One of the most significant changes to the EB-5 Immigrant Investor Program following the enactment of the EB-5 Reform and Integrity Act (RIA) of 2022 was that individuals present in the United States who hold other types of visas became eligible for EB-5 concurrent filing, through which immigrant investors can submit Form I-526 and Form I-485 simultaneously.

As a result, prospective EB-5 investors can apply for the program and go through the interview process while continuing to work in the United States under a different non-immigrant visa, thereby significantly streamlining the application process.

In this article, we will discuss the benefits EB-5 concurrent filing presents by accelerating investors’ transition to permanent resident status.

What Is EB-5 Concurrent Filing?

EB-5 concurrent filing is the act of submitting both Form I-526/I-526E and Form I-485 to U.S. Citizenship and Immigration Services (USCIS) at the same time. Concurrent filing of these two petitions allows eligible EB-5 investors who are already present in the United States to accelerate the process of obtaining a Green Card.

However, foreign nationals must meet certain eligibility criteria to be able to submit these two forms simultaneously. It is recommended that EB-5 investors seek legal guidance and advice from experienced immigration professionals to navigate the EB5 concurrent filing process most effectively and efficiently.

What Is Form I-526/I-526E?

One of the very first steps in the typical EB-5 application process is submitting Form I-526/I-526E to USCIS. If, like the vast majority of EB-5 program applicants do, the foreign national made their investment via a regional center, then they must submit Form I-526E.

Form I-526/I-526E is used by immigrant investors to demonstrate their eligibility for the EB-5 program, and must include key information about the individual’s chosen investment project.

An I-526 or I-526E petition should include:

• The applicant’s full name, date of birth, country of birth, and current address.
• An explanation of how the applicant’s investment in a new commercial enterprise (NCE) will meet EB-5 program requirements, specifically how it will create at least 10 full-time jobs for U.S. workers.
• A comprehensive business plan pertaining to their NCE investment.
• Information showing the lawful source of their NCE investment funds.
• Financial and bank statements, property records, tax returns, and more supporting documentation.

What Is Form I-485?

Typically, after USCIS has approved an EB-5 investor’s I-526/I-526E form, they become eligible to obtain conditional permanent resident status. To do so, EB-5 investors already living in the United States must submit Form I-485 to USCIS, while applicants living outside the United States submit Form DS-260 and then attend a visa interview at the U.S. embassy or consulate in their home country.

Once this petition is approved, an applicant’s conditional EB-5 Permanent Resident Card remains valid for two years, allowing the investor, their spouse, and their dependent family members to live in the United States.

Why EB-5 Concurrent Filing Presents Such a Considerable Advantage to Immigrant Investors

EB-5 concurrent filing benefits immigrant investors in several ways, including:

1. Streamlining the EB-5 Application Process

Perhaps the most significant benefit that EB-5 concurrent filing provides to immigrant investors is making the process significantly more efficient. Filing and gaining approval of Forms I-526/I-526E and Form I-485 can be extremely time-consuming. As of the most updated data provided by USCIS, 80% of I-526/I-526E petitions are processed within 55.5 months, and within 88 months for applicants from China.

Processing times for Form I-485 can be difficult to predict because it can vary depending on a wide range of factors, including the applicant’s form category, USCIS workload, and the specific field office or service center where the application is being processed. The most up-to-date estimates are available on the USCIS website. EB-5 investors can typically expect the wait time for processing an I-485 petition to be around a year, but it can be much longer.

Because of the unpredictability and often lengthy processing times for Forms I-526/I-526E and I-485, the prospect of combining these two processes into one with concurrent filing—and thereby significantly shortening the wait time for obtaining a conditional permanent residence—is appealing to EB-5 investors.

2. Avoiding Consular Processing

In addition to the time that EB-5 concurrent filing saves immigrant investors by allowing them to file Forms I-526/I-526E and Form I-485 simultaneously, individuals may also be able to save more time by avoiding consular processing. By filing Form I-485 at the same time while in the United States, EB-5 investors may be able to avoid the need for consular processing in their home country, which can often involve additional delays.

3. Providing Earlier Work and Travel Authorization

EB-5 concurrent filing allows immigrant investors to potentially become eligible for work authorization and travel permits while their applications are pending, thereby allowing them to work and travel during the adjudication process. Typically, applicants would need to wait for their Form I-526/I-526E to be processed, and then file Form I-485 to enjoy this privilege, but EB-5 concurrent filing provides investors with this important level of freedom and flexibility right away.

4. Potentially Providing Significant Cost Savings to EB-5 Investors

EB-5 concurrent filing can provide substantial cost savings to investors by combining the filing of Form I-526/I-526E and Form I-485. Typically, the application fee for Form I-526 is more than $3,500 (subject to a price increase to $11,160 as of April 2024) while the application fee for Form I-485 is more than $1,000.

Applicants also generally incur legal fees and other associated costs to make sure that they provide the necessary documentation at each step of the process. By combining these two critical steps into one, EB-5 concurrent filing has the potential to save immigrant investors thousands of dollars in fees.

5. Speeding Up the Transition to EB-5 Permanent Residency

Ultimately, EB-5 concurrent filing accelerates the transition to EB-5 permanent resident status in the United States, granting immigrant investors earlier access to all of the benefits enjoyed by Green Card holders.

Who Is Eligible for EB-5 Concurrent Filing?

EB-5 concurrent filing is available to individuals living in the United States on non-immigrant visas who are eligible for adjustment of status to lawful permanent resident status (e.g., individuals on H-1B or L-1 visas). It is recommended that individuals on B-1 and B-2 tourist visas, TN visas, E-2 visas, and O-1 visas wait 90 days before attempting to adjust status.

Individuals are also not eligible for EB-5 concurrent filing if their home country is subject to visa retrogression—that is, when the demand for visas from a particular country exceeds the annual quota set by the U.S. government. When visa retrogression occurs, the priority dates for certain immigrant visa categories move backward, causing delays for applicants from those countries.

What Are the Main Steps in the Process of EB-5 Concurrent Filing?

The step-by-step process of EB-5 concurrent filing includes:

1. Prepare, Complete, and Submit Form I-526/I-526E And Form I-485

As outlined above, EB-5 investors eligible for concurrent filing must gather all necessary documentation for Form I-526/I-526E, including their personal information and details pertaining to their investment, and their source of funds, in addition to bank statements, property records, tax returns, and more supporting documentation.

EB-5 program applicants must also complete Form I-485 with their personal information, immigration history, and more required details. When both forms are complete and all supporting documentation is assembled, the two forms are submitted together to USCIS.

It is highly recommended that individuals seek professional guidance to ensure that they submit all of the required information. Failure to do so can result in significant delays or a rejected application.

2. Submit Form I-131 and Form I-765 If Necessary

After submitting Form I-526/I-526E and Form I-485 to USCIS, EB-5 investors may submit Form I-131 (for advance parole document) to apply for permission to travel internationally.

Individuals on employment-based visas can continue working in the United States as long as their work visa remains valid. Otherwise, immigrant investors may submit Form I-765 (for employment authorization document) to request permission to work legally in the United States while awaiting the decision from USCIS.

3. Attend Biometrics Appointment

After USCIS receives an applicant’s concurrently filed Form I-526/I-526E and Form I-485, they will schedule a biometrics appointment, during which the applicant will provide fingerprints, photographs, and other information typically required for criminal background checks.

4. Attend Interview If Necessary

After USCIS receives an applicant’s concurrently filed Form I-526/I-526E and Form I-485, they may also schedule an interview to further assess the applicant’s eligibility for the EB-5 program. During the interview, applicants may be asked to provide additional information about their investment project, their source of funds, and more. It is highly recommended that EB-5 immigrant investors seek guidance from an immigration attorney for this step in the process.

5. Await USCIS Decision and Receive Conditional Green Card

After Form I-526/I-526E and Form I-485 are successfully processed, USCIS will make a decision on whether to grant the applicant conditional permanent resident status, which allows them (as well as their spouse and qualifying dependents) to live and work in the United States for two years.

6. Submit Form I-829

Once the EB-5 investor reaches the final 90-day period before their conditional Green Card is set to expire, they must submit Form I-829 to USCIS, providing the required evidence that they have met all conditions of the EB-5 program and requesting the removal of conditions on their permanent resident status.

EB5AN Can Help You Get Started with EB-5 Concurrent Filing

In allowing for EB-5 concurrent filing of Form I-526/I-526E and Form I-485, the EB-5 Reform and Integrity Act (RIA) of 2022 presented a unique opportunity to speed up the process of obtaining permanent resident status in the United States via the EB-5 program.

Still, legal and professional guidance is crucial for successfully navigating the process. EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

For help answering your questions about EB-5 concurrent filing, or to get started on your EB-5 journey, schedule a free consultation with our EB-5 team. To learn more about our available EB-5 projects, click here.

Once they are eligible, foreign nationals can file Form I-485 to adjust their immigration status and gain lawful permanent residency in the United States.

However, processing times can be long and unpredictable. Delays can affect investors’ immigration plans. With a focus on the EB-5 Immigrant Investor Program, this article explains what you should expect when submitting your I-485 and how to reduce your processing time.

Regardless of whether you’re an EB-5 investor or not, by reading this article, you will learn more about Form I-485.

We will cover why Form I-485 is important, how long it takes to process, and what EB5AN can do to help applicants obtain U.S. Green Cards under the EB-5 program.

Key Points to Remember About I-485 Processing

• Foreign nationals and their qualified immediate relatives should file Form I-485 once they have met eligibility requirements to receive conditional permanent resident status in the United States.
• I-485 processing times vary depending on individual circumstances, immigration officials’ workloads, and other factors, but expect the process to take several months at least.
• EB-5 investors can minimize I-485 processing delays by following instructions carefully, filling out all paperwork completely and accurately, and working with EB5AN and an experienced immigration attorney, among other steps.

What Is Form I-485?

Qualified individuals who live in the United States on temporary visas may wish to change their immigration status to lawful permanent resident. To do so, they must file Form I-485, Application to Register Permanent Residence or Adjust Status. This is also known as an application for adjustment of status.

EB-5 investors who are already physically present in the United States and partway through the EB-5 application process may submit this form to gain conditional permanent residency. Approval of this form makes them U.S. Green Card holders. They continue to live, work, and travel in the United States while fulfilling the EB-5 program’s requirements.

The investor’s entire family, including the EB-5 principal applicant, their spouse, and unmarried children under 21 years old, can obtain permanent residence. Each family member must submit their own Form I-485 to receive Green Cards and become conditional permanent residents of the United States.

It’s important to note that EB-5 applicants who are outside of the United States are not eligible to submit Form I-485. Instead, they must file Form DS-260 and complete consular processing before they can travel to the United States. Read our guide to DS-260 applications to learn more about that.

How Long Does It Take to Process Form I-485?

Unfortunately, an I-485 petitioner cannot expect their I-485 application to be processed by a set date. Processing times vary.

Between FY 2019 and FY 2023, the median processing time for decisions on employment-based I-485s dropped from 10 months to 8.6 months. This estimate may change again by the time you read this.

For the latest figures, consult the United States Citizenship and Immigration Services Historical National Median Processing Time page.

Factors That Affect Processing Times

These are some of the main things that can affect how long it takes for an I-485 petition to be adjudicated:

• Immigrant category.
• Processing center.
• USCIS workload.
• Eligibility of applicant.
• Problems with investor’s submission.

Let’s take a closer look at each of these issues.

Immigrant Category

Not all I-485 applicants file under the same category. One applicant may be an EB-5 investor, while another may have been granted refugee status. Some immigration categories may result in greater scrutiny from the United States Citizenship and Immigration Services (USCIS). This additional attention can lengthen the processing time.

Processing Center

One of the key factors affecting I-485 processing times is the applicant’s local USCIS field office or service center. Staffing levels change. Not every USCIS field office or USCIS service center takes the same amount of time to adjudicate an I-485 application.

USCIS Workload

A variety of issues—such as the volume of applications, changes in rules and regulations, priorities, and immigration policies—can affect the workloads of USCIS field offices. These can also affect when applicant interviews can be scheduled and conducted. As workloads change, so too can I-485 processing times.

Eligibility of Applicant

Not all foreign nationals are eligible to apply for adjustment of status. Those who fall under certain grounds of inadmissibility, as addressed in the Immigration and Nationality Act, are ineligible. These categories include:

• Medical.
• Criminal.
• National Security.
• Fraud.

The adjudication process can also involve background checks, which can take additional time.

Problems with Investor’s Submission

Immigration officials may have follow-up questions or require petitioners to supply additional documentation. This is more likely to happen if applicants make mistakes in filling out their form or omit important information.

Petitioners must prepare and fill out their paperwork carefully to avoid delays or rejection.

An I-485 applicant might encounter any combination of these factors, making it difficult to predict when their application will be adjudicated. Once the decision is made, USCIS will notify applicants by email or physical mail to indicate the application has been processed.

What Is the I-485 Timeline

Filing Form I-485 is just one part of the EB-5 immigration process. It is essential for EB-5 investors to understand how Form I-485 fits into it.

These are the main steps before, during, and after I-485 submission:

1. Confirm visa availability.
2. Compile essential documents.
3. File Form I-485 concurrently with Form I-526 or I-526E.
4. Save receipt notice.
5. Participate in a biometrics appointment and interview (unless waived).
6. Get Employment Authorization Document and travel permit.
7. Get Green Card(s).
8. File Form I-829.
9. Apply for U.S. citizenship.

Let’s explore each step in more detail.

1. Confirm Visa Availability

First, a foreign national must confirm that a visa is available in their immigration category. The time needed to complete this step will vary depending on your individual circumstances.

Study the State Department’s Visa Bulletin, found here. If a visa is available, file Form I-485 using the listed “date for filing.” If one is not available, use the listed “final action date.”

In addition, do the following:

• Look up your visa type in the first column of the corresponding chart (“employment-based” if you are an EB-5 investor).
• Look up the corresponding date under the country you are from.
• File the adjustment of status form if the chart says “C,” for current.

2. Compile Essential Documents

You must provide a great deal of evidence and many supporting documents to get approval from USCIS of your Form I-485. The time needed to complete this step will vary depending on your individual circumstances. Evidence required includes:

1. Proof of eligibility: If you file Form I-485 concurrently with your I-526/I-526E immigrant petition, include a copy of the I-526/I-526E. If you do not engage in concurrent filing, include a copy of Form I-797, Approval or Receipt Notice.

This is USCIS’ official acknowledgment of the immigrant petition. Either document demonstrates that the individual can apply for adjustment of status.

2. Personal records: Copies of your birth certificate, marriage certificate (if you are married), and divorce certificate (if you are divorced).

3. Photos: Two identical, passport-style color photos that were taken less than 30 days prior to your I-485 submission date.

4. Passport and immigration documents: Copies of your complete passport (or another government-issued identity document) and paperwork that shows you were inspected by an immigration officer and admitted or paroled into the United States.

5. Criminal history records: Documentation of your criminal history, if applicable.

6. Medical records: Your vaccination records and medical evaluations.

7. Biographic information: Each of your eligible family members should complete and file Form I-130, Petition for Alien Relative.

You must also include the correct filing fee. The amount is $1,440 (including biometric services), effective April 1, 2024.

USCIS will reject any application filed on or after this date if the updated fee is not enclosed.

3. File Form I-485 Concurrently with Form I-526E

To save time, it’s a good idea to file Form I-485 and Form I-526/I-526E concurrently. There is no need to wait for USCIS to receive or approve the I-526/I-526E. If filing based on an approved or pending I-526E, include a copy of your receipt notice with your Form I-485 submission.

An EB-5 investor should send Form I-485 to the appropriate filing location. This is a USCIS lockbox, which collects documents and filing fees.

Review the list of USCIS direct addresses for the latest guidance before mailing.

4. Save Receipt Notice

Within one month of filing Form I-485, USCIS should send you an acknowledgment—Form I-797C, Notice of Action—that it has received your application. This will include a 10-digit number. Save a copy of this receipt notice and use the number to track the status of your case.

An approval notification means you will receive a conditional Green Card, can stay in the United States legally, and can proceed to the next step of the EB-5 process. A rejection notification—prompted by mistakes or omissions in your form—will delay your I-485 processing time.

Tens of thousands of I-485 applications are rejected each year. Fill out your form with care so yours is not one of them.

5. Participate in a Biometrics Appointment and Interview

Within a few months of filing Form I-485, USCIS should contact you to set up your biometrics appointment. USCIS will notify you of the location, date, and time. It is best to accept the date and time offered if at all possible, to avoid a potentially time-consuming effort to reschedule.

You will have to bring a government-issued ID to enter the USCIS facility. At your appointment, expect to have your fingerprints, photo, and signature taken.

6. Apply for EAD and Travel Permit

EB-5 applicants can still work and travel while their I-485 petitions are pending, but they must first have additional applications approved to avoid being disqualified.

To work for an employer who requires a work permit, submit file Form I-765, Application for Employment Authorization. Submitting Form I-765 means you can get an Employment Authorization Document (EAD).

After your I-485 is approved, you no longer require an EAD to work in the United States. The Green Card itself provides employment authorization.

To travel, file Form I-131, Application for Travel Document to USCIS. Approval means to receive advance parole and may travel outside the United States temporarily.

Within a few months of filing Form I-485, you can expect to receive a decision on your EAD. A decision on an advance parole travel document may take several months.

7. Get Green Card(s)

The I-485 is approved after USCIS determines the applicant has met all I-485 requirements and the U.S. Department of State assigns an immigrant visa.

Permanent Resident Cards (Green Cards) should arrive in the mail a few weeks later.

With their I-485 approved, an EB-5 investor has conditional permanent resident status for up to two years.

The investor should submit an I-829 petition during the last 90 days of this time frame to remove conditions and become a lawful permanent resident of the United States.

8. File Form I-829

To get unconditional permanent residency, the investor files an I-829 petition, which proves the investment complied with the EB-5 program.

Once the investor’s I-829 petition is approved, the investor, their spouse, and any unmarried children under the age of 21 gain lawful permanent resident status. All conditions are removed at this time.

9. Decide Whether to Apply for U.S. Citizenship

After EB-5 investors have been Green Card holders for five years, they can apply for U.S. citizenship. Many choose to do so. Full citizenship confers additional pluses, such as voting rights, eligibility for U.S. passports, and the chance to receive benefits from government programs like Medicare and Social Security.

U.S. citizenship also comes with additional responsibilities, such as exclusive allegiance to the United States, following U.S. laws, and possible jury duty service.

Applying for citizenship under these circumstances is called the naturalization process. A qualified foreign national must file Form N-400, Application for Naturalization, for USCIS approval, among other things.

Applicants should expect this process to take six months or longer.

How Can Investors Speed Up I-485 Processing?

Investors must take care to fill out their I-485s completely and accurately, to avoid mistakes and questions that could lengthen their processing time.

USCIS sometimes denies applications that are not filled out correctly. In most cases, these decisions cannot be appealed.

Here are some of the things you can do to get approved the first time you apply with minimal delay.

• Fulfill all eligibility requirements for adjustment of status.
• Use the most recent version of Form I-485.
• Familiarize yourself with and follow the filing instructions.
• Answer all application questions fully and correctly.
• Type your responses or write them out using a black pen.
• Enclose all supporting documentation and the filing fee.
• Review this checklist of evidence from USCIS.
• Provide photos consistent with the requirements outlined in the form instructions.
• Consult with a qualified immigration lawyer when drafting and filing Form I-485.
• Fill out and enclose Form I-693, Report of Immigration Medical Examination and Vaccination Record.
• Submit Form I-485 and Form I-526/I-526E concurrently.
• Reply to all questions from USCIS quickly.

Request Expedited Processing from the USCIS Contact Center

EB-5 investors may request expedited processing of their I-485 applications by getting in touch with the USCIS Contact Center.

Call them at 800-375-5283 (from inside the United States) or 212-620-3418 (from outside the United States). Their webpage also offers many online tools.

USCIS is selective in considering expedite requests, and could ask for supplementary information.

Choose EB5AN for the Best Chance of Success

Submitting Form I-485 is an important part of the EB-5 visa process, but prospective investors should familiarize themselves with all aspects of the EB-5 journey.

You’ll need help from an industry leader for the best chance of securing immigrant visas for yourself and family members.

EB5AN has helped thousands of clients from all over the world become Green Card holders. With a 100% USCIS project approval rate, our expert team can help you with everything from filing petitions to finding top-notch regional center projects.

Book a free consultation with us to learn more.

A writ of mandamus is an order from a court compelling a lower government body to perform an act that it has a clear duty to perform. In the context of the EB-5 process, a writ of mandamus can be an effective tool in moving forward an EB-5 case that is experiencing extensive delays.

In this article, we will take a closer look at the EB-5 application process, its timeline and potential delays, as well as what solutions EB5 investors can turn to, including a writ of mandamus.

The EB-5 Program

The EB-5 program, also known as the Immigrant Investor Program, provides a way for eligible investors, their spouses, and unmarried children under the age of 21 to obtain U.S. permanent residency status (informally known as a Green Card).

The EB-5 program was established in 1990 by the United States Congress as a way to encourage investment in the U.S. economy. The program requires that investors meet certain criteria, make a significant capital investment in a U.S. venture and, through that venture, create at least 10 full-time, permanent jobs for U.S. workers.

The EB-5 visa program has undergone various changes throughout the years. As it stands today, an investor can either make a direct investment in a business that they will own and operate, or they can invest in a government-approved EB-5 regional center.

Regional centers are business organizations designated by USCIS to sponsor various EB-5 investment projects. Regional centers gather funds from multiple investors and manage both the projects and the job creation process.

If an investment is made in a high unemployment or rural area, also known as a targeted employment area (TEA), the minimum EB-5 investment amount is $800,000. If the investment is made in any other region of the U.S., the minimum investment amount is $1,050,000.

The EB-5 program has numerous benefits, including the fact that no employment offer or other type of sponsorship is needed, and that the investor and their family have the freedom to live anywhere in the United States that they choose.

How to Apply for EB-5 Status

Invest in a Reliable EB-5 Project

The first step in the EB5 process is for the investor to find a suitable investment project that is compliant with all EB-5 requirements. Once the project is selected, the applicant must invest the required amount of capital in the project. When the investment is made, an I-526 or I-526E application is filed with the United States Citizenship and Immigration Services (USCIS). The I-526E application includes documentation of the investment, a business plan, a job creation plan and proof of lawful source of funds.

As of March 2024, the USCIS-published processing time for I-526 petitions is 55.5 months. While these published processing times are useful for planning purposes, actual processing times often vary.

Receive Conditional Green Card

Following the approval of an I-526E petition, the investor and their qualifying family members receive conditional permanent resident status for a period of two years. Toward the conclusion of the two-year period, the investor files an I-829 petition.

Remove Conditions and Become a Permanent Resident

The purpose of the I-829 is to provide USCIS with evidence that the investor’s project has met all program requirements during the initial two-year period. Processing times for I-829 petitions can vary on a case-to-case basis, but petitioners’ conditional permanent residency is extended during the processing period.

Finally, as a last step in the process, many EB-5 investors choose to apply for United States citizenship.

EB-5 Application Delays and How to Address Them

While the EB-5 program provides one of the most direct pathways to U.S. permanent residency, extensive processing times, at either the I-526 or I-829 stages, often pose significant challenges for investors. Fortunately, there are steps which, while limited, an investor can take to address potential case processing delays.

Prepare Your Application Carefully

Given the length of the EB5 application process, foreign nationals are encouraged to move steadily forward with the preparation of their petition and to avoid delays in filing their applications.

To avoid requests for evidence, applicants should also ensure that all submitted documents are accurate and complete.

To ensure the best results, investors should remain informed of changes to EB-5 regulations and processing times. Detailed records should also be kept of the application process and of all steps taken to communicate with USCIS. If delays occur, this approach will make it simpler to address and resolve issues.

Know Your Rights

USCIS provides an e-Request tool that allows applicants to inquire about applications and petitions that are outside normal processing times.

Applicants can also engage the Office of the Citizenship and Immigration Services Ombudsman, who serves as a bridge between USCIS and individuals applying for immigration benefits. Although the Ombudsman does not have the authority to change USCIS decisions or enforce policies, it can provide assistance in complex cases and facilitate communication.

It can sometimes be effective to solicit the assistance of a congressperson or senator to inquire about the status of a delayed petition. Congressional offices often have communication channels available to them that are not directly available to applicants.

Engage with the EB-5 Community

Joining EB-5 investor forums and platforms can provide support and up-to-date information. These groups may also organize to address broader issues within the EB-5 program.

On the other hand, hiring an immigration attorney or experienced industry professionals who specialize in EB5 petitions is highly recommended. Their expertise can be invaluable in navigating the intricacies of the EB-5 process and in resolving issues.

Writ of Mandamus as a Last Resort

As a recourse of last resort, investors experiencing unreasonable delays in the processing of their EB-5 petitions may consider filing a writ of mandamus in U.S. federal court. As noted above, a writ of mandamus is an order from a superior court compelling a government agency to act. In the EB-5 immigration law context, a writ of mandamus will compel USCIS to take action on a delayed EB-5 petition.

When taking mandamus action, a petitioner must establish that the delay is unreasonable. They must also establish that the delay is causing them undue hardship, that they have exhausted all other possible remedies, and that no other adequate remedy is available.

It is important to note that while a writ of mandamus lawsuit can force USCIS to take action, it cannot order the agency to rule in any particular way on any given application. In other words, filing a writ of mandamus does not ask a federal court to make a decision on an EB-5 application; rather, it only pushes USCIS to take action. The action taken by USCIS will then be an approval, a denial, or a request for additional evidence.

Although recent landmark court decisions have ruled in favor of petitioners and against government agencies (USCIS) in EB-5 mandamus lawsuit situations, extensive delays still persist. Moreover, taking mandamus action is not recommended under all circumstances.

Risks of Taking Mandamus Action

USCIS processing delays can actually benefit the children of applicants if the children are nearing the age of 21. This is because there are mechanisms in place under U.S. immigration law where an applicant’s eligibility age may be extended if USCIS was responsible for delayed processing times.

Additionally, filing a writ of mandamus is usually not recommended if there are issues regarding the investor’s EB-5 project, such as a lack of progress by the job-creating entity, or problems in the investor’s immigration case like history of visa violations or source of funds issues. It would also not be advisable for investors from countries with visa backlogs, such as China or India, to pay the high costs associated with filing a writ of mandamus if a visa would not be available to them at the time that their expedited case was decided by USCIS.

If there are problems involved with the petition, there is always the possibility that filing a writ of mandamus will only serve to expedite what is going to be a negative decision.

Seek Professional Assistance

Although filing a writ of mandamus can be a highly effective tool in propelling a stalled immigration case forward, it is often considered the remedy of last resort because of the high costs involved, and because a successful outcome is not guaranteed. When considering a mandamus lawsuit, it is highly recommended to work with an experienced EB-5 immigration attorney. An attorney specializing in this area will be able to successfully determine whether it is in an applicant’s best interest to pursue a writ of mandamus.

For additional information on filing an EB-5 petition and navigating potential EB-5 processing delays, please book a free call with EB5AN.

The EB-5 Immigrant Investor Program is one of the most direct pathways to obtaining a green card in the United States. Through this initiative, the American government aims to stimulate economic growth by encouraging foreign investments. Foreign investors, on the other hand, benefit by obtaining Green Cards for themselves and their immediate family members (spouse and unmarried children under 21 years of age.)

After deciding to take the EB-5 route to obtain permanent residence in the U.S., the next crucial step is to select a feasible investment project, considering your financial capital and other resources.

This post will take you through the different investment options available to potential investors and how to select the best EB-5 projects to invest in.

Direct Investments vs. Regional Center Investments

EB-5 investors have two major investment options, each with unique requirements. This section will explain the nuances between the two options, highlighting their pros and cons and the category of investors they are best suited for.

Direct Investments

For this type of investment, investors are legally required to directly invest capital of at least $1,050,000 in a business, formally known as a New Commercial Enterprise (NCE). However, when the project is located in one of a targeted employment area (TEA), the investment threshold is decreased to $800,000. Additionally, the investment should directly result in the creation of 10 full-time jobs, each lasting for at least two years.

The most attractive characteristic of these EB-5 projects is control: the investor operates independently and is directly involved with the project’s development. In most cases, they also stand to gain high returns on investments because of the high risk/high reward principle in investment.

It is important to note that the law does not allow multiple individuals to pool funds to raise capital for this type of project. Therefore, only one person is expected to provide the stipulated minimum investment threshold. Also, direct investments are high-risk, as their success solely depends on the investor’s ability to manage their enterprise.

In other words, the direct investment model is best suited for investors who desire complete control of their investments but have a solid plan to recruit at least 10 people for two years and $800,000 to put away for investment purposes.

Regional Center Investments

These EB-5 projects are sponsored by regional centers, which are essentially economic entities assigned by the United States Citizenship and Immigration Services (USCIS) to facilitate EB-5 project investments. Unlike the direct investment plan, investments through regional centers allow multiple investors to pool resources to fund a single project. Real estate development projects are the most common project type in this category.

While the minimum investment thresholds are the same, regional center-sponsored investment projects are generally safer for immigration purposes.

Furthermore, the regional center handles most of the complicated paperwork, and the job creation requirements for regional center EB-5 projects are less stringent. That is, the 10 full-time jobs could be direct, indirect, or induced, if said jobs have a positive economic impact on the community.

On the downside, investors have little to no control over their investments, making this option best suited for investors who prefer to maintain a passive presence in the day-to-day management of the project.

How to Select the Best EB-5 Project

There is no one-size-fits-all approach to selecting EB-5 projects. Instead, investors need to do a holistic assessment of their circumstances, identify their available resources, and clearly define the immigration plans and investment goals they aim to achieve.

Below, we have provided four distinct factors potential investors must consider to ensure they are well-informed when deciding on an EB-5 project.

Risk Assessment

As with any other investment, the EB-5 program comes with varying levels of risks, depending on the investment project being considered, making risk assessment a core aspect of the EB-5 project selection process. The main objective here is to be aware of the type and level of risk you are taking on and to be sure you are comfortable taking such risk.

To do this, investors must first consider the economic climate of their project location. Data on the demand rate for your enterprise’s offerings can be used to assess risk levels and provide valuable insight into the project’s prospects.

Along with market data, potential investors need to apply due diligence when choosing a project developer. EB-5 investors should look out for experienced developers who have a track record of executing successful EB-5 projects while mitigating losses. It is also important that the developers are financially stable enough to support the project if needed and transparent about every step of the process.

Foreign nationals who choose to invest through regional center sponsors must ensure that the regional center is reputable with a successful track record.

Financial Viability

In analyzing the financial viability of EB-5 projects, it is crucial to identify which should be prioritized: return on investments or securing permanent residency in the U.S., the latter typically being the most important factor. That being said, most investors aim to balance the two objectives rather than forfeit one benefit for the other.

EB5 investors must operate with a sound business plan that aligns with their investment goals and immigration plans. Such an investment structure should include details such as total capital raised and total estimated project cost, potential revenue streams and expenditures, feasible strategies for ensuring good returns on investment, and a well-outlined exit strategy.

An analysis of the above information, alongside reliable data on risk assessment, allows potential investors to decide whether a project is best suited for them.

Legal Compliance

After satisfying the job creation requirements and minimum investment threshold provisions, investors are still expected to adhere to other general compliance laws.

USCIS requires investors to tender legal proof that their investment funds were obtained legitimately. Documentation, such as financial and tax statements or business ownership records, is needed. Furthermore, investors must only invest in New Commercial Enterprises (NCEs) where there is a risk of loss.

Investors must adhere to immigration compliance laws on the visa application process, ensuring complete documents are submitted on time. Lastly, investors must verify that their investments align with the U.S. securities laws since EB-5 investments can be classified as securities.

Professional Guidance

Given the complexities of investing in an EB-5 project, this might be the most essential step in selecting a project to invest in. Consulting an immigration lawyer specializing in EB-5 project investments provides investors with expert guidance, helping them avoid costly mistakes that may jeopardize their immigration process.

It is also advisable to contract a financial advisor who can provide professional oversight on the project’s capital structure and design viable ROI and exit strategies for the business. A competent financial advisor can also evaluate the job creation estimates and the overall sustainability of your proposed project business plan.

Finally, due diligence requires that investors confirm any data or information provided by regional centers and project developers, especially regarding their level of expertise and industry success. In most cases, investors consult third-party specialists who ensure their interests are guarded from a professional standpoint.

Select the Best EB-5 Project with EB5AN

Choosing an EB-5 investment project is very relative to the investor’s unique situation. Therefore, potential investors will benefit from a multifaceted assessment of a proposed project’s risk and financial viability, adherence to necessary regulations, and professional assistance.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

Start your EB-5 journey today by scheduling a free consultation with our team to get expert guidance on your investment options.

An EB-5 project refers to a new commercial enterprise (NCE) that is funded through the EB-5 Immigrant Investor Program. Established in 1990, this program enables foreign investors to obtain a Green Card by investing a minimum amount of capital in a qualifying new commercial enterprise in the U.S.

To qualify for the EB-5 program, investors must invest $800,000 or $1,050,000, depending on the project’s location. The lower investment amount applies to projects located in targeted employment areas (TEAs), which are high-unemployment or rural areas. In addition to the minimum investment requirement, the project must create or preserve at least 10 full-time jobs for eligible U.S. workers.

EB-5 projects can take various forms, such as real estate developments, infrastructure projects, and manufacturing ventures. The majority of EB-5 projects are sponsored by USCIS-designated regional centers.

But what happens when an EB-5 project fails? In this article, we’ll explore the immigration and financial risks investors encounter if a project fails, based on their position in the EB-5 application process.

Failure of an EB-5 Project

While there are numerous reasons why an EB-5 project may fail, it can have severe repercussions for investors. Naturally, an EB-5 applicant’s primary concern is how project failure might affect their EB-5 application. EB-5 investors would also want to know whether they will be able to reimburse the original investment amount.

The primary factor influencing what happens after an EB-5 project fails is whether the applicant invested directly or via a regional center. When an investor uses the funds to form or purchase a business directly, the answer varies depending on the business structure and the investor’s plans for dealing with a potential failure, among other factors. Investors who chose regional centers, on the other hand, rely heavily on the investment agreement.

This article will focus on failed EB-5 projects involving regional centers, as that is the most popular investment option among foreign investors.

Return of Investment with a Failed EB-5 Project

Even though favorable provisions may help investors get another shot at the EB-5 program, there is no guarantee that their initial investment will be returned.

The circumstances surrounding the failure of an EB-5 project, as well as the terms of the investment agreement, determine the potential outcomes for investors. Investors are typically faced with the possibility of losing all or a portion of their investment or redeploying it. Here are a few possible scenarios:

• Loss of Investment: If the EB-5 project fails and is unable to repay its debts or return investment capital, investors risk losing their entire investment. This may occur if the project encounters financial difficulties, such as cost overruns, lack of demand for the project’s products/services, or mismanagement.
• Partial Recovery: In some cases, investors may be able to recoup some of their investment. However, the amount recovered is often much less than the original investment, and investors may still suffer losses. Some EB-5 investors may be able to recover their losses following the denial of Form I-526E, as most regional centers keep the funds invested in escrow while Form I-526E is pending approval.
• Redeployment: According to the EB-5 Reform and Integrity Act of 2022, regional centers can redeploy EB-5 investment funds “anywhere within the United States.” However, the capital must “remain at risk” after EB-5 redeployment, and investors’ capital “is expected to remain invested for not less than two years.” Investing redeployed funds in purely financial activities, such as purchasing financial instruments on the secondary market, does not constitute redeployment under this Act.
• Legal Recourse: If the EB-5 project fails due to fraud, misrepresentation, or other illegal activity, investors may be able to recover their investment by seeking restitution from the parties responsible.

Impact of a Failed EB-5 Project on Visa Status

The timing of an EB-5 project’s failure may determine how it affects investors’ visa status. Let’s look at some scenarios below.

Failure Before I-526E Approval

If a project fails before the I-526E petition is approved, the investors will most likely be unable to meet the EB-5 program’s requirements, particularly the need to maintain the investment during the conditional residence period and create 10 or more jobs.

However, if an EB-5 project is only partially completed before failing, a new developer or receiver can take over and complete the project.

Furthermore, assuming there are no significant changes to the project, the investors could be able to complete their immigration process. If the EB-5 project fails completely, the only viable option is to redeploy the reimbursed amount (if any) and resubmit the EB-5 application with an investment in another project.

Failure After I-526E, but Before I-829

It is important to note that if a project fails after Form I-526E approval but before Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) approval, the conditions may still be successfully removed, depending on the timing and ability to demonstrate sufficient job creation.

According to USCIS Policy Manual, if the jobs were created and maintained for the required period, even if they no longer exist at the time of the I-829 filing, the investors should be okay concerning their EB-5 application. It should be noted that the I-829 petition must be filed 90 days before the expiry of the conditional residence period.

Failure After I-829 Approval

EB-5 investors who successfully removed conditions on their Green Cards will not be impacted by the success or failure of the project’s compliance with USCIS requirements.

Work with EB5AN to Minimize Risks

The failure of an EB-5 project can have unfavorable consequences for everyone involved. Investors risk losing their investments and being unable to obtain residency permits. So, before investing in an EB-5 project, investors must conduct thorough due diligence and seek professional advice to reduce their risk exposure.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

If you are considering investing, book a one-on-one call with our team today to learn more about the risk factors associated with EB-5 investments and receive support throughout your entire EB-5 process.

Your choice of EB-5 service providers affects the prospect of getting an EB-5 visa—and ultimately a U.S. Green Card.

The U.S. government’s approval rate for EB-5 visa applications varies depending on several factors, with an average of about 75% to over 80%. In the third quarter of FY2023, the average approval rate of an I-526 petition was 71.7%. Despite a high success rate, the chances of rejection remain possible if you aren’t fully prepared.

For example, you won’t obtain an EB-5 visa if you can’t prove the legitimacy of your funds and/or income. Remember that the United States Citizenship and Immigration Services (USCIS) requires thorough documentation of a person’s financial capacity.

Another reason for a rejected EB-5 visa is being unable to convince the USCIS that your investment will create jobs. Your EB-5 visa application must show that your investment in a new commercial enterprise can “create or preserve 10 permanent full-time jobs.”

In addition, EB-5 immigrant investors should have clean criminal and civil records. If you have legal cases such as a pending court trial in the U.S., you may find it hard to acquire an EB-5 visa.

By knowing which service providers can help you during your application process, you can increase your chances of EB-5 visa approval.

In this article, we will take a look at some key EB-5 professionals and how they can help investors through their immigration process.

Who Are the Key Service Providers for Your EB-5 Visa Process?

The essential EB-5 service providers are immigration attorneys, EB-5 regional centers, and a reliable CPA or financial advisor.

Legal counsel could be the most important one of all. One example involves Lorrie Rojas’ successful EB-5 visa application through a hotel project investment.

Rojas, a Filipino national, describes the selection of an immigration attorney as one of the “most daunting tasks” for her EB-5 visa journey. Her eventual choice spelled the difference for a smooth application process, and thanks to her attorney’s diligence, Rojas’ Form I-526 was approved without any delays.

Aside from legal counsel, foreign nationals must also make a choice between direct or regional center projects at the investment stage. Direct EB-5 investors will need to consult with additional service providers like an EB-5 economist and business plan writer. Investors who choose a reliable regional center, however, do not need to hire such professionals separately.

When looking for a qualified EB-5 regional center, investors should pay attention to how easy it is to communicate with them, aside from their track record of success.

For example, a Sri Lankan national invested in EB5AN’s Twin Lakes Georgia EB-5 project. According to him, the project’s EB-5 team became a primary factor for the successful investment, as they worked directly with the applicant.

Choose an Experienced and Qualified EB-5 Immigration Attorney

You wouldn’t hire a tax attorney to handle your personal injury claim. The same concept applies to the EB-5 visa process.

While the USCIS doesn’t require legal representation, there are plenty of reasons to hire the right EB5 visa attorney. Lowering the risks of USCIS issuing a request for evidence (RFE) is one of them.

An RFE issuance happens at the discretion of the USCIS. EB-5 visa applicants receive RFEs when they fail to provide enough details for an EB-5 investment. In other words, filing a well-prepared, complete initial application with the help of an attorney can accelerate your EB-5 visa process.

However, the USCIS may reject an application even without prior RFE issuance, which is a bigger reason to have legal representation and avoid this outcome.

Immigration attorney Ahmed Khan, an EB5AN partner, recommends immigration lawyers with at least five years of experience in working with EB-5 visa applicants.

You should also choose an attorney with updated knowledge of immigration law and specific EB-5 regulations. An example is their familiarity with the Reform and Integrity Act of 2022 (RIA), updated USCIS language and guidelines, and recent industry data suggesting upcoming changes in the way set-aside categories may benefit EB-5 investors.

Pick the Right USCIS-Designated EB-5 Regional Center

To make an indirect EB-5 investment in the U.S.—which entails less day-to-day involvement with the management of the EB-5 business and easier job creation requirements to fulfill—a government-authorized regional center with a successful track record is your best choice.

The USCIS defines an EB-5 regional center as a public or private economic entity in the U.S. These regional centers promote economic growth in the country by participating in the EB-5 Immigrant Investor Program to pool and manage investment capital.

Prospective investors can find a full list of approved EB-5 regional centers by state on the USCIS website to verify an EB-5 regional center’s designation status. Take note that it’s normal for an EB-5 regional center to operate in more than one location.

A regional center that has vast experience with international investors is a valuable EB-5 service provider. By choosing a regional center with a strong EB-5 team, investors can do their due diligence from overseas, and eliminate the need to provide additional documents to USCIS, such as a detailed business plan and economic analysis of the EB-5 project they’re investing in.

Find a Reputable Financial Advisor

Whether you choose a direct EB-5 investment or via a regional center, you should find a trustworthy financial advisor to help with several steps of your application process.

A third-party investment advisor, CPA, or financial advisor can help prospective EB-5 investors select the right project and perform due diligence on project offerings and financial projections. They can assist in tracking and preparing financial documents to meet source of funds requirements.

While other key service providers such as EB-5 business plan writers and fund managers are typically involved in a regional center project’s structure, investors can independently seek assistance with accounting, financial planning, and tax planning for added support.

How to Start the Process

Keep in mind that a legitimate EB-5 service provider won’t promise that you can acquire U.S. permanent residency with an EB-5 visa application alone—it is a complex process with several requirements applicants must fulfill.

However, choosing the right team to support you throughout your application can significantly increase your chances of success.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

Schedule a free consultation today to meet our team and find out more about how to navigate the requirements of the EB-5 regional center program.

After years of consistent growth and stability, the tech industry faced a significant downturn in 2022, putting the livelihoods of countless tech professionals at risk in a situation the Economist termed “the sack of Silicon Valley.”

The second half of 2022 saw a wave of job cuts across the tech industry, culminating in the loss of 120,000 positions, 24,000 of which occurred in November alone.

The rapid nature of these layoffs left many tech workers in a state of shock and concern. However, those on H-1B specialty occupation visas faced an even greater challenge, as their job loss would also threaten their immigration status and their continued residence and employment in the United States. The tech industry, a significant sponsor of work visas, has seen its share of foreign workers grow to 25% by 2007.

As of 2024, H-1B is still a popular nonimmigrant visa category, which comes with a set of challenges. For H-1B visa holders hoping to stay in the U.S. long term, seeking a Green Card through the EB-5 visa program may present the most direct path forward.

In this article, we will delve into the experiences of H-1B visa holders and explore potential solutions to their U.S. immigration challenges.

Visa Constraints for H-1B Tech Workers

At the peak of the 2022 tech layoffs, a Twitter (now X) staff member, who remained after the job cuts, shared with the New Yorker, “The anticipation [to find out whether they would be laid off] wasn’t so stressful for me. I think it was for a lot of people, especially people who are on a work visa …. I probably would have started looking for other jobs two or three months ago. Finding another job is a lot of effort.”

In a message to his company about significant layoffs, Meta’s CEO, Mark Zuckerberg, echoed this sentiment, stating that the situation “is especially difficult if you’re here on a visa.”

These comments highlight the precarious situation H-1B visa holders found themselves in, at risk of job loss and potential removal from the United States.

The requirements of the H-1B visa mandate that holders must be employed to maintain their legal status in the U.S. If an H-1B employee is dismissed, their employer is obligated to inform the United States Citizenship and Immigration Services (USCIS) without delay.

From the moment of their termination, H-1B workers only have 60 days to secure a new qualifying employment opportunity before their visa status is revoked, which means they must leave the U.S. Normally, this limited window would already pose a significant challenge for tech workers in finding new employment to safeguard their H-1B visa status. However, with the tech sector’s instability and the scarcity of available positions, securing another role in the industry on such limited timelines appears almost impossible.

Undoubtedly, being forced to leave the United States following an unexpected job termination—potentially after years of residence—can severely disrupt the professional and personal lives of H-1B visa holders.

An H-1B visa nonimmigrant worker, who lost their job in 2008, shared, “I don’t think there’s any immigrant that comes to America and gets a highly competitive job expecting to be let go from it and have to leave the county, their apartment, their lives, their girlfriends and boyfriends and friends and kids and all of the things, at the flip of a switch.”

Luckily, H-1B workers can avoid this situation by transitioning to the EB-5 Immigrant Investor Program to secure permanent resident status.

Transitioning from H-1B to EB-5

Many H-1B visa holders have found a successful pathway to permanent residence through the EB-5 program. A key advantage of the EB-5 visa is securing a Green Card that is independent of employment status.

The EB-5 program allows foreign nationals to obtain permanent resident status by investing in a qualifying new commercial enterprise, often in real estate development, and creating 10 jobs with their foreign investment. The program requires a minimum investment of $800,000 in projects situated in designated targeted employment areas.

An accredited investor can choose to make a direct investment in a new or existing business, or invest in a regional center sponsored EB-5 project. There are different requirements for these two types of EB-5 investments, especially in terms of job creation and the investor’s involvement with the day-to-day management of the business.

For H-1B workers facing or at risk of job loss, the EB-5 visa offers a fast solution for adjustment of status. Upon investing, applicants of the EB-5 visa can concurrently file Form I-526E, initiating the Green Card petition, and Form I-485, the adjustment of status application for those on non-immigrant visas.

By taking this step, H-1B visa holders transitioning through an EB-5 investment can achieve a “pending” immigration status, permitting them to reside and work in the U.S. while their I-526E petition is under review. This effectively grants them the privileges of permanent residency ahead of formally receiving their Green Card.

An EB-5 visa also grants Green Cards to the principal applicant’s immediate family members (spouse and unmarried children under the age of 21).

Taking the First Step

H-1B visa holders who want to maintain their professional and personal pursuits in the United States can leverage the EB-5 visa pathway. To start the transition, it is best to consult with an immigration attorney experienced in both H-1B and EB-5 visa matters.

To minimize both financial and immigration risks, prospective investors should also work with industry experts to guide them through key steps of the application process like project selection and proof of source of funds.

Considering the limited 60-day window for H-1B workers who face layoffs, EB5AN offers the chance to start with a partial investment. Participants can start by investing a portion of the $800,000 minimum, proceed to file the I-526E and I-485 petitions, and fulfill the total investment requirement later on.

This approach enables H-1B investors to swiftly adjust their immigration status and continue their life and work in the United States.

For further details on transitioning from an H-1B to an EB-5 visa, required documents, and the visa application process, book a free one-on-one call with our team today.

Every foreign individual looking to permanently relocate to and live in the United States is required to submit an application for an immigrant visa to the United States Citizenship and Immigration Services (USCIS). This application is digitally filed using Form DS-260, Immigrant Visa Electronic Application.

This article provides detailed insights into the DS-260, highlighting its importance for the EB-5 Immigrant Investor Program.

The EB-5 Immigrant Investor Program

The EB-5 program was initiated by Congress in 1990 with the aim of boosting the U.S. economy through foreign investments into American businesses, known as new commercial enterprises (NCEs), while also generating employment opportunities for American workers. In return, foreign investors, along with their immediate family members (spouses and unmarried children under the age of 21) gain eligibility for conditional Green Cards. These Green Cards permit them to live and work in the United States. This particular status is effective for two years and can transition into permanent Green Cards, if the investor fulfills all the requirements of the program.

Eligibility Criteria for EB-5 Investors

For foreign nationals aiming to gain permanent residency in the United States, the EB-5 program offers the most direct path. To qualify, an investor must invest a specified minimum amount into a new commercial enterprise (NCE) that generates employment for American workers. This minimum investment is $800,000 for projects located in a targeted employment area (TEA) or $1,050,000 for those outside of a TEA.

A TEA is defined either as a rural area with fewer than 20,000 residents or an urban area where unemployment rates are at least 150% above the national average.

The investment must lead to the creation of at least ten full-time positions for U.S. employees.

Investment Options within the EB-5 Program

EB5 investors have the option to select from two different investment models: investing directly in a new commercial enterprise (NCE) or pooling their resources with other EB5 investors in a project sponsored by a regional center. Regional centers are economic units designated by USCIS, tasked with overseeing EB5 investments in various projects within the industry and ensuring compliance with USCIS standards.

The direct investment model appeals to investors desiring an active role in the NCE’s daily operations and key decision-making processes. This model is mostly suited for businesses in the retail, wholesale trade, services, manufacturing, technology, and agriculture sectors.

On the other hand, EB-5 regional center projects typically involve real estate developments. This model has been the favored choice among EB5 investors.

To initiate the process toward permanent residency, a foreign investor must first select an eligible EB5 project and invest the necessary capital. Then, they can proceed to submit Form I-526E, Immigrant Petition by Regional Center Investor (or Form I-526 for those opting for the direct investment approach), to USCIS.

Criteria for Submitting Forms I-526 and I-526E

When submitting Form I-526E or I-526, investors are required to prove the following points:

• They have committed the necessary minimum investment in an EB-5 project that adheres to USCIS guidelines, either through direct investment or via a designated regional center.
• If their investment is the minimum $800,000, it is in a project situated within a Targeted Employment Area (TEA).
• The investment will lead to the creation of the requisite number of jobs.
• The funds for the investment have been acquired through legal means. Acceptable sources of funds include earnings, dividends, gifts from relatives or acquaintances, inheritances, revenue from selling property, and the sale of shares.

Upon approval of the I-526E petition, USCIS forwards it to the National Visa Center (NVC), which then assigns a case number and requests payment of fees from the EB-5 investor. After that, the NVC asks the investor and each dependent to complete the DS-260 application form and provide the necessary documents. More information about DS-260 filing is available below.

After approval, the investor and their family members are granted conditional permanent residency, allowing them to enter the United States.

Transitioning to a Permanent EB-5 Green Card

The conditional Green Card remains valid for two years. To remove the conditions on their Green Cards and secure unconditional permanent resident status, the EB5 investor along with their family members are required to submit Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, within the 90-day period before the card’s expiration. This marks the end of the EB-5 immigration process.

When submitting Form I-829, the immigrant investor needs to prove the fulfillment of all EB-5 program requirements, which include:

• Verifying the existence of the new commercial enterprise (NCE) throughout the investor’s two-year conditional residency.
• Demonstrating that the required minimum investment amount was made.
• Confirming the creation of ten full-time jobs.

The petitioner’s conditional residency status is extended during the processing of the I-829 form. Following approval, the investor and their family members are granted unconditional permanent residency in the United States.

Understanding the Role of DS-260

The DS-260 form serves as the immigrant visa application for foreign nationals planning to permanently relocate to the United States, including EB-5 investors residing overseas. (The DS-230 form was previously utilized for this purpose.) Approval of this application grants the applicant an EB5 visa, enabling them to live in the United States. Immigrants already in the U.S. are required to submit Form I-485, which seeks to adjust their current status to permanent residency.

DS-260 Form Requirements

The DS-260 form requires each applicant to provide the following details:

• • Their National Visa Center (NVC) case number.
  • Their invoice identification number.
  • Personal information.
  • Adequate travel documentation to confirm identity and nationality.
  • Current residence.
  • Social media profiles.
  • Information on family, including details about parents, spouse(s), and children.
  • History of travel to the U.S.
  • Employment, education, and training background.
  • Security and background details, including:
    • Medical and health information.
    • Criminal record.
    • Violations of immigration law.

All applications must be completed in English.

Processing and Consular Interview

Processing times can vary based on the complexity of the application. For instance, applicants who have traveled extensively to countries considered to be security risks, or those currently living in countries deemed high-risk, might undergo more thorough examination.

After processing the application, an immigration officer will send an interview appointment package to the applicant, scheduling a visa interview at a U.S. embassy or consulate. During the interview, a consular officer will assess the applicant’s eligibility for an immigrant visa. Digital fingerprint scans will also be taken at this time.

Timeline for the EB-5 Visa Application Process

This timeline outlines the necessary steps for an EB5 investor:

• • • Choose an EB-5 project that meets eligibility criteria.
    • Invest a minimum of $800,000 in the project if it’s situated in a Targeted Employment Area (TEA) or $1,050,000 if located outside of a TEA.
    • For direct investments, file Form I-526 with USCIS, or for regional center investments, submit Form I-526E.
    • Upon approval, the investor and each family member (residing outside the U.S.) must fill out and submit Form DS-260.
    • If residing abroad, an immigration officer will schedule an interview for the applicant(s) at a designated time and date.
    • Following the interview and DS-260 approval, the investor is granted an EB5 immigrant visa (conditional Green Card), authorizing residency and employment in the U.S. This visa is valid for two years.
    • Before the EB5 visa expires, the investor must submit Form I-829 to remove the conditions on their Green Card.
    • With the conditions lifted, the investor obtains permanent residency in the U.S. and becomes a permanent Green Card holder.

Start Your EB-5 Journey with EB5AN

The EB5 program is a popular way for foreigners and their families to get permanent residency in the U.S., and filing DS-260 is an important part of it. Just like with any stage in a foreign investor’s immigration journey, it’s recommended that investors seek professional assistance during the immigrant visa application process.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

For further details about the DS-260, book a one-on-one call with our EB-5 team today and receive professional support through each step of your EB-5 process.

Having a Green Card offers numerous immediate advantages to EB-5 investors, yet it’s their children and family members who stand to gain even more in the long run, including the chance to study, work, and reside in the United States indefinitely. Through the avenues opened by EB5 investments, the children and families of investors have the opportunity to build prosperous lives in the U.S., benefiting from the rights and privileges that come with permanent residency.

In this article, we will explore numerous advantages the EB-5 program offers to investors with families, particularly those with children.

Understanding the EB-5 Visa Program

The EB5 visa program serves as a pathway for investors to gain Green Cards by investing in the U.S. economy. Through the EB-5 visa, investors secure the ability to live in the United States without requiring an employment or visa sponsor. It also eliminates the need for an H-1B visa to be employed by U.S. companies.

Application Process

An EB-5 application starts with a qualifying investment. Following this investment, EB-5 investors must submit Form I-526E, accompanied by evidence proving their investment aligns with program stipulations (details provided below). Then, investors present within the United States need to submit Form I-485 to adjust their status. Those outside the United States should apply using form DS-260. A policy revision in March 2022 now permits investors within the United States to concurrently file Form I-526E and Form I-485, eliminating the necessity to await approval of Form I-526E before proceeding with the I-485 application.

Eligibility Criteria

• Capital utilized for EB-5 investments needs to be obtained through lawful means and remain at risk for the duration of the investment.
• Investments through the EB-5 program should either establish a new commercial enterprise or aid in the recovery of a struggling business.
• It’s mandatory for EB-5 investments to generate a minimum of 10 employment opportunities for eligible American workers. These positions should be maintained for at least two years, although they do not have to be occupied by the same individuals throughout this timeframe.
• For EB5 projects situated in designated Targeted Employment Areas (TEAs), the investment threshold is set at a minimum of $800,000. For projects outside of these areas, the minimum investment rises to $1,050,000.

The EB-5 program ranks as one of the most straightforward routes to U.S. residency and, ultimately, citizenship for individuals with sufficient funds. Through EB-5 investments, investors gain the opportunity to obtain Green Cards for themselves and their eligible family members, namely their spouses and unmarried children under the age of 21. Acquiring U.S. Green Cards for the entire family offers numerous advantages, many of which will be thoroughly detailed below.

Advantages of a Green Card

Holding a U.S. Green Card offers numerous advantages to foreign nationals, particularly for EB-5 investors with children.

General Benefits of Green Cards

Green Card holders enjoy the freedom to travel without restrictions. Unlike individuals on more limited visas, those with Green Cards can depart and re-enter the U.S. without the risk of being denied entry, provided they return within a year of leaving. Additionally, Green Card holders are eligible to work for any employer in the U.S., including many state and local government positions and jobs requiring security clearance.

Under the law, Green Card holders are afforded protections similar to those of U.S. citizens, alongside most rights citizens have. Green Card holders are also able to engage in the U.S. political landscape by contributing to and volunteering for political campaigns.

Advantages for Children

A key advantage of an EB5 Green Card is access to the U.S. educational system, allowing EB-5 investors to enroll their children in public schools from kindergarten through high school at no additional cost. Children of EB-5 investors can undergo their full primary and secondary education in the U.S.

Beyond the direct benefits of an American education, children holding Green Cards also gain the advantage of learning English in a native setting. Proficiency in English, a language prevalently used in global business, equips children with a valuable skill set, enhancing their future career opportunities and enabling them to achieve fluency on par with native speakers if they start learning early.

U.S.-educated children are well-positioned for higher education within the country. With the support of experienced teachers and administrators in navigating the college admissions process, students can easily access guidance and prepare for required tests like the SAT and ACT, facilitating their college applications.

Having been accustomed to the U.S. educational environment, these children face a shorter adjustment period when entering American colleges compared to international students. Furthermore, Green Card holders educated in the U.S. are more likely to meet the English proficiency requirements of most colleges without difficulty.

The EB5 program extends benefits to adult children as well; parents can fund an EB-5 investment on their behalf, offering a pathway to a Green Card. This option is particularly appealing for parents not seeking U.S. residency themselves and for those with children who are married or above the age of 21.

Educational Advantages for Students

Students holding EB-5 visas are classified as U.S. residents, positioning them alongside U.S. citizen applicants in the college admissions process rather than with international student applicants. This status is advantageous, as many colleges limit the number of international students they admit to ensure availability for U.S. students. Permanent residents bypass these limits, enhancing their chances of acceptance into U.S. colleges compared to their international counterparts.

Tuition fees in the U.S. are notably higher for international students, but Green Cards can significantly reduce these costs. Resident students may qualify for in-state tuition rates at public colleges, which are substantially lower than tuition fees for out-of-state or international students.

Moreover, Green Card holders have access to a broader range of scholarships and financial aid opportunities that are exclusive to U.S. citizens and permanent residents.

One significant benefit for students with Green Cards is the ability to work without the limitations faced by those on student visas, who are typically restricted to on-campus employment. Permanent residents can work any job, participate in internships, and pursue employment opportunities after graduation without restrictions.

Unlike international students, who may need to renew their visas during their studies, Green Card holders are exempt from this requirement, avoiding the complexity of the U.S. immigration system during their education.

Post-graduation plans are also more straightforward for Green Card holders compared to students on visas. While those on student visas often need to get another visa or return home after their studies, Green Card holders are free to remain in the U.S., pursue employment, and engage in post-graduate opportunities without the need to adjust their status or secure employment sponsorship.

Family-Wide Rewards

Obtaining a Green Card through the EB-5 program enables investors to establish a foundation for their family members to build their lives in the United States. The “jus soli” principle, or right of the soil, ensures that children born in the U.S. automatically receive U.S. citizenship.

So, investors opting to start or expand their families in the U.S. are essentially providing their U.S.-born children with the privilege of U.S. citizenship. This legacy of citizenship can extend to future generations, as U.S. law allows for citizenship by descent if one parent is a U.S. citizen. The long-term advantages of acquiring a Green Card through the EB5 program can span multiple generations.

Beyond obtaining Green Cards for their spouses and unmarried children under the age of 21, EB-5 Green Card holders also have the capability to sponsor additional family members for Green Cards. This includes unmarried children of any age.

Another advantage of having a U.S. Green Card is entry into the American healthcare system, renowned for hosting some of the finest hospitals, medical schools, and research institutions globally, along with cutting-edge healthcare technologies. EB-5 investors with Green Cards can obtain health insurance and access top-tier medical care. They may also qualify for social security benefits, which could include financial aid.

Green Cards also permit EB5 investors to spend their retirement years in the U.S. Contrary to popular belief, a tourist visa is not sufficient for retirement in the country. Although a tourist visa is valid for a decade, it only allows for a six-month stay per visit. On the other hand, Green Card holders can reside in the U.S. indefinitely, making the EB5 program an ideal route for those seeking retirement in the United States.

Key Insights to Remember

While enjoying numerous benefits, Green Card holders also face certain limitations. These include:

• Green Cards need to be renewed every ten years.
• Holders of Green Cards are not entitled to U.S. passports.
• Children born abroad to Green Card holders are not automatically eligible for Green Cards themselves.
• Having a Green Card does not grant the right to participate in U.S. elections through voting.
• Green Card holders cannot seek elected political positions in the U.S.
• Protected against deportation under most circumstances, Green Card holders can still face deportation for legal violations or criminal activities.
• It’s mandatory for Green Card holders to carry their Green Cards at all times, with failure to do so potentially leading to a 30-day jail sentence.
• Green Card holders need to take additional steps to secure their re-entry into the U.S. if they will stay abroad for a long time.
• Green Card holders planning to stay outside the U.S. for an extended period of time may risk losing their status.
• Green Card holders are required to file annual income tax returns with the IRS and their residing state’s tax authority (although some states do not impose state income tax).
• Male Green Card holders aged between 18 and 25 are obliged to register with the Selective Service, despite the last U.S. military draft occurring in 1973.

Work with EB5AN to Maximize Benefits

By participating in the EB-5 program, foreign investors can gain U.S. residency benefits and even pursue U.S. citizenship later on. To successfully navigate every step of this process, it is highly advisable to seek help from industry experts.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

If you are a prospective EB-5 investor seeking to explore how this program can provide your family with vast opportunities, book a free call with our EB-5 team today.

Every EB-5 investment carries inherent risks. These risks vary across different project types but can generally be categorized under two groups: immigration risk and financial risk.

These two risk categories align with the primary motivations for EB-5 investors. The main reason why foreign nationals invest in EB-5 projects is U.S. immigration, so immigration risk is the first consideration.

Additionally, with a substantial amount of money involved, protecting this investment is crucial, leading us to the second consideration—financial risk.

EB-5 investors are advised to meticulously evaluate the immigration and financial risks associated with any EB-5 project. It’s crucial to steer clear of projects that present high levels of either type of risk. Fortunately, there are low-risk projects available, and investors are encouraged to be discerning in their choices.

In this article, we will explore the two types of risks involved in EB-5 investments, and delve into what investors can do to mitigate these risks.

What Is Immigration Risk?

Immigration risk involves any factor that could hinder an investor’s main objective of securing a permanent Green Card to become a lawful permanent resident in the United States.

Mitigating immigration risk means tackling the key factors that lead to the denial of EB-5 immigrant petitions. Individual risks for EB-5 investors arise from their background and the accuracy of their petitions. Petitions can be rejected by the United States Citizenship and Immigration Services (USCIS) for reasons such as fraud, false representations, illicit sources of EB-5 investment capital, and other specific shortcomings related to an investor. To minimize these personal risks, EB-5 investors are advised to carefully choose their immigration counsel.

For investors who submit accurate applications in good faith, in addition to having clean backgrounds and legitimate source of funds, the most common reasons for the denial of EB-5 immigrant petitions involve lapses in compliance by regional centers or issues with the project itself, particularly a failure to generate the required number of jobs.

Compliance with EB-5 Requirements

USCIS requires strict compliance with the EB-5 program’s regulations. Navigating the EB-5 rules has always been complicated, requiring expertise to successfully set up projects that are eligible for EB-5 investments. The enactment of the EB-5 Reform and Integrity Act of 2022 made it even more important to have an experienced and well-informed regional center sponsor to guarantee EB-5 compliance.

To minimize immigration risk, EB-5 investors are encouraged to choose projects associated with independent, third-party regional centers that are not affiliated with the project’s developers. It’s crucial that the operator of the regional center has considerable experience and a track record of meeting all EB-5 program requirements. Ensuring accountability is essential for establishing trust, so investors should choose projects where regional centers are committed to regular updates and value transparency.

Fulfillment of Job Creation Requirements

EB-5 immigration risk is closely linked to the requirement of job creation. The EB-5 program’s core objective is to spur economic growth within the United States, particularly in rural areas or regions with higher-than-normal unemployment rates. The program gauges economic development by the amount of money invested and the number of jobs created.

For an investor to be eligible for permanent residency, a minimum investment of $800,000 is required for projects in a targeted employment area (TEA), or $1,050,000 for projects situated outside of a TEA. A TEA is designated based on rural status or high unemployment levels.

Beyond the financial commitment, the EB-5 program requires the creation of at least 10 full-time, permanent positions for U.S. workers per investor. In the case of projects sponsored by regional centers, employment numbers are calculated using economic models. For these projects, both the jobs created directly by the project and those that come from the surrounding economic activity can be considered.

Investors are advised to steer clear of projects that only aim to meet the bare minimum job creation requirement. Projects that are expected to generate a significant number of additional jobs are preferable.

According to EB-5 regulations, investing in successful projects that have already created jobs is allowed. Therefore, the safest projects for investment are those that have already surpassed the job creation requirements for all prospective EB-5 investors.

What Is Financial Risk?

Financial risk refers to any factor that could jeopardize the complete return of the capital an EB-5 investor has placed into an EB-5 project.

To minimize financial risk, it’s essential to focus on the fundamental aspect of any investment: the ability of the developer to not only complete the project and achieve financial success but also to return all the invested capital.

Certain EB-5 projects are heavily reliant on EB-5 capital for their success, and without achieving a critical level of EB-5 investment, these projects may fail. These projects have not secured alternative financing to cover all necessary expenses and may struggle to find the required funding to proceed. Such scenarios pose considerable immigration and financial risks to EB-5 investors, as a project’s inability to reach completion as intended could lead to insufficient job creation and the potential partial or total loss of the investors’ funds.

Projects that exhibit the lowest financial risk to EB-5 investors are those that have already secured enough funding to ensure the completion of the development and/or operations and do not depend on EB-5 investments for their success. In these cases, EB-5 funds serve as an alternative to more costly financing options.

Choosing Projects with Minimal Risk

EB-5 investors should carefully assess projects and only select projects that offer excellent regional center compliance, have already created enough jobs for the maximum number of EB-5 investors, and are not reliant on EB-5 capital to succeed.

EB5AN is pleased to offer several such projects.

For more information on EB5AN’s best-in-class, low-risk EB-5 projects, please schedule a free one-on-one call with our team today.