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Meeting USCIS Requirements for Direct EB-5 Investment Projects

Meeting USCIS Requirements for Direct EB-5 Investment Projects

The EB-5 program has many benefits for its stakeholders. Foreign nationals can use it as a pathway to U.S. permanent residency for themselves and their immediate family members, project developers in the U.S. can use it as a reliable source of capital, and the U.S. economy benefits from the billions of dollars that can be used to alleviate unemployment. However, the regulations of the EB5 investment program, which is overseen by United States Citizenship and Immigration Services (USCIS) can be overwhelming to those who are unfamiliar with the industry. One of the key aspects of the program is the requirement of each EB-5 project to create at least 10 jobs per investor which, at first glance, can seem like a daunting task.

In working towards complying with EB-5 investment regulations, business leaders should keep in mind that the industry offers two different types of investment models: direct investment projects and regional-center sponsored projects. Investors have the freedom to select the model that best suits them. If they choose the direct EB-5 investment offering, there are certain guidelines to consider.

1. Contrasts Between the Two EB-5 Investment Models

The EB-5 regional center program was created in 1992. In this model, foreign nationals make a minimum investment of $800,000—recently increased with the passing of the EB-5 Reform and Integrity Act of 2022—in a USCIS-approved regional center. Regional center projects are able to count indirect and induced jobs—those that are created as a result of the new commercial enterprise’s (NCE’s) economic impact—towards meeting the job creation requirement. The only caveat is that these jobs can only count for 90% of the requirement, meaning that at least one direct, W-2 position needs to be created to fully comply with USCIS regulations.

The greatest difference between the direct EB-5 investment model and the regional-center sponsored model is that direct EB-5 projects can only use direct, W-2 positions to fulfill the job creation criteria. This means that all of the jobs created by the project have to be full-time positions, so any indirect or induced employment—such as independent contractors and part-time employees—do not count towards complying with the regulation. In addition, they are smaller in scope than regional center projects and, where regional centers can have multiple investors, direct EB5 projects are limited to one.

2. Retaining Documentation on EB-5 Direct Jobs

In order for the jobs created by a direct EB5 investment project to count towards meeting USCIS regulations, direct investment projects must maintain thorough records of the employment process. No detail is too insignificant as these businesses must prove that the investment project created the minimum of 10 jobs, and that each of those jobs was available for two consecutive years. In addition, the jobs created by the direct EB5 investment project must be full-time positions, though they do not have to be filled by the same person for the entire two-year period. Examples of hiring documentation include, but are not limited to, salary statements, timesheets, Form W-4 and, most importantly, Form W-2.

Direct EB-5 investment project developers must also be careful to hire employees that meet the standards set forth by USCIS. The agency requires that EB-5 positions be filled by individuals who are legally authorized to work in the United States, such as permanent residents and U.S. citizens. This adds a layer of complexity to the hiring process, as employers are prohibited from requesting certain immigration information and Form I-9, Employment Eligibility Verification, doesn’t prove a person’s authorization for work. With this in mind, it may be best for direct EB-5 businesses to hire U.S. citizens and permanent residents.

3. Considerations for a Direct EB-5 Offering

When evaluating a possible direct EB-5 investment opportunity, foreign nationals should keep in mind the potential it has to comply with USCIS regulations. The EB-5 visa process has been known to be quite lengthy, and ensuring a project’s ability to meet USCIS standards will decrease the likelihood of running into any issues. In turn, that will increase the efficiency of the investor’s pathway to U.S. permanent residency and the project’s overall success.

One of the things to look for with regards to compliance is the potential for job creation, as this is a key aspect of the EB-5 visa program. Businesses that are able to create more than the minimum of 10 jobs will likely be more attractive to investors than others. In addition, investors should also consider the business developer’s track record. Those that have a history of high I-526 approval rates have a greater likelihood of being able to raise the appropriate amount of capital, which is another important aspect of a direct EB5 investment project. Demonstrating financial stability will be crucial in determining the potential success of the business in its market.

A solid business plan is the best way to demonstrate an EB-5 project’s financial stability. The plan should include market data, an analysis of the potential economic impact, and a description of the jobs it will create. One thing to look out for is how much the business is dependent upon the EB-5 investment capital. An overdependence on EB-5 investment capital is a sign that a business may not be financially stable enough to succeed and may put the approval of an I-526 petition at risk. Almost any for-profit entity has the potential to qualify for EB-5 funding, and many of these businesses are in the restaurant, retail, hospitality or wholesale industries.

The process for creating a direct EB-5 project that meets USCIS regulations is a lengthy and often complex one. However, many industry stakeholders have been able to overcome the challenges that come with the process and, with the help of expert consultants and immigration attorneys, now have the advantage of direct EB-5 funding at below-market rates.

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Key Aspects of the Direct EB-5 Investment Model

The Visa Bulletin for April 2022 At a Glance

Since June 2021, the direct EB-5 investment model has taken center stage in the EB-5 industry. Historically, the regional center EB5 investment model has been more commonly used, but it was deauthorized for several months and will only resume operations in mid-May 2022. The regional center model offers greater flexibility in meeting the job creation criteria set by United States Citizenship and Immigration Services (USCIS), making it the more popular option. While the direct investment model is more stringent, there are many benefits to this model, including the potential for faster access to the investment funds that are essential to EB-5 projects.

What is the Limit on the Number of Investors Who Can Participate in an EB-5 Direct Investment Project?

Direct EB-5 projects can only take on one EB-5 investors; all pooled projects must be sponsored by a regional center. In addition, it is important that the EB-5 investment funds make up only a small portion of the new commercial enterprise (NCE). Projects that are overly dependent on EB5 investment capital are considered less stable and pose risks both to the project itself and to the foreign national hoping to be granted permanent resident status through an EB-5 visa.

Meeting the Job Creation Criteria

As mentioned previously, the regional center EB-5 investment model facilitates the job creation criteria with greater ease. These projects can count any jobs created by the economic impact of the NCE to meet the criteria. This is known as induced and indirect employment. Examples include the NCE purchasing local materials and the employees of the NCE spending their wages at local businesses. Direct investment projects, on the other hand, can only use positions that appear on the NCE’s payroll to meet the job creation criteria. Part-time and contract employees will not count, only full-time employees who receive a W-2.

In addition, the positions created by the NCE must last for at least two years and be filled by persons legally authorized to work in the United States. The only flexibility lies in the fact that the positions do not need to be filled by the same employee for the two-year period. The position must simply be available for that entire time.

How Involved Do Investors Need to Be In Direct EB-5 Projects?

Direct investment projects often require investors to have a more hands-on approach to the day-to-day operations of the project, at least in comparison to the regional center model. The regional center model historically gives investors the role of a limited partner, which makes it attractive to foreign nationals who are not interested in the business aspect of the project. The direct investment model, on the other hand, often gives investors more of a managerial role, which could be appealing to investors who wish to understand the inner workings of their project and have an impactful role on decisions that affect the business. Potential investors would do well to thoroughly examine the scope and terms of each project before committing funds to it. This will ultimately depend on the project’s management structure.

The greatest difference between the regional center model and direct investment model of the EB-5 investment industry is that one offers greater flexibility while the other is more streamlined. The EB-5 visa program has proven to be a safe and reliable pathway to U.S. permanent residency and is a great opportunity for foreign nationals who aspire to build a life for themselves and their immediate family members in the United States.

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The EB-5 Industry Ushers in a Wave of New Regulations After the Signing of the EB-5 Reform and Integrity Act

The Visa Bulletin for April 2022 At a Glance

On March 15, 2022, President Joe Biden signed the omnibus spending package into law, which included the EB-5 Reform and Integrity Act of 2022. This act brings significant change to the EB-5 industry, most of which is welcomed by stakeholders. Placing a greater emphasis on transparency, efficiency and protection for investors and project developers alike, the EB-5 Reform and Integrity Act may mark the most extensive reform that the industry has seen in its history.

Below is an overview of the revised regulations brought on by the EB-5 Reform and Integrity Act.

  • The EB-5 Regional Center Program has been given a long-term reauthorization. Rather than just a few months, the program has been reauthorized through September 2027. A grandfather clause was added to grant the adjudication of any I-526 petitions filed by regional center investors on or before September 2026. Investors whose petitions were put on hold can breathe a sigh of relief, knowing that their petitions will move forward, and all regional centers can resume operations.
  • Rural targeted employment areas (TEAs) will now be given priority processing status, and United States Citizenship and Immigration Service (USCIS) will now be responsible for designating high-unemployment TEAs.
  • Forms I-526 and I-485 may now be filed concurrently. This is a major advantage for foreign nationals who are residing in the United States under a different visa (such as the H-1B). Should they make an EB-5 investment, they now no longer have to wait for their Form I-485 to be approved before filing Form I-526. This will make the process much more streamlined and efficient.
  • Limitations on meeting the job creation criteria. Previously, indirect and induced jobs could make up 100% of the job creation criteria for regional center projects. Under the new regulations, indirect and induced positions can only count for 90% of the job creation criteria. Within that, only 75% can be construction jobs lasting less than two years. This means that there must be at least one direct, W-2 position created by each regional center EB5 investment project.
  • The investment thresholds have increased to $800,000 for projects in TEAs and $1,050,000 for projects outside of TEAs.

This reform, while extensive, is welcomed by the EB-5 investment industry with excitement. It marks the beginning of a new era in the industry, promising to make the EB-5 visa process more efficient than ever. Foreign nationals who plan to make an EB5 investment should contact an immigration attorney for guidance. EB5AN, one of the leading consulting firms in the industry, is always available to answer questions and offer guidance.

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All About EB-5 Regional Centers

The Visa Bulletin for April 2022 At a Glance

The EB-5 Immigrant Investor Program has long been a common pathway for foreign nationals to obtain permanent residency status in the United States, exploding in popularity in the 2010s after severe underutilization in its first two decades of existence. But it isn’t the EB-5 program itself that accounts for most of these EB-5 investments—it’s the EB-5 Regional Center Program. Regional centers are overwhelmingly the preferred vehicle for EB5 investments for a number of reasons. In fact, in FY2019, 96% of investors made their EB-5 investment through a regional center.

The EB-5 Regional Center Program was born in 1992, just two years after the EB-5 program itself. Its purpose was to consolidate EB-5 investment funds from different investors to drive more economic growth and achieve higher job creation figures. Since its initial creation, the program has faced several reauthorizations but has yet to be established as a permanent immigration program, even though EB-5 itself is a permanent visa category. After several months of deauthorization since June 2021, the regional center program was revalidated in March 2022 by the EB-5 Reform and Integrity Act.

What Is a Regional Center?

A regional center is a commercial entity that promotes and manages EB5 investment funds and funnels them into select new commercial enterprises (NCEs) that qualify for the EB-5 program. Most regional centers are limited partnerships or limited liability corporations and may be owned privately or publicly or through a public–private partnership. In most cases, they rely on third-party intermediaries to promote their EB5 investment opportunities to prospective investors, although the rise of the internet opens more avenues for regional centers to conduct recruitment themselves.

A regional center must obtain designation from United States Citizenship and Immigration Services (USCIS) by filing Form I-924. Regional centers apply for designation in a specific geographic area, which can be as large as multiple states and as small as a single county. To maintain their regional center designation, they must demonstrate to USCIS in their annual I-924A report that they are promoting economic growth throughout their entire region of designation. Regional centers may apply to adjust their geographic reach.

Regional Center Terminations

The number of USCIS-approved EB-5 regional centers has followed the same trend as the EB-5 program itself. In 2007, USCIS only listed 11 approved regional centers across the United States, a figure that exploded over the proceeding decade to 674 as of December 2020. However, December 2020’s figure comes off the trail of rampant regional center terminations since 2018. Also in December 2020, USCIS listed a whopping 532 regional centers that it had terminated since 2008, with 73% of those meeting their end since 2018. This highlights the importance for foreign nationals considering making an EB-5 investment through a regional center to conduct careful due diligence before committing their funds.

It is worth noting, however, that a regional center termination only affects investors who have yet to receive their conditional permanent resident status. Foreign nationals (and their immediate family members) who make an EB5 investment through a regional center and obtain conditional permanent resident status after I-526 petition approval are unaffected by their affiliated regional center being terminated, as long as they continue to demonstrate compliance with program regulations. Moreover, the Reform and Integrity Act introduced provisions for innocent investors whose regional centers are terminated—they can now reinvest in another project without losing their processing priority date.

Benefits of Regional Center EB-5 Investment

Why do the majority of EB-5 investors choose regional centers? After all, the EB-5 Regional Center Program is only temporary, whereas the base EB-5 Immigrant Investor Program is permanent.

The overall EB5 investment process is usually much more streamlined and secure for regional center investors. The program requirements remain the same, but the program offers two key differences that facilitate the process for investors: relaxed job creation calculation methodology and differently structured governance that affords investors more freedom.

Anyone who makes an EB-5 investment must demonstrate the creation of at least 10 new jobs for U.S. workers to qualify for the permanent resident immigration benefits the program offers. However, while direct EB-5 investors are restricted to direct jobs listed on the NCE’s payroll—which may be impossible for certain types of businesses—regional center investors may additionally count indirect and induced jobs. Indirect jobs are those created by the NCE’s expenditures on external goods and services, while induced jobs are those created in the community by the local spending of the NCE’s employees. Hiring a third-party economist and using approved calculation methodologies, a regional center investor can meet the 10-job EB-5 requirement much more easily than a direct investor.

Next is the different governance structure of regional center EB5 investments, where investors typically serve as limited partners, voting on important business decisions. This is enough to satisfy the requirement of active involvement in the NCE and can be accomplished remotely, allowing an EB-5 investor to live anywhere in the United States, even if it’s far away from their EB-5 project. It also allows those with limited managerial experience to participate in the EB-5 program. Direct investors, conversely, generally engage in the daily management operations of the NCE, which may necessitate managerial know-how and require them to live near the business.

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The Visa Bulletin for April 2022 At a Glance

The Visa Bulletin for April 2022 At a Glance

The Department of State (DOS) has released the Visa Bulletin for April 2022. For the EB-5 industry, this monthly publication shows which investors are eligible to apply for and receive their two-year conditional green cards after their I-526 petitions have been approved. This information only pertains to investors from oversubscribed countries with a particularly high demand for the EB-5 visa. However, investors from countries that could potentially become oversubscribed also do well to keep track of the trends presented in each Visa Bulletin.

Chart A, Final Action Dates For Employment-Based Preference Cases

The April 2022 Visa Bulletin does not reflect any changes from the previous month’s cutoff dates. All regional center investors in Chart A are still marked as “Unauthorized”, and direct (that is, “non-regional center”) investors still enjoy “Current” status. For the time being, Chinese investors who receive approval for Form I-526 can apply for and receive their two-year conditional Green Cards as soon as these are available. Chinese investors had experienced a processing backlog from 2015 until the December 2021 Visa Bulletin, but it is unclear if this nationality will enter retrogression once more in the coming months.

Chart B, Dates For Filing Of Employment-Based Visa Applications

The dates for filing only apply to Chinese investors when the country is undergoing visa retrogression, and they restrict when Chinese nationals with approved I-526 petitions can apply for their initial visas. As in Chart A, all Chinese direct investors have no date for filing, but investors in regional center-sponsored projects have a date for filing of December 15, 2015. This means that regional center investors from China with a I-526 filing date later than December 15, 2015, will not be able to apply for their visas.

A Watershed Period in the EB-5 Investment Industry

The April 2022 Visa Bulletin comes at an important time in the EB-5 program’s history: on March 15, 2022, the EB-5 Reform and Integrity Act was signed into law. This bill reauthorized the regional center program and made many other changes to increase the transparency and safety of EB5 investment offerings. Even though regional center investment was revalidated through 2027, this change will only be made effective starting in May 2022. As a result, the April 2022 Visa Bulletin still marks regional center investors as “Unauthorized” in Chart A. It will be intriguing to find out whether the return of regional center EB-5 visa applications will result in backlogs for countries such as China or India.

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Guidelines for Submitting Form I-526

Guidelines for Submitting Form I-526

The first step in the EB-5 visa process is the irrevocable commitment of investment funds in a new commercial enterprise (NCE) in the United States. After that, investors must submit Form I-526, Immigrant Petition by Alien Investor. In this form, investors should include details about the terms of the project they have invested in. In addition, foreign nationals should include documentation supporting the fact that their funds have come from credible sources and that the applicable taxes have been paid. This form is reviewed by United States Citizenship and Immigration Services (USCIS) and, should it determine that their requirements were met, the investor and their immediate family members are granted a two-year residency status.

Although it is a safe pathway to U.S. permanent residency, the EB-5 investment process is not without its challenges. USCIS carefully scrutinizes every detail of Form I-526 and, if they find that there is information missing or something was done incorrectly, they may send a request for evidence (RFE). This doesn’t necessarily mean that the petition will be denied, but it does add another layer of time to a historically slow process.

In order to avoid additional requests for information, potential investors and their immigration attorneys should pay careful attention to an aspect of Form I-526 that demonstrates the financial viability and stability of the EB5 investment project: the business plan.

Potential for Financial Success

A solid EB-5 investment project business plan will show USCIS that the project will successfully meet the job creation criteria, have a positive impact on the economy, and be financially viable. In order to do that, the business plan has to detail how the NCE will operate, including a marketing strategy, a projected budget, and a market analysis from a third party. All aspects of the business plan are important, but the market analysis supports the project developers’ projections for the NCE’s success. The projects most likely to receive approval are the ones that are only using the EB-5 investment funds as a small portion of the business’ overall capital. An overdependence on EB-5 investment funds shows that the business is not financially viable.

Another key factor to keep in mind is consistency throughout the business plan. These may seem like harmless mistakes, but if the information contained in the business plan is not consistent, USCIS is likely to deny the petition. It is in the best interest of the project developers and investors to carefully look over the petition and ensure there are no discrepancies.

Meeting EB-5 Investment Regulations

Prior to irrevocably committing their funds, investors should consider several factors. It is critical that the EB5 investment project not only be a sound, financially viable business, but that it also meets USCIS regulations. One example is ensuring that the NCE can created the required minimum of 10 jobs per investor. In addition, investors should ensure that they’ve met the required minimum investment threshold which, as of March 2022, is $1,050,000 for projects that are not in a targeted employment area (TEA). Projects that are in a TEA have an investment threshold of $800,000.

Meeting the job creation requirement is a key obligation of every EB-5 investment project. After all, the program was created to benefit the U.S. economy while also providing a pathway to U.S. residency for foreign nationals. The minimum of 10 jobs must be available for the entirety of the two-year conditional residency period granted to investors and must be filled by persons who are lawfully authorized for employment in the United States. In addition, the type of employment that can be counted towards the required minimum will depend on the investment model that is being used. The regional center model allows for indirect and induced employment (those that are created by the NCE’s overall economic impact) to be counted. By contrast, direct investments only allow jobs that are directly created by the NCE to count towards the required minimum.

The EB-5 visa process can at times seem overwhelming, which is why it is recommended that foreign nationals choose an immigration attorney with substantial expertise in the industry to guide them through the process.

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Changes to the EB-5 Industry Under the EB-5 Reform and Integrity Act

Changes to the EB-5 Industry Under the EB-5 Reform and Integrity Act

After several stopgaps, Congress passed the omnibus spending package on March 11, 2022. This spending package included an EB-5 reform bill, known as the EB-5 Reform and Integrity Act of 2022. The Integrity Act marks the most significant change to the EB-5 investment program since its beginning more than 30 years ago. On March 15, 2022, President Biden signed the spending package, known as the Consolidated Appropriations Act, which put all new measures into immediate effect.

What’s Included in the EB-5 Reform Bill

  • After the longest suspension in its history, the EB-5 Regional Center Program received reauthorization through September 30, 2027. This is the longest reauthorization the program has received since 2015.
  • Pending I-526 petitions from regional center investors will be allowed to continue in the EB-5 visa process, and any petitions made on or before September 30, 2026 will be adjudicated without dependence on the program’s reauthorization. This will avoid having investors in “processing limbo” should the program experience another lengthy suspension.
  • Minimum investment thresholds have increased once again from $500,000 for projects in targeted employment areas (TEAs) to $800,000. Projects not located within TEAs now have an investment threshold of $1,050,000, up from $1,000,000. To account for inflation, these thresholds will be adjusted every five years.
  • United States Citizenship and Immigration Services (USCIS) will now be in charge of designating high-unemployment TEAs.
  • Regional center EB-5 investment projects will still be allowed to count indirect employment to meet the job creation requirement, but only for 90% of the jobs. This means that these projects will now have to create at least one direct employment position.
  • Form I-526 and Form I-485 can now be filed simultaneously.
  • New integrity measures have been put into place to ensure transparency in the EB-5 process. For example, a new integrity fund has been created, requiring regional centers to contribute $10,000–$20,000 each year.
  • 20% of the EB-5 visa pool will be reserved for projects in rural TEAs.

The Impact of These Changes on Current and Potential Investors

The most pressing issue in the EB-5 investment industry has been the reauthorization of the regional center program. The program had been defunct since June 2021, leaving investors with pending I-526 petitions without any guarantees regarding what would happen to their investments and their dreams of U.S. permanent residency. The Integrity Act renews the trust in the program as a safe investment with the “grandfathering” clause, which ensures that each I-526 petition will be adjudicated regardless of the reauthorization of the program. This will also avoid further litigation against the EB-5 program.

With the lapse in the regional center program, direct EB5 investment projects have taken center stage in the industry, and all direct investors have had “current” processing status for months. This may change in the near future, with the reauthorization of the regional center program potentially creating backlogs for countries with high demand, such as China. These countries may experience cutoff dates, which will create challenges in the traditionally slow adjudication process. Faster processing times for I-526 petitions are now more important than ever. Investors from high demand countries may be more interested in rural TEA projects, as those will be the priority and may receive approval prior to cutoff dates being imposed.

Advantages for Holders of Different Visas

Investors who currently reside in the United States under an H-1B or E-2 visa benefit tremendously from the ability to file Form I-526 and I-485 concurrently. Submitting both forms at the same time allows them to receive more immediate work authorization and avoid consular visa processing. In addition, when submitting Form I-485, they will not be held liable for any status violations less than 180 days.

Indian nationals, who made up 75% of the H-1B visas granted in fiscal year 2020, may be particularly interested in filing Form I-485 simultaneously with Form I-526. However, there is an exception to the simultaneous filing, in that investors from high-demand countries that are subject to cutoff dates may not file both forms at the same time. Since India is at risk of cutoff dates being imposed in the near future, Indian nationals with H1-B visas who are planning on investing in an EB-5 project should not delay in contacting an immigration attorney to begin the process.

Expedited EB-5 projects are also a good option for H1-B and E-2 visa holders. These projects allow investors the benefit from decreased processing times for I-526 petitions. These typically offer the most benefit to investors who are currently residing outside of the United States, as they would be able to relocate within a matter of months, rather than waiting years for their conditional permanent resident status. It would be wise for investors to consider projects with the possibility of being granted expedited status.

The new changes to the EB-5 investment industry have the potential to increase the transparency and efficiency of the EB-5 visa process for all stakeholders. While investors stand to gain the most benefits, this extensive reform holds the promise of improving the industry as a whole. EB5AN is always available to provide guidance on the process.

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What is Expedited EB-5 Visa Processing?

What is Expedited EB-5 Visa Processing?

For foreign nationals with plans to make the United States their new home, the EB-5 investment program has been a historically safe option. Contrary to other, riskier options, the EB-5 investment program has proven to be a reliable and transparent means of achieving U.S. permanent resident status, not only for investors, but for their immediate family members as well.

One aspect of the EB5 investment program that has caused inconveniences is the lengthy processing times. United States Citizenship and Immigration Services (USCIS) has been known to take more than two years to process Form I-526 petitions. In contrast to other immigration pathways, two years may not seem like a long time. But for an investor who is eager to begin their life in the United States, or whose children are approaching the age limit to qualify under their parents’ EB-5 visa, the more efficiently their petition can be adjudicated, the better. In addition, investors’ projects are also at risk of having to make significant changes to their project should they run into unforeseen challenges. This is far more likely to occur with longer processing times.

Thankfully, project developers have the option to significantly decrease processing times. USCIS offers expedited status for projects that meet certain criteria.

Projects of Interest to the U.S. Government

An EB-5 investment project that is granted expedited status can decrease its processing times from years to mere months. The general time period is anywhere from four to ten months, which is significantly better for the investors, and also for the project itself. Developers have faster access to the investment capital. In addition, the sooner the project can get underway, the sooner the economy can see the benefits of the project, including job creation.

How Does a Project Gain Expedited Status?

Expedited EB-5 investment projects are rare. To qualify for expedited status, the project must meet at least one of several specific criteria. The most prominent criterion is that the project must be one that is of urgent interest to the U.S. government. Examples of such projects include a new housing development for displaced families or an addiction treatment center to combat the opioid crisis.

Why Should Investors Consider Expedited EB-5 Projects?

Very few projects are granted expedited status. Foreign nationals who are presented with the opportunity to invest in one should certainly consider it—expedited processing could allow investors and their families to be granted U.S. permanent resident status far sooner.

Expedited EB-5 investment projects are a great opportunity, but also carry a greater financial and immigration risk for investors. Foreign nationals who plan to invest in an expedited project should begin the process as soon as possible, contact an immigration attorney and do their due diligence to find the best direct investment project for them.

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Behring Companies Takes Legal Action in an Attempt to Force the Reauthorization of the Regional Center Program

The EB - 5 Visa is an Excellent Option for Canadian Citizens Looking to Immigrate

The regional center program, formerly the most common EB-5 investment model, has been defunct since June 2021. As a result, many investors have been unable to continue the EB-5 visa process, with no guarantees regarding if or when the program will be reauthorized. In an effort to force the program’s reauthorization, Behring Companies filed a lawsuit against United States Citizenship and Immigration Services (USCIS), the Department of State (DOS), and the Department of Homeland Security (DHS). If successful, these government agencies will be forced to process I-526 petitions from regional center investors, which have been paused since the summer of 2021 and to reauthorize the regional center model.

Behring has a track record of success in taking legal action against government agencies related to the EB-5 industry. In June 2021, the company won a court case that repealed the EB-5 Modernization Rule, which lowered the minimum EB5 investment thresholds back to $500,000. As of February 2022, the court’s decision in that case still stands.

The Urgency Behind Reauthorizing the Regional Center Program

The regional center EB-5 investment model has many stakeholders, from investors and their families to business owners, immigration attorneys and more. As a result of the program’s suspension, which as of February 2022 has gone on for eight months, all of these stakeholders have faced serious inconveniences. The regional center program is subject to frequent reauthorization and has experienced a very brief lapse before, which led all stakeholders to believe that this suspension would be resolved quickly. However, since reauthorization is still pending, investors haven’t been able to continue in their EB-5 investment visa process, regional center projects have been put completely on hold, and billions of dollars may be at risk.

Behring’s lawsuit is representative of the feelings of the thousands of investors and other stakeholders who simply want to have their I-526 petitions adjudicated and be able to move on from this challenging time.

There is hope that the regional center program will be reauthorized as early as March 11, 2022. What the program really needs is permanent reauthorization, but it is certainly in the best interest of everyone in the industry for the program to receive at least temporary reauthorization as quickly as possible.

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The EB-5 Visa Is An Excellent Option For Canadian Citizens Looking To Immigrate

The EB-5 Investment Program is a great option for foreign nationals who are planning to relocate to the United States. In the decades since its creation, the program has helped thousands of investors and their families gain U.S. permanent residency.

With its unique advantages and business opportunities, the EB-5 program offers a gateway to permanent residency for qualified investors and their families. It also allows them to invest in the thriving U.S. economy.

If you’re Canadian and wondering whether the EB-5 program is right for you, this article can help you understand what it’s all about. In it, we discuss why the EB-5 visa is such an excellent immigration opportunity, and everything you need to know to apply successfully.

Why Are Canadians Moving to the United States?

Although Canada has historically been a country with a very high quality of life, many of its most attractive characteristics have faced challenges in recent years. This has led to a rise in the number of Canadians looking to move to the U.S. to secure a brighter future for their families.

Many students also move to the U.S. and account for more than one million of the international learners currently enrolled in schools. To add to this, the U.S. is a popular choice among foreign workers who can obtain temporary employment through H-1B visas.

Data from the Migration Policy Institute shows that many Canadians have moved to the U.S. for a better quality of life. Over 95% of Canadian immigrants have access to healthcare in America, and around 65% of those who move to the U.S. are able to find full-time employment.

Canadians may also consider moving to the U.S. because of its lower taxation rate. Data shows that, in 2021, as much as $14,493 per capita was collected for tax in Canada, whereas only $11,365 per capita was collected in the U.S.

There are currently more than 800,000 Canadians living and working in the United States, making up around 60% of immigrants in this country. Of those, around 30% have settled in California and Florida, two states known for their excellent living conditions and work opportunities.

Why Is the EB-5 Program a Great Option for Canadians?

The EB-5 Immigrant Investor Program is an appealing investment opportunity for Canadians looking to immigrate to the United States. With the potential to obtain citizenship, the program offers long-term residency stability and access to various benefits in a strong economic environment.

Unlike many other immigration pathways, the EB-5 program allows participants to bypass many of the complexities foreign nationals face when they want to secure permanent residency. With the EB-5 program, investors won’t have to worry about securing employer sponsorship or adhering to strict travel regulations to maintain their residency status.

The program allows foreign nationals to become business owners by investing in EB-5-approved projects. Not only do these projects promote economic growth, but they also give investors a great opportunity to expand their investment portfolios. Investors can also live and work anywhere in the country, including in any of the nine states that don’t require income taxes.

Brief overview EB-5 program

The EB-5 Immigrant Investor Program is run by the United States Citizenship and Immigration Services (USCIS) and provides an opportunity for foreign investors to obtain permanent residency in the country.

The program requires applicants to make a qualifying investment of at least $800,000 into a new commercial enterprise (NCE) if the NCE is located in a targeted employment area (TEA), or $1,050,000 if it’s not. An NCE is an entity designed to create and maintain at least 10 jobs for full-time U.S. workers.

Investors can also choose to invest money through the EB-5 regional center program—largely because of new project regulations that were approved in 2022—which offers different job creation opportunities within the project.

Certain EB-5 program requirements are a bit more flexible when you make an investment via a regional center. For example, investing in a regional center allows both indirect and direct jobs to be counted towards the required total of 10. If you invest directly in an NCE, you can only count direct jobs.

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The advantages of the EB-5 Investment Program for Canadians

Applying for U.S. citizenship through the EB-5 program has various advantages for Canadian investors:

  • Faster pathway to obtaining a Green Card: The EB-5 program is generally considered as one of the fastest ways to gain permanent residence in the U.S., because it’s not restricted to visa limitations. Some immigration categories only allow for a certain number of visas to be issued per year, often causing thousands of applicants to be rejected. Of the 700 EB-5 visas available annually for Canadians, only around 35 are claimed, making it a non-competitive environment.
  • No required visa sponsors: An EB-5 investor and their dependent family members are automatically eligible for a Green Card and won’t have to secure employment or educational sponsorship first.
  • Lucrative investment opportunities: NCEs in the U.S. can be highly profitable. U.S. economic development is one of the largest and most diverse in the world, making it a great option for investors.
  • Access to American education: EB-5 investors’ children can attend public school in the U.S. for free. As permanent residents, they will also have a chance to be accepted into various top-rated colleges and universities at a lower tuition rate.
  • Potential for U.S. citizenship: Obtaining citizenship through the EB-5 program is one of the easiest ways to secure your future in the United States. With this program, you can apply for citizenship after five years of receiving your permanent resident status.

Requirements for the EB-5 Investor Visa Program

There are a number of requirements that EB-5 applicants must meet for their applications to be successful. These include:

  • Making the required capital investment into an approved entity in the United States
  • Demonstrating that this investment will create and maintain at least 10 full-time jobs
  • Provide evidence that the invested capital was obtained lawfully. This evidence can include financial or bank statements
  • File the correct forms and supporting documentation

It’s important to note that this isn’t an exhaustive list, and each requirement has many steps that you need to fulfill. These can be tricky to navigate, so it’s recommended to make use of an immigration lawyer to help you.

Key Point: EB-5 Visas vs. E-2 Visas

Canadian foreign nationals may also consider the E-2 visa for treaty investors. This is an employment-based visa that allows the majority of immigrant investors from treaty nations to enter the United States for business purposes.

Similar to the EB-5 visa, E-2 visas also allow an investor’s immediate family members to receive their Green Cards. However, you’ll have to renew your E-2 visa every two years, whereas the EB-5 visa allows you to apply for citizenship after five years if you’ve met the necessary requirements.

What Is the Application Process for the EB-5 Program?

The application process for the EB-5 program involves several key steps that you must follow to have your documents approved. This process is outlined below.:

  1. Determine your eligibility: Potential applicants must ensure that they meet certain eligibility criteria, which include making the necessary investments and fulfilling other program requirements.
  2. Select a sustainable EB-5 project: Investors typically choose a project that aligns with their business investment goals and risk tolerance.
  3. Make the qualifying investment: The minimum investment amount varies depending on whether you put money into a TEA or non-TEA project. For non-TEA projects, the minimum amount is $1,050,000, and for TEA projects, it’s $800,000.
  4. File Form I-526, Immigrant Petition by Regional Center Investor: Applicants must file this form to demonstrate their eligibility and provide details of their investment to USCIS.
  5. Obtain conditional permanent resident status: If your Form I-526 petition is approved, you and your family members can apply for conditional permanent residency in the United States. This status is valid for two years.
  6. File Form I-829, Petition by Entrepreneur to Remove Conditions: Before the end of your two-year residency period, you must file Form I-829 to request that any conditions placed on your status be removed.
  7. Obtain permanent resident status: If your Form I-829 petition is approved, you and your family can obtain permanent residency. After five years, you can apply for citizenship.

How long does it take to get an EB-5 visa?

The processing times for an EB-5 visa can vary depending on the complexity of your application, changes in immigration policies, and the current workload of the USCIS offices.

Recent investors in rural TEA projects have obtained I-526 approval in as little as 11 months through priority processing.

Once you have filed your application, you’ll be issued with a case number that you can use to track its progress. USCIS will also upload any updates or requests for evidence (RFE) under this case number, so it’s important to check their website regularly to ensure you don’t miss anything important.

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Choose the Right Investment Project with EB5AN

It is essential for foreign nationals to seek the help of an immigration attorney to guide them throughout the EB-5 investment process and ensure they follow the strict regulations set out by USCIS. This gives them the best chance to have their application approved.

There may also be significant changes in the future for Canada, which makes this the right time to consider immigrating. The EB-5 investment visa is a good opportunity for Canadian citizens to relocate and start fresh in the United States.

To learn more about finding a qualifying investment project and other information about the EB-5 program, reach out to EB5AN.

Don’t Delay Your Future in the U.S.

The EB-5 visa program and application process can be challenging for individuals to navigate while ensuring they meet all its specific requirements. That’s why EB5AN is here to help. EB5AN has over a decade of EB-5 experience, successfully guiding more than 2000 families from over 40 countries through the project development and investment program.

With a nationwide network of USCIS-approved regional centers that covers more than 30 states and territories and a 100% petition approval rate, EB5AN is well-equipped to streamline your EB-5 visa investment process.

For more information on how our experienced team can help you obtain permanent residency through the EB-5 program, contact EB5AN today.