Given that the EB-5 Immigrant Investor Program is designed to bestow U.S. permanent residency rights upon applicants in exchange for a successful EB-5 investment in a qualifying project, U.S. citizens are ineligible to participate. Foreign nationals residing in the United States on other visas may also overlook the program, since they’ve already attained residency rights. But temporary U.S. residents are just as welcome to participate in the popular residency-by-investment program as foreign nationals living overseas, and if they hope to make the United States their permanent home, an EB5 investment is a thoroughly wise investment.

The Benefits of Permanent Residency over Temporary Status

Though millions of foreign nationals dream of living in the United States, the dream is unattainable for most. Immigration is difficult, and even those who secure U.S. visas are only granted a temporary stay. The United States doles out thousands of H-1B employment visas and F-1 student visas each year, but both come with stringent restrictions on the activities the visa holder can undertake during their stay, and both are temporary, nonimmigrant visas, obliging the foreign national to return to their home country when their visa expires. Indeed, most immigrants to the United States can only stay temporarily, and depending on their visa, they may be barred from taking on employment, educational opportunities, or making multiple entries into the United States.

A permanent resident, conversely, enjoys most of the same rights and freedoms as U.S. citizens. A green card holder can live, work, and study anywhere in the 50 states without restriction. They can access the world-class health facilities that the United States boasts, they can more easily gain admission to world-renowned U.S. universities, and they may even be eligible for in-state tuition rates, which can generate thousands of dollars in savings. Upon retirement, they can cash in on their pension benefits both from overseas and from the United States, and they may qualify for Medicare and other Social Security benefits.

Making an EB-5 Investment from within the United States

If a foreign national is already residing in the United States on a different visa, be it an H-1B, an F-1, or anything else, they have the option of making an EB-5 investment and obtaining a green card. With a green card, the restrictions around employment and education fall away, and they can live indefinitely anywhere in the United States. Their immediate family members—spouse and unmarried children younger than 21—are eligible to receive green cards alongside them.

An example is an H-1B worker. H-1B visa holders may have an opportunity to obtain permanent residency, but it could take more than a decade, and they would be subject to harsh employment restrictions and visa regulations for the entire duration. With an EB5 investment, an H-1B visa holder could instead receive their green card in a few years, securing permanent U.S. residency rights to confidently settle down in the United States.

The process of making an EB-5 investment from inside the United States is essentially no different from the process for overseas investors, although domestic EB-5 investors can more easily travel to the site of their project for an in-person inspection. An investor, domestic or overseas, must select a qualifying EB-5 project and commit the minimum required EB5 investment amount to it—either $900,000, if the project is in a targeted employment area (TEA), or $1.8 million if it is not. The investor must then compile an I-526 petition, in which they must document the lawful sources of their EB-5 investment capital, as well as justify the TEA status of their project, if they are investing the lower amount of $900,000. Throughout the investment period, the investor must keep their investment capital at risk and, at the end of their two-year conditional permanent residency period, prove that their EB5 investment created at least 10 new full-time jobs for U.S. workers.

Whether an investor lives in the United States or another country, they have two choices for their EB-5 investment: direct or via an EB-5 regional center. The regional center route is the more popular option, as it allows investors to benefit from the extensive experience and expertise of the regional center operators and relaxes the job creation requirements by allowing indirect and induced jobs to count toward the 10 necessary jobs.

Adjusting Status to EB-5

After a domestic EB-5 investor’s I-526 petition is approved, they may file Form I-485 with United States Citizenship and Immigration Services (USCIS) to adjust their status from their nonimmigrant visa to an EB-5 green card. This is a much quicker and easier process than what overseas investors face—EB-5 applicants filing from abroad must submit a DS-260 to the U.S. embassy or consulate in their country and undertake a visa interview before receiving their EB-5 visa. Some domestic applicants adjusting their status may also have to undertake a visa interview, but it’s not required in all cases.

It can take some time for USCIS to process an I-485 petition to adjust immigration status, but domestic EB-5 investors have options to increase their freedom while they wait. By filing an I-131 petition, a domestic EB-5 investor can obtain authorization to travel internationally and return to the United States while their I-485 is pending. Similarly, an I-765 petition allows an investor to obtain employment authorization, enabling them to work freely in the United States as they await their permanent resident card. An I-765 petition may not be necessary for H-1B visa holders who plan to maintain their job, but it may be indispensable to an investor who graduates from a U.S. college on an F-1 visa.

All around the world, foreign nationals rely on the EB-5 Immigrant Investor Program to pursue a new, promising life in the United States for themselves and their immediate family members. U.S. permanent resident status for an EB-5 investor and their family offers invaluable benefits, such as facilitated enrollment at U.S. colleges, state-of-the-art health facilities, and the ability to live, work, and study freely anywhere in the United States, and all that is available through a one-time, largely passive EB-5 investment.

EB-5 investors can opt to either funnel their EB-5 investment capital directly into the new commercial enterprise (NCE) or work with an EB-5 regional center to pool their capital together with other investors and inject it into larger projects. Making an EB5 investment through a regional center offers a number of advantages that render it by far the preferred path of EB-5 investors. For example, not only can regional center investors leverage the deep EB-5 knowledge and expertise of the regional center operators, but they can also generally satisfy the managerial requirements simply by signing on as a limited partner, and they can include indirect and induced jobs toward the job creation requirement.

Since an EB-5 regional center is a commercial entity, it will require fees from EB-5 investors. The freedom and facilitated EB5 investment process that regional centers offer is well worth spending the extra funds, but this also makes it crucial to conduct careful due diligence before selecting a regional center. Making an EB-5 investment through a regional center is a major step—but with proper research, it could be one of the best investments a foreign national makes in their future.

Points to Consider When Choosing a Regional Center

EB-5 regional centers are commercial entities approved by United States Citizenship and Immigration Services (USCIS) to manage and facilitate EB5 investments. They gain approval for a particular geographical area, such as a state, and may sponsor projects within that area. Most regional areas primarily sponsor projects that qualify for targeted employment area (TEA) designation, as TEA status allows investors to invest half the minimum EB-5 investment amount (i.e., $900,000 instead of $1.8 million).

When looking for a regional center to invest through, a prospective EB-5 investor should look into the backgrounds and experience of its managers. Checking the track record of the regional center is also particularly important—how many projects has the regional center sponsored in the past? How many investors have received I-526 petition approval? How many have received I-829 petition approval? How many previous investors have had their investment capital returned at the end of the investment term?

There are certain questions an investor should also ask when considering a specific EB-5 project sponsored by a prospective regional center—has the regional center worked with this project developer before? Have they sponsored any similar projects before? Don’t forget to look into the project developer, too, examining their track record, experience, management, and more.

Reach out to the regional center and ask all the questions you want to their team. If the regional center is reputable, they’ll be happy to answer your questions and provide any documents you might request to determine their legitimacy.

Resources for Researching Regional Centers

An EB5 investment is a major journey, and it’s important that investors undertake all the necessary precautions prior to jumping into an EB-5 investment. Conducting all regional center–related due diligence at the regional center itself isn’t sufficient—investors should branch out and consult third-party resources as well.

USCIS

If an EB-5 regional center doesn’t have USCIS approval, it isn’t a regional center. Verify whether a prospective regional center is approved by USCIS by checking out USCIS’s comprehensive list of approved regional centers.

Better Business Bureau

The Better Business Bureau can also be a resource for prospective EB-5 investors looking for the right regional center. Simply search the name of a regional center to see its rating as well as comments and complaints from clients.

Local Departments of Buildings

While local Department of Buildings can’t provide insight into a regional center, they can help an investor determine whether a specific project is suitable for EB5 investment. The majority of regional centers work with commercial real estate projects, so an investor can simply locate the address of the development project (or ask the regional center team for it) and plug it into the Department of Building website for that region. These websites can offer information such as the owner of the property, the general contractor for the development project, and any permits or violations that have been issued.

We’ve put together a list of the Department of Buildings websites for some of the biggest U.S. cities:

• New York
• Los Angeles
• Chicago
• San Francisco
• Atlanta
• Miami

Participants in the EB-5 Immigrant Investor Program are often concerned about United States Citizenship and Immigration Services (USCIS) processing times—and for good reason. Their immigration plans, and those of their immediate family members, are effectively on hold until their permanent residency status is confirmed.

Unfortunately, the estimated processing time ranges provided on USCIS’ official government website can be misleading and difficult to understand. The time it takes to process applications can fluctuate depending on factors like the number of applicants and service center productivity. It’s normal to have to wait two to three years between making a qualifying EB-5 investment and receiving conditional permanent residency status.

A better way to assess how long you’ll have to wait for your petition to be accepted is by looking at the historical processing data. These provide you with median processing times for each visa form for each year.

This article explains what factors affect form processing times, how USCIS reports processing data, and how to reduce your form processing time.

What Impacts USCIS Productivity?

The productivity of USCIS and the Investor Program Office (IPO) tends to fluctuate based on leadership changes. There was a particularly notable decline in 2019 and 2020 under the leadership of Sarah Kendall.

The number of EB-5 petitions submitted by investors and the resources available to USCIS processing centers also impact the organization’s productivity.

Thankfully, EB-5 processing times are beginning to stabilize. This is down to two main factors:

• USCIS is back to full strength after the COVID-19 pandemic and is working through the subsequent backlog.
• The Reform and Integrity Act of 2022 introduced several measures to allow new applications to be processed quickly.

How Does USCIS Report Processing Times?

USCIS publishes two figures that indicate processing times:

• The time it took to process 80% of applications over the last six months. The latest figure for any visa type can be found on the official government Check Case Processing Times page. This figure isn’t particularly helpful, as most investors will have their petitions processed much faster. However, it ensures investors have realistic expectations of how long their applications may take to process.
• USCIS historical processing times. USCIS publishes historic data on the median processing time over the course of a year for each form type. The median represents the midpoint of processing times, with 50% of applications processed faster and 50% processed slower than the median. The figure for the current year is based on the data collected thus far.

The two figures combined give some indication of how long investors may have to wait. Here’s the latest processing data, as of November 2023:

*The data for Form I-924 is from 2021. At the time of writing this article, no new data was available.

When reading processing data, it’s worth considering that:

• Around 50% of investors are likely to have their forms processed quicker than the median processing time
• Around 20% are likely to have to wait longer
• Extreme outliers can increase the “time it took to process 80% of applications” figure

The graph from 2019 below helps to illustrate this. It shows USCIS I-829 processing times for Q1 of that year. According to historical data, the median processing time for 2019 was 25.9 months. However, we can see that a large number of cases were completed in a shorter amount of time.

It also shows that one petition took up to 78 months to process. This is likely to have been a complex case. For example, there may have been questions over whether the applicant posed a national security risk.

I-526 and I-829 processing times are getting longer

Unfortunately, median processing times for Forms I-526 and I-829 have increased in recent years. I-485 normal processing times have remained roughly consistent.

The increase in waiting times for Forms I-526 and I-829 isn’t the result of USCIS not processing petitions quickly. In fact, earlier this year, USCIS reported an 83% increase in processing efficiency for I-526E and I-526. The cause of the problem is more likely that the number of new investors filing an application petition or request increased in the last year.

How Fast Is Form I-526E Processed?

USCIS has yet to release specific data on I-526E processing times. However, we’ve seen I-526E petitions for projects in rural TEAs gaining approval in less than three months. In our experience, most of these petitions take an average of six months.

This suggests that I-526E petitions will be processed quicker than standard I-526 forms. Note that there may still be a processing delay if problems with your application arise.

As mentioned above, investors in rural TEA projects may be able to get I-526E approval in less than 12 months, as they now qualify for priority petition processing under the RIA.

Also, while investors from China and India were previously forced to experience significant delays due to their country’s backlog of EB-5 applications, they can now avoid these delays by investing in a TEA project.

What Causes Slow Processing Times?

Slow processing times could be due to issues with your petition or at USCIS, including:

• High numbers of petitions being submitted, meaning USCIS takes longer to process new applications
• A visa backlog experienced by the investor’s home country
• The investor hasn’t filled in their form correctly
• The investor has broken an immigration regulation or the law
• USCIS discovered evidence that the investor represents a national security concern

How to Speed Up Your Form Processing Time

EB-5 investors have very little control over USCIS processing times. There are, however, things you can do to speed up the process:

File Form I-829 at the right time

Form I-829 should be filed within 90 days before your two-year conditional Green Card expires. If you leave it until after your conditional residency expires, your ability to gain a permanent residency card will be jeopardized. It will also be rejected if you file it more than 90 days before the expiry date.

Fill all documentation and evidence correctly

To get each petition approved, you need to fill it out in full and provide concrete evidence to support it. For example, Form I-829 requires evidence that your investment has created 10 full-time jobs. Gaps in documentation or poor evidence could lead to your form being rejected or slow down its processing time.

Work with a regional center

There are several ways that working with a regional center will help speed up processing time for EB-5 forms. Examples include:

• Exemplar projects: Regional centers can submit exemplar project proposals. Once an exemplar is approved by USCIS, the project section of I-526E forms for applicants investing in that project will automatically be accepted.
• Support with forms: Regional centers work closely with USCIS, therefore, they know what a good petition looks like. They can help investors fill out forms and provide the right evidence.
• Documenting job creation data: Regional centers document job creation data on behalf of their investors.

Expedite your petition

You can ask for some forms to be expedited. However, you need to have a specific, compelling reason. These include:

• Severe financial loss
• Humanitarian or emergency reasons
• A non-profit organization has requested it because it will benefit the United States’ cultural or social interests
• It’s in the interest of the United States government
• Errors made by USCIS

USCIS Processing Times: Conclusions

The EB-5 Immigrant Investor Program is an ideal way for foreign nationals to gain a Green Card by investing in a USCIS-approved project. But long processing times can be a worry—especially when it affects your family’s immigration plans.

Our advice is to assume that your application could be delayed when making your immigration plans. This way, you and your family will have a plan in place if complications arise. Once you gain permanent residency status, you can apply to become a U.S. citizen by submitting an application for naturalization.

For more information on EB-5 processing or to get help filing your petitions, get in touch with EB5AN. We’ve helped hundreds of EB-5 investors to gain permanent residency status in the U.S. Book a free consultation and discover how we can do the same for you.

One of the key issues that has plagued the EB-5 Immigrant Investor Program in the late 2010s has been the emergence—and continued deepening—of EB-5 backlogs. Backlogs are not unique to the EB-5 program—rather, they’re due to a United States Citizenship and Immigration Services (USCIS) policy that restricts annual visa allocation based on country of citizenship. All countries have equal limits, regardless of size or demand, and when the quota is reached for nationals of a given country, pending applicants must wait until the next fiscal year. Regarding EB-5 investments, the biggest countries are China and Vietnam, which, as of June 2021, both face backlogs.

The Chinese backlog surfaced in 2014, when the EB-5 was gaining increasing traction in China and the rest of the world. China has long dominated the program, many years accounting for around 80% of all investors. Unfortunately for applicants of Chinese nationality, this has resulted in exceedingly long wait times, with new EB-5 investment participants from China told to expect wait times of seven or more years as of June 2021.

In 2018, after months of speculation, Vietnam joined their northern neighbors in USCIS’s monthly Visa Bulletin. However, while EB-5 demand in Vietnam is evidently strong, it doesn’t compare to the spiraling wait times faced by Chinese EB5 investment participants. Vietnamese investors have certainly been disadvantaged compared to those from most other countries, but the Vietnamese backlog has never reached the depths of the Chinese one. And now, according to Charles Oppenheim, the chief of the Visa Control and Reporting Division of the U.S. Department of State, those who have made EB-5 investments from Vietnam may finally see the backlog clear up by September 2021.

The Jump in the Vietnamese Final Action Date

Considering the dismal movement in final action dates throughout 2020 and now 2021, the shock announcement has come as a surprise to many Vietnamese investors. For much of this period, the Vietnamese final action date, which stood at April 15, 2018, in the June 2021 Visa Bulletin, has only been moving forward slowly, with two months constituting a large advancement. Compared to the Chinese final action date, which had failed to advance for almost a year, the situation was rosy, but Vietnamese investors still expected a long road ahead of them to complete their EB5 investment journey.

And then, the July 2021 Visa Bulletin was released.

The Chinese final action date advanced by three weeks, but that small step forward was so overshadowed by the massive leap of the Vietnamese date that it was hardly news. In contrast, the Vietnamese final action date jumped almost two entire years to April 1, 2020. In a landscape of processing inefficiencies, worldwide public shutdowns, and remarkably slow Visa Bulletin action, this jump has come as a pleasant shock. And officials are hinting at even better news for Vietnamese investors going forward.

The Factors Behind the Vietnamese Final Action Date Prediction

Considering the shocking leap of Vietnamese final action date in the July 2021 Visa Bulletin, the idea of Vietnam achieving “current” status by September suddenly doesn’t seem so unrealistic. And it wouldn’t be the first time a country had escaped an EB-5 visa backlog—India did so in July 2020.

Vietnam’s leap forward may be attributable to two key factors. The first is USCIS’s slow processing of I-526 petitions—indeed, slowing the addition of new Vietnamese applicants waiting for visa availability helps shrink the backlog. While it may sound counter-intuitive, this is not necessarily a bad thing for the Vietnamese investors with pending I-526 petitions, either. With Vietnam stuck in a backlog, these investors will have to wait for their EB-5 visas either way, but at least if they have a pending I-526 petition, their children will be protected from aging out. If they’re simply awaiting visa availability, their children aren’t protected.

The other factor influencing Vietnam’s move is the processing abilities of the U.S. embassy in Ho Chi Minh City. In 2020, as COVID-19 ravaged the world, consular processing was shut down broadly. In 2021, as the world cautiously reopens, different countries are at different stages, and not all U.S. consulates are at equal processing capacity. Ho Chi Minh City has been pumping out the EB-5 visas to Vietnamese nationals, issuing more than 540 by April 2021 and a staggering 320 just in March 2021 alone.

In China and India, the situation is different. The consulates in Guangzhou and Mumbai, respectively, have hardly processed any EB-5 visas for people from their countries who have made an EB-5 investment. In fact, between October 2020 and April 2021, only 14 Chinese nationals and 29 Indian nationals have been recorded as being issued consular EB-5 visas.

In light of this situation, it’s likely that Vietnam will be the only country to hit the FY2021 per-country visa cap of 1,302 visas—nearly double the limit in previous years. That will likely allow the country to clear up its backlog, as predicted by Charles Oppenheim, and hopefully Vietnam will stay out of the Visa Bulletin in the future. However, even if EB5 investment participants from Vietnam face another backlog in 2022, it may not last long. The rollover of visas from the family-based visa categories in FY2022 is predicted to result in more than 20,000 visas for the EB-5 program, enabling each country to claim up to 1,441 visas. This spike could also help drive down the Chinese backlog, as long as Guangzhou starts upping its processing capacity.

Those in the EB-5 investment community have faced their fair share of challenges throughout the late 2010s and into the 2020s, including a global pandemic, but as the world begins to open up after COVID-19, the EB-5 world is being confronted with more hardships. Most pressingly, the looming sunset date of June 30, 2021, on which the EB-5 Regional Center Program has been slated to expire, is hurtling toward us, and many see EB-5 reform as the only path to salvation. Another problem in the EB-5 investment program—one that has been around since November 2019—is the new regulations enacted with the Modernization Rule, which restricted the definition of targeted employment areas (TEAs) and increased the minimum required investment amounts by 80%.

Indeed, these new rules have not been popular among EB5 investment stakeholders such as investors, developers, and regional center operators. But while most adjusted—by either making a larger EB-5 investment, tweaking the location of their project, or shifting their business model to accommodate the legislative changes—the Behring Regional Center in California and Florida EB5 Investments LLC in Florida chose to file lawsuits.

Lawsuits Against the EB-5 Modernization Rule

Filing suit simply because new regulations invalidate your business model will hardly get a regional center anywhere, especially when so many of their peers have adjusted to the changes and continue to run successful businesses. But the lawsuits do have a legitimate legal grounding. They target what the plaintiffs see as illegal finalization of the regulations, requesting the courts to vacate the rules and allow the EB-5 program to revert back to the former legislation.

When Florida EB5 Investments LLC took their case to court, they lost their motion for injunctive relief, which would halt the regulations, at least until a decision was reached on the case. As of June 2021, the courts are still adjudicating the regional center’s claim of “illegal finalization,” but until a decision is reached, the rules will stay in place.

So the Behring Regional Center jumped in, filing the same lawsuit in a different court. This time, the court was more open to the plaintiff’s arguments. The court did not grant injunctive relief during the adjudication period, but the judge did, with the plaintiff’s permission, switched the motion to a summary judgment. Under these circumstances, whatever the judge rules determines the future of the Modernization Rule regulations: if the government wins, they stay, but if the plaintiff wins, they go. And with the court requesting the government to provide suggestions for possible remedies, many in the EB-5 investment world jumped to conclusions about how the judge would rule. Rumors abounded that the Modernization Rule regulations would be overturned and the $500,000 and $1,000,000 EB5 investment amounts would be back.

Mayorkas’s Interjection

Unfortunately, the case is not that simple. For one thing, there has yet to be an official ruling, and legal cases tend not to be quick. For another, the government is clearly in favor of the updated regulations.

The plaintiff’s argument rests on the idea that the Department of Homeland Security (DHS) did not have a Senate-confirmed secretary at the time the legislation was ratified. The rationale is that the person who ratified the regulations was an “acting secretary,” not a Senate-confirmed one, and the law states that actions taken by an acting secretary may not be ratified. The argument further claims that at the time of ratification, the “acting secretary” position was not filled by the person who was next in line to fill it, invalidating the position entirely.

So, what did the newly Senate-confirmed head of DHS, Alejandro Mayorkas, do in response to the lawsuit? He simply ratified the regulations, throwing an unexpected wrench into the case. And in response to this sudden plot twist, the Behring Regional Center’s lawyers, in turn, filed a pleading in which they claimed the government cannot protect the regulations retroactively to shut down the lawsuit. As of June 16, 2021, the court has yet to issue a ruling on this pleading.

The EB-5 Regional Center Program Reauthorization Conundrum

While many EB-5 investment stakeholders would be thrilled to see the Modernization Rule regulations overturned, most are focusing their attention on the looming sunset date of the EB-5 Regional Center Program. As the window to act gets ever smaller, the EB-5 community is increasingly embracing the EB-5 Reform and Integrity Act—as imperfect as it may be—as a key tool to procure reauthorization for the regional center program, the lifeblood of the EB-5 program. And that’s why the Behring Regional Center’s controversial lawsuit seems so strange—under circumstances where the very regional center program itself is under existential threat, this particular regional center continues to push forward with a lawsuit to overturn previously enacted rules. The lawsuit would have no impact on the standing of EB-5 Regional Center Program reauthorization—the efforts seem misplaced during this period of EB-5 crisis.

On June 22, 2021, Judge Jacqueline Scott Corley of the U.S. District Court of the Northern District of California (the “Court”) issued an order granting summary judgment in Plaintiff’s favor in the matter of Behring Regional Center LLC V. Chad Wolf, et al.

In summary, Plaintiff sought both (1) a declaratory judgment that the Final EB-5 Rule (changing the minimum investment amount from $500K to $900K among other changes) which went into effect on November 21, 2019, is without force and effect, as well as (2) an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the APA’s rule-making process.

The Court granted relief on the first item and issued remand with vacatur – essentially invalidating the Final EB-5 Rule. However, the Court declined to grant Plaintiff an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the Administrative Procedure Act’s (APA) rulemaking process. Therefore, the Court has set aside the Final EB-5 Rule and has remanded the matter back to the agency (Department of Homeland Security).

Although the Court did invalidate the Final EB-5 Rule, it is highly likely that Secretary Mayorkas will take action to reinstate the Final EB-5 Rule as the Court declined to grant Plaintiff an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the APA’s rule-making process.

To view the full order granting summary judgment, please click here.

“We are very pleased by the Judge’s ruling,” said Sam Silverman, managing partner of EB5AN. “Many qualified and deserving foreign investors were excluded from the EB-5 program when DHS improperly increased the minimum investment amount. Our team is excited about this news and proud to offer Saltaire St. Petersburg Phase II (Loan) for immediate subscription at a reduced investment of $500,000. However, serious EB-5 investors need to act quickly because the window of opportunity is likely to be short, potentially closing on June 30, 2021, the current sunset date of the EB-5 regional center program.”

An administrative action by DHS Secretary Alejandro Mayorkas to reinstate the rule, or legislative action by the U.S. Congress, could return the minimum investment amount to $900,000 within days. Therefore, an unprecedented short period of time exists for foreign nationals seeking U.S. residency to invest at the reduced $500,000 investment threshold.

Saltaire St. Petersburg Phase II (Loan) is a low-risk EB-5 visa investment in a high-rise luxury condominium in downtown St. Petersburg, Florida. The project is being developed by KOLTER, one of the largest private real estate developers in the United States. Construction is underway and all project financing is in place, and over 75% of the condominium units are already sold with non-refundable cash deposits. An EB-5 visa investment in Saltaire St. Petersburg Phase II (Loan) is secured by a parent-entity repayment guaranty and all investors receive an I-526 early release guaranty.

Investors seeking additional information or needing to speak with an experienced EB-5 immigration attorney about immediately submitting an I-526 petition should send a message to info@eb5an.com.

It’s been a while since a monthly Visa Bulletin from United States Citizenship and Immigration Services (USCIS) has offered the EB-5 investment community good news of any magnitude. The three-week jump in the Chinese final action date in the June 2021 Visa Bulletin was good news, but only because the Chinese final action date hadn’t budged in close to a year before that. Under normal circumstances, a three-week move would hardly warrant celebration. The fact that predictions had assumed the Chinese final action date would not move until at least October 2021 did, however, make the advance more impressive.

The Chinese final action date moved ahead two months in the July 2021 Visa Bulletin, suggesting continued movement forward may once again become the norm for EB5 investment participants from China. However, this time, Vietnam has stolen China’s spotlight. Indeed, a two-month advancement pales in comparison to a two-year leap forward.

That’s right—two entire years. Unless the figure in the July 2021 Visa Bulletin is a typo, the final action date for EB-5 investment participants from Vietnam has sped ahead by an astonishing two years, taking the final action date from April 15, 2018, in the June 2021 Visa Bulletin to April 1, 2020, in the July 2021 bulletin. And if that weren’t enough of a shock, the chief of the Visa Control and Reporting Division of the U.S. Department of State has more good news for Vietnamese investors: he expects Vietnam to achieve “current” status by September 2021.

July 2021 Visa Bulletin, Chart A

In Chart A of the July 2021 Visa Bulletin, “01APR20” is printed clearly in the EB-5 row of the Vietnam column. Broken down, this means April 1, 2020. To Vietnamese EB-5 investors, who have been suffering from delays and long processing waits for three years, this may seem unbelievable, but there it is, clear as day. Effectively, any Vietnamese national who made an EB-5 investment between April 2018 and April 2020 is now eligible to receive their conditional U.S. green card and begin their life in the United States—with predictions of the door soon opening for the remainder of Vietnamese investors.

The Chinese final action date has also moved ahead, this time by two months. This is a higher pace than in the June 2021 bulletin, which saw the first movement in the Chinese date for close to a year. The EB5 investment community celebrated alongside Chinese investors when the final action date finally moved, and the July 2021 bulletin indicates that forward momentum may become the new normal for Chinese investors.

The final action dates for those who have made an EB5 investment through an EB-5 regional center stand out in the July 2021 bulletin—all values are “U.” “U” stands for “unauthorized,” with USCIS taking into account the uncertain status of the program going into July. The EB-5 Regional Center Program is set to expire on June 30, 2021, unless it secures reauthorization from Congress, and many EB-5 investment stakeholders fear reauthorization will be contingent on program reform. With less than two weeks to go, reform has still failed to be enacted, and the EB-5 community is growing increasingly anxious as the sunset date nears. Industry experts note that the U.S. government is unlikely to let such a valuable program expire permanently, but a temporary suspension could be in the cards, presenting investors with unwelcome delays in their EB-5 investment journey.

July 2021 Visa Bulletin, Chart B

Unfortunately, the movement in the EB-5 final action dates has not been reflected in the dates for filing. Chinese EB-5 investment participants have built up such a massive EB-5 backlog that many have to wait just to file their application for an EB-5 visa following I-526 petition approval. The Chinese date for filing has remained at December 15, 2015, for more than a year, and though changes in the date for filing will inevitably follow final action date progress, the momentum has clearly not been sufficient yet. Chinese investors waiting to file their EB-5 visa applications must continue to sit tight.

Interestingly, the regional center values in Chart B are not “U” for unauthorized but the same as those for direct EB-5 investors. While this is probably just an administrative oversight, hopefully it indicates a continued future for the EB-5 Regional Center Program.

Throughout the beginning of 2021, EB-5 investment participants have faced an uncertain battle for the continued authorization of the EB-5 Regional Center Program, through which more than 95% of EB5 investments are made. The EB-5 Immigrant Investor Program itself is a permanent government program, but the regional center program, which allows United States Citizenship and Immigration Services (USCIS) to designate commercial entities to sponsor EB-5 projects and pool together the EB-5 investment funds of multiple investors, remains a temporary program almost 30 years after its initial introduction. For EB-5 investors, who can take years to obtain their conditional permanent resident status, that’s a problem.

For most of the EB-5 Regional Center Program’s history, it has been bundled together with an omnibus government funding bill, which has guaranteed renewal. Thus, even though the regional center program was constantly facing expiration, the EB5 investment community generally had little to worry about. But in December 2020, Congress separated the popular regional center program from the funding bill that had always carried it along, leaving the program to fend for itself. With the sunset date of June 30, 2021, fast approaching, the EB5 investment community is pushing for EB-5 reform viewed as necessary to secure reauthorization for the ever-important regional center program. But the EB-5 Reform and Integrity Act, which many EB-5 stakeholders have rallied behind, is only a temporary solution.

The EB-5 Reform and Integrity Act

The EB-5 Reform and Integrity Act, introduced by Republican Senator Chuck Grassley and Democratic Senator Patrick Leahy, focuses, as the name suggests, on strengthening integrity measures in the EB-5 program to better weed out fraud and protect honest EB-5 investors, developers, and regional centers. It also includes provisions aimed at improving the overall usability of the program, such as shorter processing times for EB-5 investment petitions. Among the provisions is longer-term reauthorization for the EB-5 Regional Center Program, to the tune of five years. If passed, the EB-5 Reform and Integrity Act would reauthorize the program through 2026.

However, in the context of the EB-5 program, five years is short. If the regional center program is renewed for five years, Congress will soon be faced once again with an anxious EB5 investment community pushing for further reauthorization. It can take two to three years for USCIS to adjudicate an I-526 petition, and then, depending on an investor’s country of origin, it could take as many as 10 years to actually obtain conditional permanent residency. An investor—provided they are investing through a regional center, as most do—must be continuously wary of the EB-5 Regional Center Program’s authorization status until they receive their conditional green card, because expiration of the program could potentially destroy their dreams of a life in the United States.

What Would Happen If the Regional Center Program Expired?

What would happen if the regional center program expired? This is the question at the forefront of every EB-5 stakeholder’s mind as June 30, 2021, careens ever closer. At best, it would cause a temporary delay—although more delays are the last thing EB-5 investors need. At worst, it would nullify as many as 100,000 EB-5 investments, slashing the dreams of that many investors and their immediate family members.

The expiration of the EB-5 Regional Center Program would impact every regional center investor who has not yet obtained conditional permanent resident status in the United States. Thus, every investor with a pending I-526 petition would be affected, as well as the thousands of Chinese and Vietnamese applicants stuck in backlogs waiting for visa availability. At first, USCIS would likely suspend processing of these I-526 petitions and visas, holding out for retroactive legislation to reactivate the popular EB-5 investment route. But if that retroactive legislation did not ultimately come, USCIS would deny all pending I-526 petitions and revoke I-526 approval for the EB-5 investment participants who were waiting on EB-5 visa availability.

The result would be chaos—tens of thousands of investors, who had already deposited their $900,000 (if the project was in a targeted employment area, or TEA) or $1.8 million (if it was in a non-TEA) and fulfilled all the criteria that makes up a successful EB5 investment, would suddenly have their bright future taken away, through no fault of their own. Lawsuits would likely abound, but it’s uncertain what outcome they would come away with. Only investors who had already obtained conditional permanent resident status would be safe, and USCIS would continue to adjudicate I-829 petitions even for investors in regional centers.

The good news is that Congress is unlikely to let a program as lucrative as the EB-5 Regional Center Program permanently expire. After all, doing so would mean cutting off an important source of funding for thousands of U.S.-based projects. But until Congress makes the regional center program permanent, this uncertainty will plague the program, and Congress will always be faced with EB-5 stakeholders demanding permanent authorization. The program has already been around for nearly 30 years, and it’s helped funnel billions of dollars into the U.S. economy. It’s about time it was authorized permanently.

In the EB-5 Immigrant Investor Program, as in life, there are no guarantees. There are no steps an EB-5 investor can take in preparing their I-526 petition to guarantee that United States Citizenship and Immigration Services (USCIS) will approve. The majority of I-526 petitions are approved, so anyone who makes an EB-5 investment has a relatively high chance of gaining approval. However, an investment in one’s future in the United States is not something to leave to chance—by carefully preparing their I-526 petition, EB-5 investors can elevate their likelihood of I-526 petition approval.

What Does an I-526 Petition Entail?

Form I-526 is the first petition an EB-5 applicant files with USCIS after committing their EB5 investment funds to their chosen new commercial enterprise (NCE). Part of the petition asks for personal information about the investor and any accompanying family members and requires documents such as passports and driver’s licenses as supporting documentation.

Another portion of the I-526 petition focuses on the project in which the applicant has made their EB-5 investment. For this, the investor must obtain the relevant project documentation from the NCE or the EB-5 regional center through which they are investing. If the project has obtained exemplar status, the investor likely has nothing to worry about, unless there have been substantial material changes to the project.

If the EB-5 project is located in a targeted employment area (TEA), EB-5 investors must append an additional section to their I-526 petition package—data and documentation justifying the TEA designation of the project. If USCIS approves the TEA designation, the investor may make an EB-5 investment of $900,000, as opposed to the minimum $1.8 million required for non-TEA projects. If an investor is working with an EB-5 regional center, the regional center will generally help with the provision of TEA justification documents.

The final aspect of the I-526 petition is the most challenging and time-consuming—the source-of-funds documentation section. Investors must provide documentary evidence that their full EB5 investment amount derives from lawful sources and has been committed to their EB-5 project, as well as that any applicable taxes have been paid. The complexity of this task varies based on the source of funds and the country in which the capital was obtained, but in general, it’s more complicated than EB-5 investors realize—and it’s the most common reason for I-526 denial.

What Makes the Source-of-Funds Process So Complicated?

The source-of-funds requirement makes sense—the U.S. government wants to ensure that it’s funding its economy and the creation of new jobs for U.S. workers with legally obtained capital. But USCIS’s source-of-funds scrutiny goes fairly deep. For example, if a foreign national brought property and later sold it and used the resulting capital gains as EB-5 investment capital, simply presenting the deed of sale would be insufficient. They would also have to prove that they legally purchased the property in the first place, lawfully earned the seed capital to make that purchase, and paid all applicable property taxes on the asset.

Gifts and inheritance, which are by all means valid sources of EB5 investment capital, are similarly complicated. For a gift, the investor must provide a gift agreement that states the recipient is under no obligation to repay the sum to the donor, and the donor must provide source-of-funds documentation to prove that they obtained the capital lawfully. In the case of inheritance, the investor must show that they rightfully inherited the capital (or any relevant asset) and that the decedent earned the amount lawfully. The requirement to prove the lawful source of third-party funds even extends to loans from third-party entities other than well-established banks.

And it gets even more complicated. Using a currency swap entity? Investors from countries like Vietnam, China, India, and South Africa, which place limits on the amount of capital than can be transferred abroad, face obstacles simply in transferring their EB5 investment capital to the applicable escrow account in the United States, even if they can easily prove the legal sources of their funds. USCIS is aware of remittance limits in these and other countries and will require evidence from investors of how they legally bypassed the restrictions. Several options exist to circumnavigate remittance limits, but investors must always opt for a legal route.

How to Approach the Source-of-Funds Process

The first step any EB-5 investor should take toward the source-of-funds process is consulting with an experienced EB-5 immigration attorney, particularly one with extensive experience with investors from the same country. Experienced EB-5 immigration counsel is aware of both USCIS requirements and the challenges posed by particular countries, and they can go over an investor’s options and advise them regarding the easiest sources to use for their EB5 investment.

Depending on an investor’s source of funds, they may have to submit the following documents. Bear in mind that EB-5 capital may derive from any number of sources, as long as they are all appropriately documented.

• Bank statements
• Employment records
• Business accounting records
• Investment records
• Loan documents
• Tax returns
• Property deeds
• Sale-of-asset records
• Gift contracts

In some cases, USCIS will demand documentation of the full path of the funds from the source to the EB-5 project escrow account. For example, if an investor is using the capital gains earned from the sale of real estate for their EB-5 investment, they may have to provide the following documentation:

1. Evidence of the lawful sources of the seed capital to purchase the real estate asset (e.g., employment records, business accounting records, inheritance records)
2. The deed for the purchase of the real estate asset
3. The deed for the sale of the real estate asset
4. An appraisal evaluating the market value of the real estate asset
5. A bank statement showing the sale proceeds deposited into the investor’s foreign bank account

It’s important to note that some countries may not have stringent recordkeeping practices, which can complicate the source-of-funds documentation process, especially if the records date back decades. In such cases, it may be possible to have a local legal or tax expert produce a signed statement attesting to the impossibility of obtaining such records. USCIS evaluates source of funds on the basis that they are “more likely than not” lawful, so approval is possible even without irrefutable evidence of the EB5 investment capital’s lawful sources.

Another point to bear in mind is that insufficient source-of-funds documentation may result in a request for evidence (RFE) rather than a denial. If an investor receives an RFE, they have a limited window of time to collect and send any documentation that USCIS requests, and if USCIS is satisfied with the provided evidence, they will likely go on to approve the I-526 petition. If an investor is in a rush to file their I-526 petition—such as to prevent their child from aging out of EB-5 visa eligibility—they may submit insufficient source-of-funds documentation and prepare more rigorous documents for the later RFE.

Throughout the late 2010s, EB-5 investors and other stakeholders have grown wary of policy updates from United States Citizenship and Immigration Services (USCIS), which have often been negative—and applied retroactively. A case in point is the redeployment policy update that came in July 2020, which the immigration agency applied retroactively by officially terming it a “clarification,” not an update. Additionally, with about two years under the leadership of Sarah Kendall, productivity at the Immigrant Investor Program Office (IPO) has fallen significantly, with processing times skyrocketing and EB-5 investment participants growing increasingly disgruntled.

But changes in leadership may be turning the tides. Kendall left her post at the IPO in November 2020, and though the results of her successor, Nick Colucci, have yet to be seen, the EB5 investment community remains hopeful that the dark days of the Kendall reign are over. USCIS leadership is changing as well, with Biden’s nomination for the head of USCIS, Ur Maddou, promising to modernize the U.S. immigration system.

On June 9, 2021, USCIS came out with new policy updates, proving the pro-immigration rhetoric wasn’t mere talk. The modified policies are favorable to EB5 investment participants and are hopefully indicative of more changes to come down the road.

Clarifications for Expedited Processing Eligibility

In the late 2010s, speed has hardly come to mind when discussing EB-5 petition processing times. The idea of expedited processing surely excites many individuals pursuing EB-5 investments, no matter how difficult it may be to obtain. The latest USCIS policy update clarifies the criteria and conditions for expedited processing, painting a clearer picture of who is eligible for this fast-track path to U.S. permanent residency rights. The policy update also restores the ability of registered nonprofit organizations providing a service for the cultural or societal benefit of the United States to request expedited processing for immigration benefits.

More Reliance on RFEs and NOIDs

No EB5 investment participant wants to receive a request for evidence (RFE) or notice of intent to deny (NOID), but it’s certainly preferable to a denial. Though NOIDs are highly concerning, RFEs don’t necessarily mean USCIS will deny an I-526 petition or an I-829 petition—rather, it means certain information necessary for the adjudicator to make a decision is missing or unclear. As long as the applicant responds with the appropriate documentation within the allotted timeframe, in most cases, USCIS approves the petition, and the individual goes on to have a successful EB5 investment.

In 2013, USCIS ruled that adjudicators must issue an RFE or a NOID unless they determined that the applicant could not possibly supply sufficient evidence for an approval. In 2018, this was overturned, with USCIS declaring that adjudicators may deny petitions simply for lack of evidence without first issuing an RFE. EB-5 investment participants and others denied in this way simply had their cases reopened or filed new petitions with the missing evidence, resulting in headaches for immigrant hopefuls and an inefficient use of time and resources for USCIS. The June 9, 2021, policy update reverts back to the 2013 rules, where adjudicators generally must issue an RFE or NOID, unless the existing evidence is already sufficient to determine ineligibility. This update is a huge positive for those with EB-5 investments, who are essentially guaranteed a second chance if the documentation they have submitted is insufficient or unclear.

Longer Validity for Employment Authorization Documents

Long wait times characterize much of the EB-5 investment process, including for investors who apply domestically. Foreign nationals residing in the United States on a nonimmigrant visa are eligible to participate in the EB-5 program, and their journeys are mostly identical to those of overseas applicants, except that they file Form I-485 to adjust their immigration status rather than apply for their green card through consular processing.

Since USCIS processing times are long across the board, those who have made an EB-5 investment from within the United States do not necessary experience faster processing times. In fact, USCIS can take a year or more to process I-485 petitions. Without a work permit, this wait time could put an applicant in a precarious personal situation—and providing welfare services would be a burden on the U.S. taxpayer. That’s why USCIS offers employment authorization documents (EADs), which allow applicants to work while their I-485 petition is pending.

Previously, EADs and their renewals were valid for a one-year period, but with the ever-increasing processing times at USCIS, the immigration agency has opted to switch to a two-year validity period. This is a win–win: immigration applicants, including EB-5 investors, can work while they wait for their adjustment of status decision, and USCIS can reduce the number of EAD applications it receives, freeing up more time to adjudicate the pending petitions themselves.