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EB-5 Visa Petition Processing Data from FY2020 Q2

United States Citizenship and Immigration Services (USCIS) has released statistics about its processing data from the second quarter of 2020 financial year (January 1 to March 31, 2020). Processing rates have increased considerably compared to Q1 FY2020; however, the processing rate remains far lower than it was in previous years.

USCIS also received far fewer petitions than it did in previous years. The marked difference can be ascribed to the implementation of the EB-5 Modernization Rule on November 21, 2019, which doubled investment amounts and led to an application rush in Q1 of FY2020. Additionally, I-924 filings have probably declined because of the processing delays and USCIS’s estimated processing time of 53 to 99 months.

Download USCIS I-526 and I-829 Visa Processing Statistics for Q2 FY2020

I-526 Petition Statistics for Q2 FY2020

In Q1 of FY2020, USCIS received 4,264 I-526 petitions. This dropped to only 21 in Q2. In Q2, USCIS approved 714 petitions and denied 190, leaving 16,633 pending. While these numbers are an improvement on the first quarter of the year, when 383 petitions were approved, 72 were denied, and 17,468 remained pending, only 904 petitions were processed. This is on par with Q2 FY2019.

 


 

I-829 Petition Statistics for Q2 FY2020

While the number of I-829 petitions has also decreased from Q1 to Q2 of FY2020, the decrease as not been as significant, falling from 1,013 to 604. The processing backlog has remained largely steady, decreasing from 10,373 in Q1 to 10,309 in Q2. However, the number of petitions approved increased from 436 to 730, which is the largest number of I-829 petitions approved since Q1 FY2018. USCIS did not include the number of petitions denied in Q1 2020, citing protection of privacy, but in Q2, it denied 57 petitions. Thus, the Q2 denial rate is 7%.

 


 

Are the Improved Processing Times a Reason for Optimism?

During the March 2020 EB-5 stakeholder engagement, Sarah Kendall, chief of the Immigrant Investor Program Office (IPO), mentioned infrastructure development as one of the reasons for the decrease in the processing of EB-5 petitions in FY2019. She noted that preliminary statistics for February 2020 showed a marked improvement in processing rates, and the Q2 FY2020 EB-5 data seems to support that claim. Nevertheless, the IPO’s productivity remains shockingly low compared to FY2018, despite no significant changes having been made to the staffing levels.

On June 16, 2020, Charles Oppenheim, the chief of the Visa Control and Reporting Division of the U.S. Department of State, participated in an EB-5 webinar hosted by IIUSA. During the webinar, he discussed not only the FY2020 processing statistics but also the way forward, focusing on investors from countries with high application volumes, the possibility of offering additional EB-5 visas in FY2021, and the improved processing output at the IPO. Based on his comments, there might be some reason for optimism, but only the Q3 and Q4 processing will provide a clear view of the situation at the IPO and USCIS.

Additional Factors Influencing EB-5 Petition Processing in FY2020

On March 31, 2020, USCIS changed from a first-in, first-out approach to a visa availability approach for adjudicating I-526 petitions. This change comes at the end of Q2, so it is not reflected in the latest statistics. While it will not affect overall processing output, it will affect processing on a per-country basis.

Additionally, the COVID-19 pandemic that is wreaking havoc worldwide brings its own uncertainties to the EB-5 program. Although the reopening of some U.S. consulates and embassies might mean that USCIS can issue all available EB-5 visas before the end of the financial year on September 30, 2020, only time will tell whether this will be the case.

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Trump Extends Immigration Ban Until the End of 2020

Understanding Employee Qualifications for Direct EB-5 Investments

On April 22, 2020, President Trump signed into law a temporary immigration ban, intended to last for 60 days. The purpose of the legislation was to ensure U.S. workers were prioritized as the economy reopens after being ravaged by the COVID-19 pandemic. However, the decree included a number of exceptions, including the immediate family members of U.S. citizens and residents and investors in the EB-5 Immigrant Investor Program.

On June 22, 2020, Trump extended the immigration ban, effective June 24. Citing the belief that economic recovery in the United States will take several months, Trump has prolonged the ban dramatically, with the United States now disallowing immigrants until the end of 2020. The proclamation was also extended to include holders of nonimmigrant visas H-1B, H-2B, L, and J. Any would-be immigrants who do not have a valid visa or travel document other than a visa by June 24, 2020, will be ineligible to enter the United States until the end of 2020, unless they also fall into one of the exception categories. Any foreign nationals already living in the United States under a work visa remain unaffected by the decree.

Exemptions to the Immigration Ban

Foreign nationals with permanent resident status are always permitted to enter the United States, as are the spouses of U.S. citizens or residents. Similarly, the unmarried children younger than 21 of any U.S. citizen or resident are always welcome in the country. In the fight against COVID-19, physicians, nurses, and other health care professionals are also exempt from the extended immigration ban. Additionally, EB-5 investors can breathe a sigh of relief, because they are once again exempt from the immigration ban, despite an open letter to President Trump from May 7 pressuring Trump to extend the ban to EB-5 investors.

Of course, EB-5 investors may face additional obstacles in the chaotic year of 2020. Any travel restrictions in place for an investor override the immigration ban exemption, so some EB-5 investors will still be unable to enter the United States. Investors must also obtain their U.S. green card before relocating to the United States, but the temporary suspension of routine visa services at U.S. embassies and consulates has halted the EB-5 process for investors overseas. Thus, while immigration to the United States is technically allowed for EB-5 investors, it is infeasible in practical terms for many investors.

Why the EB-5 Program Is the Best Choice for U.S. Immigration

Beyond the obvious advantage of the EB-5 program in the face of the pandemic, the EB-5 program offers numerous advantages over popular nonimmigrant visas such as the H-1B or L visa. To obtain such a visa, an applicant must locate an employer willing to sponsor them, which is easier said than done, and even then, acceptance is not guaranteed—applicants must compete in the annual H-1B lottery, since demand is too high. Those lucky enough to be accepted then face tough restrictions once in the United States, able to perform work activities only for the employer who sponsored them, and are generally only allowed to stay in the United States for a temporary period.

Conversely, EB-5 investors enjoy the freedoms the United States is known for. As green card holders, they have permanent resident status, which allows them to live, work, study, and travel freely anywhere in the United States. Permanent residents can also freely travel abroad and will always be welcomed back in the country simply by presenting their U.S. green card. An EB-5 visa allows an investor and their spouse and unmarried children younger than 21 to live in the United States indefinitely, enjoying almost all of the same rights and freedoms as U.S. citizens.

The EB-5 program is also generally easier for applicants, as long as they have the necessary investment capital. The key requirements of the EB-5 program are an investment of the appropriate amount—either $1.8 million or $900,000, depending on whether the chosen project is in a targeted employment area (TEA)—and proof of the lawful sources of the EB-5 investment funds. Once an investor’s I-526 petition is approved, they may apply for an EB-5 visa and are granted conditional permanent resident status for two years. During this two-year period, they must keep their investment capital at risk, and before their conditional permanent resident status expires, they must file an I-829 petition to prove their investment created at least 10 new full-time jobs for U.S. workers. Upon approval of the I-829, they and their immediate family members can enjoy U.S. permanent resident status—it’s as simple as that.

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Insights into FY2020 EB-5 Processing with Charles Oppenheim

Understanding Employee Qualifications for Direct EB-5 Investments

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

Consulate Closures

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

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

Issuance of EB-5 Visas in FY2020

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

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

FY2020 Visas Issued to Chinese EB-5 Investors

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

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

FY2020 Visas Issued to Indian EB-5 Investors

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

FY2020 Visas Issued to Vietnamese EB-5 Investors

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

EB-5 Visa Availability in FY2021

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

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

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

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

IPO Processing Productivity

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

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

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What Kind of Funds Can Investors Use in the EB-5 Program?

Understanding Employee Qualifications for Direct EB-5 Investments

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

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

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

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

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

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

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Indian EB-5 Final Action Date Current in July 2020 Visa Bulletin

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

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

Chart A: Final Action Date

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

Chart B: Date for Filing

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

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Investing in a Troubled Business in the EB-5 Program

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

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

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

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

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

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

What is the minimum required investment amount for troubled businesses?

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

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

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What Is the EB-5 Visa Bulletin?

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

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

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

Final Action Date

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

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

Date for Filing

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

COVID-19 Complications

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

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

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What Are the Best U.S. Start-up Visas for Entrepreneurs?

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

The following visas are available to eligible immigrants:

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

Immigrant Visas vs. Nonimmigrant Visas

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

Visas for Foreign Entrepreneurs and Investors

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

EB-1 Visa: Immigrants with Exceptional Abilities

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

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

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

EB-2 Visa: Highly Skilled Immigrants

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

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

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

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

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

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

EB-5 Visa: Immigrant Investors

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

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

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

H-1B Visa: Specialty Occupations

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

E-2 Visa: Treaty Investors

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

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

L-1 Visa: Intracompany Transferees

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

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

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

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

What’s the Best Option for You?

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

Free EB-5 Project Evaluation

What to Consider When Investing in the EB-5 Program

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

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

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

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

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

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

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

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

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

3. What Additional Fees Might You Incur?

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

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

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

Free EB-5 Project Evaluation

Promoting the Positive Impacts of the EB-5 Program

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

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

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

Sharing Positive EB-5 Stories

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

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

Holding USCIS Accountable

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

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

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

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