. Citizen

The only thing better than being a U.S. permanent resident is being a U.S. citizen. While permanent residents must adhere to certain guidelines regarding stays abroad, U.S. citizens may spend as much time abroad as they wish without fear of their citizenship being revoked. Additionally, U.S. citizens may vote and obtain U.S. passports, which are among the strongest in the world.

A foreign national may apply for U.S. citizenship after five years of permanent residence, including conditional permanent residence. That means you may be able to apply for naturalization just four or five years after your initial EB-5 investment, depending on your country of origin.

U.S. law does not require foreign nationals to renounce their citizenship when they become U.S. citizens, which means you may be a dual citizen of the United States and your country of origin, if your country recognizes dual citizenship. This is particularly useful if you would like to continue spending significant time in your birth country but want a safe haven to escape to in case war, civil unrest, disease, or another threat to your wellbeing in your birth country breaks out. U.S. citizenship is perhaps the most valuable return you can earn on your EB-5 visa investment.

The world has been thrust into the largest global disaster since World War II, with countries all over the world seeing high numbers of COVID-19 infections and deaths. The unprecedented catastrophe has ushered in a new era of social distancing and lockdowns, but the EB-5 program continues on.

Since March 18, 2020, United States Citizenship and Immigration Services (USCIS) offices have been closed to the public in part of the national effort to curb the spread of the deadly virus, but the Immigrant Investor Program Office (IPO) continues to adjudicate I-526, I-829, I-924, and I-485 petitions. I-526 processing times are even slightly down, perhaps because forgoing other activities means more time for EB-5 adjudications.

Visa Appointments Postponed

EB-5 investors with biometric appointments will find their EB-5 process delayed, as USCIS has canceled all visa appointments until the economy opens back up. As of March 30, closures have been extended to April 30. EB-5 investors with scheduled visa appointments may receive rescheduling notices, although the future is unpredictable. EB-5 petitioners with upcoming biometric appointments may receive rescheduling notices with instructions.

Electronic Signatures Temporarily Accepted

For the duration of the COVID-19 crisis, USCIS has announced that it will accept electronic signatures in lieu of original “wet” signatures. However, EB-5 petitioners are instructed to keep original copies on hand, and USCIS may request them at any time. Failure to produce requested original documents could result in a denied petition.

Flexible Deadlines for RFEs and NOIDs

A further adjustment USCIS has made is extending the deadline for responding to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). Any EB-5 investor who receives an RFE or NOID between March 1 and May 1, 2020, is allotted an additional 60 days past the deadline given on the notice to respond. As long as USCIS receives a response within 60 days of the deadline, EB-5 investors will not be subject to any negative impacts.

Consulate and Embassy Closures

As of March 20, 2020, U.S. consulates and embassies all around the world have suspended routine visa services due to the COVID-19 pandemic. Emergency visa services are still available, but EB-5 investors living abroad can no longer attend their visa appointments or apply for their EB-5 visas. While EB-5 investors overseas are facing a setback in their EB-5 process, the pandemic may offer an opportunity to the investors already residing in the United States, since USCIS is continuing to process I-485 Petition to Adjust Status forms. Domestic investors may receive visas originally earmarked for EB-5 investors overseas.

EB-5 Coronavirus Rumors

There are no plans to lower the minimum required investment amount and increase the number of available EB-5 visas as part of the coronavirus relief bill—but nonetheless, the rumors continue to circulate. Senator Lindsey Graham, rumored to be leading the movement, has repeatedly denied the reports, but they are spreading like the virus itself, inviting media criticism of the EB-5 program and damaging the image of the program.

EB-5 investors have two possible investment methods in the EB-5 program: direct investment in a new commercial enterprise (NCE) or indirect investment through a regional center. Depending on an investor’s goals and skills, direct investment may be suitable, but most EB-5 investors choose regional center investment because it offers several benefits.

Lower Immigration and Financial Risk

One of the primary benefits of EB-5 regional center investment is the higher chances of success, both in terms of obtaining U.S. permanent resident status and earning a lucrative return on investment. Regional center investment offers lowered EB-5 project risk in a variety of ways:

• EB-5 investors do not need to be heavily involved in the day-to-day management of the NCE, reducing risk for investors with insufficient managerial experience.
• EB-5 investors who work with a regional center with government preapproval may not need to present as much evidence to prove their investment has met EB-5 requirements.
• Regional centers rigorously vet projects to ensure high quality and low risk.

Higher Likelihood of TEA Designation

Both regional center projects and direct EB-5 projects may qualify for the lower minimum investment amount ($900,000) if they are located in a targeted employment area (TEA), but regional centers tend to carefully select projects that qualify for TEA designation. Investors who invest directly and wish to invest the lower minimum amount must calculate the TEA qualifications of potential projects themselves.

Relaxed Requirements for Job Creation

EB-5 investors who work with regional centers may include indirect and induced jobs in their job calculation analysis, making it easier to fulfill the job creation requirement. No matter the route investors choose, their EB-5 investment must fund the creation of at least 10 full-time, permanent jobs for legal U.S. workers. The requirement is easier to fulfill when investors are permitted to include the jobs of external suppliers and service providers of the NCE (indirect jobs) and the jobs fostered in the community through the spending of the NCE employees (induced jobs).

The Freedom to Live Anywhere in the United States

Since EB-5 investors who choose the direct investment route are required to participate in the project’s management, they are bound by the geographical location of their EB-5 project. For regional center EB-5 investors, since the regional center takes care of the managerial duties, investors are free to live wherever they please. Investors can even live on the opposite side of the country: If you want to invest in an EB-5 project in Florida but live in Chicago, the regional center program allows you to.

Benefits of Direct Investment

While there are many advantages to regional center investment, direct investment may still be the optimal path for some investors. In particular, EB-5 investors looking to expand their business to the United States may find direct investment more profitable. For investors with managerial experience, direct investment can be a good idea, as they have direct control over their investment and have the potential to make larger profits.

If you’re considering direct investment in an EB-5 project, you should also think about the various downsides:

• Direct investment projects are less likely to be located in a TEA.
• You may need to live close to your EB-5 project, which may be undesirable if the project is located in a high unemployment or rural area.
• You will likely incur higher financial and immigration risk.
• Your funds must facilitate the creation of at least 10 new direct jobs—either construction jobs or jobs on the NCE’s payroll.

What Makes the EB-5 Program Ideal?

The main reason investors worldwide flock to the EB-5 program is to obtain a U.S. green card, which can eventually lead to U.S. citizenship, if investors choose to apply for naturalization. Below are some of the advantages of the EB-5 visa:

• EB-5 investors can apply for permanent resident status for their spouse and unmarried children younger than 21.
• Investors (or their children) can more easily gain admission to U.S. colleges.
• Investors can take advantage of the many business and investment opportunities in the United States.
• Investors may work at any company anywhere in the United States.
• Investors may travel freely around the United States and even abroad.

Many parents around the world wish to continue their lives in their native country, where they have established social and business contacts, but would like to offer their children the rich opportunities that a life in the United States provides. The EB-5 Immigrant Investor Program is the ideal pathway to procure U.S. permanent resident status for your child, as gifts are accepted as EB-5 investment funds.

Proving the Source of Funds

One of the EB-5 requirements is documenting the source of the EB-5 capital used. While your child can cite a gift from you as the source of their EB-5 capital, you must also prove that you have obtained the funds lawfully. This may include providing tax returns, investment documents, business earning statements, sale of assets documentation, or other documentation. You may also have to officially declare that your child is not required to repay you for the gift.

Tips

• Some funds are easier to trace than others. Discuss the matter with an immigration attorney to determine which funds to gift as EB-5 capital.
• Gather the needed documentation, organize it neatly, and prepare copies to give to your child to include in the I-526 petition.
• Depending on the language of the documents, you may require translation services. Be sure to start early enough in advance to complete the process in a timely manner.

The Benefits of EB-5 for Students

The EB-5 program is a fantastic solution for international students looking to study abroad or remain in the United States following graduation. You may consider preparing fund documentation and other necessary processes while your child is still in grade school so he or she can take full advantage of the simplified admissions process to U.S. colleges that EB-5 offers. Throughout your child’s college career, he or she will be able to work and travel freely, and upon graduation, your child can remain in the United States without requiring sponsorship from an employer.

If you are a student considering the EB-5 program, you may also use inheritance money for your investment. Consult an immigration attorney to discuss what documentation you will need to provide to prove the sources of your inheritance money.

Canada is an underrepresented nation when it comes to EB-5 investors, but Canadian investors may be missing out on a valuable opportunity. The EB-5 Immigrant Investor Program offers numerous benefits to Canadian investors interested in U.S. permanent resident status.

A Rich Business Landscape

The largest economy in the world, the United States offers Canadian entrepreneurs the optimal landscape for starting new businesses or expanding existing ones. Improving opportunities further, EB-5 investors are eligible to apply for U.S. citizenship after five years of permanent resident status, which is particularly enticing for Canadians, since both the United States and Canada allow dual citizenship.

Access to the World’s Top Educational Institutes

When it comes to post-secondary education, the United States dominates, with several U.S. universities among the highest-ranked in the world. Canadian investors (and their children) who immigrate to the United States on the EB-5 visa can more easily enroll in prestigious U.S. universities. Even better, if they invest through a regional center, they are not bound to the state of their EB-5 investment, so they may study at any institute in the United States without fear of forfeiting their EB-5 visa.

Warm Weather

Even in the Vancouver area, where Canadians can escape the snow volumes seen in the rest of the country, winter temperatures are nowhere near balmy. Canadian investors looking to permanently enjoy the beautiful weather of California, Florida, or Hawaii year-round can invest in the EB-5 program for their ticket to a nice, warm climate. The United States boasts extreme geographic diversity, so Canadian EB-5 investors can choose the right climate for them.

The Right to Live in the United States

There are a variety of reasons Canadian nationals may want to relocate to the United States. Many Canadians have U.S. relatives and may want to move closer to their family. Major U.S. cities such as New York City and Los Angeles also boast some of the world’s best lifestyle and entertainment options, which entices countless Canadian nationals.

The EB-5 visa program is a solid choice for Canadian investors, regardless of why they wish to relocate to the United States. The main program requirements are $1.8 million ($900,000 if the project is in a targeted employment area, defined as a high unemployment or rural location) and the creation of 10 new full-time permanent jobs. Successful EB-5 investors receive EB-5 visas for themselves as well as their spouse and unmarried children below the age of 21.

The recent diminished EB-5 demand from India is good news for Indian EB-5 applicants who have already invested in the EB-5 Immigrant Investor Program. New information from United States Citizenship and Immigration Services (USCIS) suggests the Indian EB-5 priority date will become current by summer 2020.

The Current Final Action Date for Indian EB-5 Investors

The recently released Visa Bulletin for April 2020 reveals a jump forward for the Indian EB-5 priority date. Now, any Indian EB-5 investors whose priority dates are earlier than January 1, 2019, are eligible to apply for their U.S. conditional permanent resident status. A recent decrease in demand has freed up more visas for Indian EB-5 applicants.

Indian Final Action Date to be Current by Summer 2020

On March 13, 2020, USCIS held a public engagement and announced the prediction that the Indian final action date would become current by summer 2020. Unless EB-5 demand in India picks back up, USCIS predicts the Indian final action date to then remain current for the foreseeable future. Applicants from countries with “current” final action dates are eligible to apply for a visa immediately upon approval of their I-526 petition.

A New Processing Approach at USCIS

The visa availability processing approach, announced in January 2020 and taking effect March 31, 2020, is a new I-526 processing method meant to replace the traditional first-in-first-out method. Instead of assigning I-526 petitions for adjudication based on their date of receipt, USCIS assigns petitions for adjudication based on whether there are immediately available visas for the respective country. USCIS uses the dates listed in “Dates for Filing” (Chart B of the Visa Bulletin) to determine the availability of visas per country. As of March 2020, Mainland China is the only country whose “date for filing” is not current.

Current I-526 Processing Time Range

Currently, USCIS estimates the processing times for I-526 petitions to be between 33 and 50 months (2.8 to 4.2 years). However, processing data from the first quarter of FY2019 have revealed that many petitions fall outside the estimated processing time range, with many being adjudicated slightly faster than expected. It is also important to note that the current processing estimates are based on data from two months prior and are thus not a 100% accurate snapshot of the current situation.

New Tax on Indian Remittances

Starting April 1, 2020, the Indian government is levying a new tax on remittances out of India. Indian EB-5 investors will be required to pay 5% of their remittance amount in taxes, which amounts to $45,000 for EB-5 investments of $900,000 or $90,000 for investments of $1.8 million (the minimum investment amount depends on the targeted unemployment area designation of the project). The new tax could push EB-5 demand in India down even further.

One of the requirements of a successful EB-5 visa investment is that the investment capital be at risk for the duration of the investment.

This does not mean that EB-5 investors are required to invest in “risky” projects. Quite the contrary—EB-5 investors are strongly recommended to conduct thorough due diligence to minimize their exposure to financial and immigration risk. The “at risk” requirement is in place to ensure investors actually invest their capital in new commercial enterprises (NCEs) that can create jobs and boost the economy and not simply “buying” a U.S. green card. The EB-5 investment must incur a risk of loss as well as a chance of gain.

To be eligible for an EB-5 visa, investors must also demonstrate in their I-526 petition that their investment is at risk according to the requirements of the EB-5 program. Investors must make the investment prior to submitting their application, as intent to invest or prospective investment arrangements are not sufficient to prove an at-risk investment.

Matter of Izummi

Matter of Izummi and provisions in the USCIS Policy Manual 6(G)(2)(A) that cite Matter of Izummi lay out many of the details related to the EB-5 “at risk” requirement. Factors to consider include contractual obligations, the ownership and use of assets, and the transfer of investment amounts.

Any guarantees on the part of the project developer are prohibited—for an EB-5 investment to be at risk, there must be a chance of financial loss. The financial resolution of the investment cannot be artificially determined before the investment. Contractual rights to repayment are not allowed, and the investor must acknowledge the potential of significant financial loss. Profit distributions are permitted, but only if they are not guaranteed and not a portion of the investor’s minimum investment amount.

If an EB-5 investor is guaranteed eventual ownership or use of an asset, the expected value of the asset will be subtracted from the minimum qualifying EB-5 investment. Thus, such guarantees are permitted, but only if the investor transfers more capital than necessary and the value of the asset does not cut into the minimum required EB-5 investment amount.

Investors must also transfer the EB-5 investment amount to the NCE in full. Partial investments or installments are not permitted.

Matter of Ho

Matter of Ho lays out an additional rule for the “at risk” requirement.

For an EB-5 investment to be considered at risk, the investor must provide evidence of the project actually undertaking business activity. Without proof of actual business activity on the part of the project, United States Citizenship and Immigration Services (USCIS) cannot know whether the entity is bona fide and whether the investment will be used to stimulate the economy as intended.

The “At Risk” Requirement in Practice

The following are real-life examples of USCIS enforcing the “at risk” requirement.

Funds Not Made Available to the Job-Creating Entity

It’s not enough to prove the transfer of EB-5 capital in full—the invested funds must also be demonstrated to be fully available to the job-creating entity (JCE). One EB-5 investor found her I-526 application denied after transferring her investment capital to an escrow account for the NCE to loan to the JCE. The problem was that the program description memorandum and loan agreement did not mandate the NCE to loan the amount to the JCE. In this particular case, construction on the JCE was also completed while the applicant’s funds were still in escrow, pending her I-526 approval. Based on the JCE’s lack of reasonable need for the investment capital and the lack of obligation for the NCE to loan the amount to the JCE, the investor’s I-526 petition was denied.

Lack of Demonstrable Business Activities

If a project cannot prove the commencement of business activities, its EB-5 capital is not considered at risk. One JCE landed itself a denial for an application for exemplar status because USCIS could not determine that the entity was conducting business activities. When USCIS visited the project site and found no construction activities, they doubted the legitimacy of the project and issued a denial. The applicant then filed a repeal, providing construction contracts, building permits, inspection records, and other evidence of business activities. The new evidence was sufficient, and USCIS then approved the project’s request for exemplar status.

No Chance for Profits

EB-5 investments must, by EB-5 rules, offer the investor a chance at profits. One EB-5 investor’s petition was denied because the contract she signed with the NCE did not grant her rights to the entity’s profits. Interest payments upon maturity of the loan were optional, at the discretion of general partner, and would come from unspecified sources. The contract did not satisfy USCIS’s requirements for an at-risk investment, resulting in the denial of the applicant’s I-526 petition.

As long as an EB-5 investment offers a chance of profit, there are no rules for how good the investment must be. USCIS once tried to deny an I-526 petition because the investment terms would make it extremely difficult for the EB-5 investor to break even on the investment. However, the Administrative Appeals Office (AAO) disagreed, finding that the investment still incurred the chance for profit and the risk of loss, even though it was a poor investment in terms of financial risk.

Conducting Due Diligence for the “At Risk” Requirement

In addition to evaluating a potential EB-5 project’s financial and immigration risk, EB-5 investors should consider provisions or circumstances that could violate the “at risk” requirements of the EB-5 program. Below are some questions to ask to determine whether the “at risk” requirement will be met.

• Are there any terms in the investment agreement that are similar to an equity interest?
• Are the chances to both profit from and lose money on the EB-5 investment evident in the business plan and offering?
• Are there any guarantees from the NCE for a rate of return or the ownership of an asset that could be subtracted from the qualifying EB-5 investment amount?
• Is the NCE obligated to make the EB-5 capital available in full to the JCE, and are there any fees in place that could impact the amount of funds that the JCE receives?
• Does the business plan stipulate the time and manner in which the JCE will deploy the invested EB-5 capital in full?
• Does the business plan indicate ongoing business activities?

These questions are applicable to due diligence for I-526 petitions. EB-5 investors are also required to meet “at risk” requirements for their I-829 petition, but the rules are somewhat different. Investors must demonstrate that their EB-5 investment funds have remained at risk for the entire period of their conditional permanent residence in the United States.

COVID-19 has made its way to nearly every country in the world, with confirmed cases building quickly in New York, California, and other states across the United States. Schools are closing and businesses are shutting down—some permanently—resulting in major layoffs. Politico has falsely reported that to stimulate the economy in these chaotic times, President Trump is considering raising the number of available EB-5 visas to 75,000 and reducing the required investment amount to $450,000.

The EB-5 Immigrant Investor Program was born in 1990 as a way to entice foreign nationals to invest in the U.S. economy and job market in exchange for permanent residence—the right to live and work permanently in the United States.

Roughly 10,000 visas are available each fiscal year for EB-5 investors and their spouses and unmarried children below the age of 21. Some EB-5 projects are classified as being located within a targeted unemployment area (TEA), which is defined as an urban area with high unemployment or a rural area. Until 2019, EB-5 investors were required to invest $500,000 in a TEA project or $1 million in a non-TEA project. When the EB-5 Modernization Rule came into effect in November 2019, the amounts were increased to $900,000 and $1.8 million, respectively.

Politico reported that, in a movement headed by Senator Lindsey Graham (R-SC), a new reduction to an unprecedented low may be introduced to combat the economic turmoil caused by COVID-19. Graham has spoken out about the matter, declaring that the report is false and that he is not using the coronavirus recovery bills to promote the EB-5 program.

The EB-5 program has previously helped stimulate the U.S. economy after periods of chaos, such as after the 2008 recession. Project developers turned to the EB-5 program when loans from banks became difficult to obtain, and the program grew to new heights—since 2008, EB-5 investors have contributed an estimated $37.2 billion to fostering the U.S. economy. Between FY2010 and FY2015, the EB-5 program drove down unemployment by creating around 276,000 new full-time jobs and boosted national infrastructure by generating approximately $5 billion in tax revenues.

Most EB-5 investors invest in TEA projects, which are located in areas in greater need of economic stimulation. To be eligible for the EB-5 visa, investors need to prove that their capital has funded the creation of at least 10 new full-time jobs for U.S. citizens and residents, and their capital must remain at risk until they receive their unconditional permanent resident status after at least two years. Though changes to the EB-5 program in light of COVID-19 are not being considered at present, the program remains a powerful way to create new jobs, which may be desperately needed after the resolution of the coronavirus pandemic.

In 2019, the EB-5 Modernization Rule brought some major changes to the EB-5 visa investment program. The changes have left EB-5 investors, project developers, and regional center managers alike confused and full of questions. Some of these questions were finally cleared up during the United States Citizenship and Immigration Services (USCIS) public engagement held on March 13, 2020. Here are the answers to some of the most common questions about the EB-5 Modernization Rule.

Priority Date Retention

Who is eligible to retain their priority date?

Depending on an EB-5 investor’s circumstances, he or she may be eligible to retain the priority date of a previously approved I-526 petition when filing a new I-526 petition on or after November 21, 2019. This benefit is only valid for EB-5 investors applying from abroad and does not apply if the investor’s previous I-526 petition was revoked for fraud or willful misrepresentation.

How can EB-5 investors request to retain an earlier priority date?

To make sure their new I-526 petition is filed with their existing priority date, when EB-5 investors file their new I-526 petitions, they should include a letter in which they formally request priority date retention. In addition, investors should fill out and include Form I-824 in their applications.

Increased Minimum Investment Amount

What have the minimum EB-5 investment amounts increased to?

Targeted employment areas: $900,000

Non-targeted employment areas: $1.8 million

When did the new minimum investment amounts come into effect?

The new minimum investment amounts apply to any EB-5 investors who filed their I-526 petition on or after November 21, 2019. For EB-5 investors who filed before November 21, even if their petition was pending on November 21, and even if they have not yet transferred the full investment amount, the old minimum investment amounts remain valid.

If an EB-5 investor files a new I-526 petition but retains his or her previous priority date, which minimum investment amount is he or she subject to?

The new rules apply to any EB-5 investor filing on or after November 21, 2019, without exception. Investors filing new I-526 petitions must adhere to the new rules and requirements, including the new minimum investment amounts, regardless of whether they retain their priority date.

Targeted Employment Area (TEA)

Do the TEA changes affect EB-5 investors who filed before November 21, 2019?

No.

How can EB-5 investors determine whether an EB-5 project is in a high-unemployment TEA?

The American Community Survey (ACS) and the Department of Labor–Bureau of Labor Statistics (BLS) are accepted by USCIS as credible data sources. EB-5 investors must simply be consistent with whichever source they use.

How can EB-5 investors prove under the new rules that their EB-5 project is located in a TEA?

According to USCIS, EB-5 investors can submit the following evidence to prove the TEA designation of their chosen EB-5 project:

• The location where the new commercial entity (NCE) conducts the majority of its business activities
• A map that shows the census tract(s) in which the NCE conducts the majority of its business as well as directly adjacent tracts, if applicable
• The calculation used to determine the weighted average employment rate for the given location
• Credible unemployment statistics data for the given area
• Evidence backing up the credibility of other data provided

Can TEA designation from approved I-526 petitions filed before November 21, 2019, be carried over to new petitions from the same investor filed on or after November 21?

No. Any I-526 petitions filed on or after November 21, 2019, are subject to the new TEA rules, without exception.

Removal of Conditions on Permanent Resident Status

Are spouses and children required to submit their own separate I-829 petitions?

Yes, every person associated with an EB-5 investment must file a separate I-829 petition. The only exception is if the EB-5 investor has passed away, in which case the spouse and children submit a single petition together. EB-5 investor children who married or turned 21 during their two years of conditional permanent residency, as well as EB-5 investor spouses who got a divorce during this period, are still eligible for a U.S. green card on the investor’s principal I-829 petition.

One of the requirements of the EB-5 program is that an investor’s capital has been obtained through “legal sources.” What exactly does United States Citizenship and Immigration Services (USCIS) mean by “legal sources”? It’s important to know because EB-5 investors must document the lawful source of their funds on their I-526 petition.

What Documents Should EB-5 Investors Submit to Prove Source of Funds?

According to the USCIS website, a variety of documents are suitable as evidence of the lawful source of EB-5 funds. I-526 petitioners must submit the following documentation, where applicable:

• Tax returns filed within the last five years for a corporation, partnership, or other entity
• Personal tax returns filed within the last five years for income, a property, a franchise, or anything else
• Registration records for a foreign business
• Other documentation indicating the source of funds, such as documentation certifying the sale of an asset, inheritance papers, or documentation certifying the donation or gifting of the capital to the investor.
• Certified copies of judgments of evidence of pending actions involving monetary judgments against the petitioner within the past 15 years, whether in the United States or abroad

In addition to proving the lawful source of funds, EB-5 investors are required to show the path of their capital to the new commercial enterprise (NCE). Examples of suitable documentation include wire transfer records and bank statements.

Documenting the lawful source of their EB-5 capital can be a time-consuming process for investors, depending on the sources of capital they choose. They may need to gather large amounts of documentation spanning several years.

Every EB-5 investor’s situation is different, and USCIS may require investors to submit more evidence than listed above, depending on their circumstances. Investors must discuss the matter with immigration counsel to ensure they don’t miss any essential documentation.

Examples of Suitable Source of Funds Documentation

Common examples of documents EB-5 investors may submit to prove the source of their EB-5 investments include the following:

• To prove salary earnings, income tax returns, W-2s, contracts of employment, bank statements, and more
• To prove the sale of a business, a business registration certificate; documentation of the sale of the business; documentation proving their ownership, directorship, or officership of the entity; an appraisal of the business from a certified accountant, and more
• To prove investment earnings, documentation of investment accounts over the past three or more years, stock certificates, bank statements, and more
• To prove the sale of property, the purchase and sale agreements, a certificate of ownership, a deed tax certificate, bank statements, a loan contract, and more
• To prove a loan, bank statements, documentation showing the loan, asset appraisals, documentation showing the sources of the lender’s capital, and more

While these are the most common sources of EB-5 capital, EB-5 funds may also be sourced from inheritance, gifts, divorce income, lawsuit judgments, and more. If an investor receives EB-5 funds as a gift from parents, relatives, or friends, the donor must prove the lawful source of their funds for the gift.

Tips for Documenting the Source of Funds

Although collecting the required source of funds documentation can be time-consuming and cumbersome, EB-5 investors can take several steps to facilitate the process:

• Consult an immigration attorney to determine which sources of funds are most appropriate to use and figure out what documentation to gather.
• Store potential investment funds in a separate account to make tracking easier.
• Start well in advance so they have time to have all their documents translated, if necessary.