On March 31, 2020, United States Citizenship and Immigration Services (USCIS) transitioned from its traditional first-in-first-out (FIFO) I-526 processing approach to a visa availability approach. What does this mean for EB-5 investors? It depends on their country of origin.

How the Visa Availability Approach Works

Under the previous FIFO approach, USCIS assigned I-526 petitions for adjudication based on the date of receipt. Because the unequal distribution of EB-5 demand from different countries allowed backlogs for EB-5 investors from certain countries to quickly build up, USCIS ended each fiscal year with leftover visas that could have been issued to investors from other countries if their I-526 petitions had been processed. With the new visa availability approach, I-526 petitions are assigned for adjudication based on whether there are available EB-5 visas for the investor’s country. The adoption of this processing method should reduce the number of leftover visas at the end of each fiscal year.

Who is Negatively Affected by the Visa Availability Approach?

Because USCIS uses the Chart B dates to assign petitions for adjudication, China is the only country negatively impacted by the visa availability approach. Speculation that the move could also impact Indian and Vietnamese EB-5 investors was cleared up at USCIS’s March 13 public engagement. The speakers at the engagement also revealed their belief that India’s backlog may disappear by summer 2020, further brightening the situation for Indian EB-5 investors.

China has long outpaced all other countries in terms of EB-5 demand. Under the FIFO approach, the majority of I-526 petitions adjudicated belonged to Chinese EB-5 investors, since they dominated the I-526 submissions. However, since only approximately 700 EB-5 visas are available for Chinese investors per year, both the Chinese backlog and the number of leftover visas built up. Under the visa availability approach, after accounting for the 700 or so visas available annually for Chinese investors, USCIS will prioritize I-526 petitions from EB-5 investors of other nationalities.

Who is Positively Affected by the Visa Availability Approach?

EB-5 investors from any country other than China may see positive impacts from the adoption of the visa availability approach. However, EB-5 investors from backlogged countries, like Vietnam, or countries where demand is high, like South Korea, should bear in mind that they could be negatively affected in the future.

Does the Visa Availability Approach Affect Expedite Requests?

One of the only exceptions to the new visa availability rule is expedite requests, which USCIS intends to honor regardless of the visa situation for the EB-5 investor’s country.

How Can Investors Monitor Which Countries Are Affected?

Every month, the U.S. Department of State – Bureau of Consular Affairs releases a Visa Bulletin. It contains two charts relevant to EB-5 investors.

Chart A: Final Action Dates

Chart A reveals when EB-5 investors are eligible to schedule a visa interview and apply for conditional permanent resident status. As of April 2020, investors from three countries—China, India, and Vietnam—face a backlog. Each month, EB-5 investors from these countries must check whether the final action date is on or after their priority date. If it is, they may schedule their visa interview. Investors whose countries have a “current” final action date may schedule their visa interview immediately after I-526 approval.

Chart B: Dates for Filing

Chart B is the chart that USCIS uses in its visa availability approach to determine adjudication assignments. As of April 2020, China is the only country that is not current in this chart, meaning that only Chinese EB-5 investors are affected at present. Chinese investors must check Chart B to see whether the date for filing is on or after their priority date—if it is, they may file their green card application with the National Visa Center.

In most countries, another school year is coming to an end, and youth around the world are preparing to embark on new adventures. New high school graduates will start selecting their classes at university, and new college graduates will set out in the professional world to make a name for themselves. Many of these fresh graduates have their sights set on the United States to achieve their educational and career aspirations.

The downside is that immigration is a tricky process, and many new international students and graduates in the United States are restricted by their study visas. International students are severely limited in terms of the jobs they can take during their studies, and international graduates must rush to secure employment with a company willing to sponsor them for a visa. The EB-5 Immigrant Investor Program is a godsend for both.

Brief Overview of the EB-5 Program

The EB-5 program was created in 1990 to foster the U.S. economy via the capital of foreign investors. The minimum required investment amount is generally $1.8 million but drops to $900,000 if the EB-5 project is in a targeted employment area (TEA). As long as an investor’s funds create 10 new full-time jobs for U.S. workers, the investor and his or her family are entitled to U.S. green cards.

The Benefits of an EB-5 Visa for Students

The many issues international students face when studying or working in the United States can be solved with an EB-5 visa. The following are some of the ways in which students can benefit from an EB-5 visa.

Easier Admission to U.S. Colleges

The United States is home to many of the world’s best universities, with numerous U.S. institutes making nearly every list of top colleges worldwide. Ambitious youth both in the United States and abroad dream of studying at top-tier schools such as Harvard University, MIT, Stanford University, and the University of California, Berkeley, but the admissions process is competitive, and only the best are admitted.

Unfortunately for international students, the admissions process is even more competitive than for domestic students. Typically, U.S. colleges accept a lower percentage of international students than U.S. students. However, applicants with an EB-5 visa are considered U.S. residents, which places them in a better pool for the admissions process.

Lower Tuition Costs

Depending on the college, in-state applicants may be eligible to save on tuition costs—sometimes to a substantial degree. Savings of up to $22,000 per year are possible through in-state tuition cuts. In-state applicants may also be qualified to apply to more financial aid programs or receive a wider range of scholarships. An EB-5 visa grants applicants these rights in their state of residence.

No Work Restrictions During College

While international students in the United States are entitled to receive the same high-quality post-secondary education as U.S. students, their work opportunities are severely limited. International students studying on the F-1 or M-1 visas can only take on certain jobs or internships during their college period, which puts them at a disadvantage when they graduate and try to compete with their U.S. peers on the job market.

In contrast, students with an EB-5 visa can take advantage of all the same work opportunities as U.S. students, allowing them to build up their professional experience, polish their résumé, and easily compete with their peers for jobs in the U.S. market.

Right to Continue Residing in the United States After Graduation

For many international students, the excitement of receiving their hard-earned degree at the end of their studies is followed quickly by a harsh reality: their soon-to-expire right to live in the United States. Most opt for the H-1B visa, but it requires employer sponsorship, which can be difficult to attain, and since the H-1B operates through a lottery-based system, these graduates are gambling with their future in the United States.

Graduates with an EB-5 can bypass all the bureaucratic uncertainty and anxiety their international classmates face. U.S. green card holders can receive their degrees and walk off stage confident in their prosperous future in the United States thanks to the EB-5 program.

Give Your Child the Gift of EB-5

Under the EB-5 program, entire families can immigrate to the United States, provided the children are not married and are younger than 21. However, in cases where a child is too old or married, or where the parents simply don’t wish to immigrate themselves, parents may gift their child the funds they need to participate in the EB-5 program. EB-5 capital may be the most valuable gift for a young graduate with high ambitions and dreams of a life in the United States.

A U.S. education or career is, of course, still possible without an EB-5 visa, but the EB-5 program can make your child’s journey easier and more comfortable in numerous ways. To put your child on the same level as U.S. nationals and afford them the highest chances of success, a gift of EB-5 funds is the way to go.

In their planning, EB-5 investors must bear in mind the processing times for their country of origin, as miscalculations could result in a delayed start to their child’s future. EB-5 investors from China, Vietnam, and India are subject to backlogs, which means they have to wait longer to obtain their EB-5 visa, since each country is only allocated about 700 EB-5 visas per year. The good news is that investors from all other countries can obtain EB-5 visas relatively quickly, and Indian investors may join them by summer 2020, if the current trend of low EB-5 demand continues.

The Visa Availability Approach

Announced in January 2020 and enacted on March 31, 2020, the new visa availability processing approach for I-526 petitions has made its debut, with its concrete impacts yet unclear. Even though the new processing approach brings noticeable changes to the EB-5 journey, United States Citizenship and Immigration Services (USCIS) has failed to update its Check Case Processing Times page accordingly.

Since USCIS’s estimated processing times reflect data from two weeks prior, it’s possible USCIS will not update its website until June. It is also possible that USCIS will never update the page.

The good news, however, is that according to the historical processing times, I-526 adjudications are speeding up. In the period of October 2019 to January 2020, the average I-526 processing times were down to just over 12 months—a historical low in the five-year period presented on the website. Additionally, while the processing data during the COVID-19 pandemic have not yet been released, more EB-5 investors are reporting receiving adjudications since the crisis began. With public life shut down, the Immigrant Investor Processing Office (IPO) is cooped up inside and likely has nothing much to do other than adjudicate EB-5 petitions, which is good news for EB-5 investors awaiting I-526 approval.

The Impact of COVID-19

As infection numbers and unemployment rates continue to shoot up, no one in the United States has been left unaffected. With the economy suffering unprecedented damage, the EB-5 program has the resources to help, especially given that it incentivizes investment in high-unemployment areas, termed “targeted employment areas” (TEAs). However, the current setup of the TEA system is insufficient to allow the EB-5 program to properly respond to the economic fallout of COVID-19.

TEA designation is based on unemployment averages from the year prior, which means I-526 petitions in 2020 must use figures from 2019. 2020’s skyrocketing unemployment figures will only come into play in 2021, and the overall figures depend on numerous factors, including how long the crisis lasts, how many businesses permanently shutter, and how quickly the economy rebounds.

However, even if the TEA system used current unemployment data, an additional problem hinders the EB-5 program’s ability to assist in building the economy back up: It is based on relative unemployment. If unemployment rates skyrocket all over the country, the TEA program will not incentivize investment in many areas, even if they have a dire need for economic stimulation. Only the areas hit hardest by COVID-19 job losses will enjoy the benefits of EB-5 TEA designation.

As the TEA system stands now, hard-hit areas like New York may stand to benefit from the EB-5 program, but much of the country will not, even though the entire country is likely to need the foreign investment the EB-5 program brings into the country. While the rumors of sweeping changes to the EB-5 program in response to the COVID-19 pandemic have been repeatedly debunked, more moderate changes to the program, especially to the TEA system, could dramatically improve the program’s position to help foster the U.S. economy and make sure the United States remains strong and proud.

Good things come to those who wait. The EB-5 Immigrant Investor Program is complex and popular, so expect to wait at least a couple of years by default before receiving your conditional permanent resident status. The unpredictable situation of COVID-19 may also influence wait times. Here’s how long you can expect to wait in the different stages of the program during the COVID-19 pandemic.

Time Needed to Prepare and Submit an I-526 Petition

Filing an I-526 petition is how you kick off the official EB-5 process. Each investor and EB-5 project is different, so how long this stage takes depends entirely on your individual circumstances. Consult with an immigration attorney to guide you through the process and ensure that you’re doing everything correctly. You can expect this process to take a few weeks to several months, depending on how much due diligence you need to conduct and how difficult it is to prove the lawful sources of your EB-5 capital.

Time Needed to Receive an Adjudication on an I-526 Petition

United States Citizenship and Immigration Services (USCIS) processes I-526 petitions at its Immigrant Investor Program Office (IPO). As of April 9, USCIS has closed its offices to the public until at least May 4, with closures poised to be extended if the outbreak is still not under control by then, but the IPO, which does not need to deal with the public, is continuing its normal operations. According to USCIS’s processing estimates, the processing times in April 2020 are estimated at around 31 to 50.5 months, with 43% of I-526 petitions expected to be adjudicated during this period. However, detailed processing data reveals that up to 80% of adjudications may fall outside the estimated range. Additionally, the estimates are based on data from two months prior, inevitably allowing for inaccuracy.

While EB-5 investors should prepare to wait at least two years for their I-526 adjudication, USCIS has also revealed that the average processing time for an I-526 petition from October 1, 2019, to January 31, 2020, was only slightly more than a year. You may receive your adjudication earlier than expected.

How the Visa Availability Processing Approach Affects Processing Times

Traditionally, the IPO assigned I-526 petitions for adjudication on a first-in-first-out basis, but on March 31, 2020, it adopted a visa availability approach. Under the new system, the IPO assigns I-526 petitions for adjudication based on whether there are any EB-5 visas available for the applicant’s country. Since USCIS uses the Chart B dates from the monthly Visa Bulletin, the only investors affected as of April 2020 are those from Mainland China, whose Date for Filing in the April 2020 Visa Bulletin is December 15, 2015. Therefore, Chinese EB-5 investors may face longer wait times, while investors from other countries could potentially see faster processing times.

Wait Times After I-526 Approval

Depending on your country of origin, your wait may continue even after your I-526 petition is approved. For EB-5 applicants outside the United States, USCIS sends approved I-526 petitions to the National Visa Center (NVC) to proceed with the visa application, but if you’re from a backlogged country (as of April 2020, China, India, and Vietnam are the only backlogged countries), the NVC will hold off on contacting you until your priority date is earlier than the final action date of your country. The backlogs move in unpredictable ways, so if you’re from a backlogged country, expect to wait several more months or even years.

Time Needed to File and Receive Adjudication for an I-485 Petition or DS-260

If you’re living outside the United States, you can start the process of filing your DS-260 form to apply for a U.S. green card once the NVC contacts you. You must carry out the process through your local U.S. consulate or embassy, but since all U.S. consulates and embassies are currently closed due to the coronavirus pandemic, you will have to wait until public life opens back up.

If you already live in the United States under a different visa, you can skip the NVC step and simply file an I-485 petition to adjust your immigration status. Since you don’t need to visit a consulate in this case, COVID-19 may have little impact on your EB-5 visa. In fact, EB-5 investors already residing in the United States may even obtain their EB-5 visa faster because they may receive visas originally intended for investors overseas.

Time Needed to Schedule a Visa Appointment and Obtain an EB-5 Green Card

As mentioned above, because USCIS has suspended regular operations at consulates and embassies, overseas investors cannot proceed past I-526 approval until the COVID-19 crisis subsides.

EB-5 investors already living in the United States may also face setbacks if they require an interview or biometric appointment. With USCIS offices across the United States closed until at least May 4, many domestic EB-5 investors will also find their EB-5 process stalled.

Even in the best of times, there is no specific time frame for how long it takes to obtain an EB-5 visa after your visa interview, but with overseas investors unable to proceed with their applications, if you are applying from overseas, you should expect to wait several more months.

One of the most dreaded experiences for participants in the EB-5 Immigrant Investor Program is receiving a Request for Evidence (RFE) from United States Citizenship and Immigration Services (USCIS). Not every EB-5 investor encounters this anxiety-inducing situation, but those who do need to plan their response carefully to not jeopardize their chance of obtaining U.S. permanent residency.

What Is an RFE?

The most important thing to understand about USCIS RFEs is that they do not mean your I-526 petition will be denied. This differentiates them from Notices of Intent to Deny (NOIDs), in which case USCIS does intend to deny your petition unless you clear up any misunderstandings.

You can think of both RFEs and NOIDs as a second chance for an EB-5 visa. USCIS issues NOIDs to warn EB-5 investors that the evidence provided in their EB-5 petition will lead to a denial if they don’t clear up the issues USCIS identifies. USCIS RFEs are less frightening, as they are issued when the evidence in a petition is insufficient to support an adjudication, either positive or negative. USCIS will be forced to deny your EB-5 petition if you do not provide the requested information by the specified due date, but an RFE does not indicate an intention to deny your EB-5 petition.

What Information Does an RFE Contain?

Luckily for EB-5 investors, USCIS RFEs contain ample information to help them formulate a proper response. USCIS explains in detail why it has issued the RFE—typically in response to missing documentation, unclear evidence, discrepancies, or other data-related problems. If the petition is lacking essential documentation, the RFE will identify the necessary documents, and if it contains unclear or contradictory information, the RFE will identify the problem areas. In most cases, RFEs also provide examples of suitable evidence to provide in the RFE response.

In What Situations Might an EB-5 Investor Receive an RFE?

I-526 petitions are complicated, so there are many areas where issues can arise. EB-5 investors often receive USCIS RFEs in response to insufficient evidence documenting the lawful sources of their EB-5 capital or the path of their funds into the EB-5 project. USCIS also sends out RFEs for additional information on the EB-5 investor’s personal background.

While investors often receive USCIS RFEs regarding investor-level information, they may also need to provide supplementary information on the EB-5 project. For example, USCIS may request additional information on the hiring schedule or business plan of the new commercial enterprise (NCE).

In some cases, EB-5 investors may even receive an RFE because USCIS overlooked documentation they provided. USCIS agents are not infallible, and the complexity of I-526 petitions makes it easy enough to overlook information. In this case, all you need to do is resubmit the requested evidence. Don’t waste this opportunity to scrutinize your documentation and make changes if necessary, however. Explain in a cover letter that you are resubmitting an overlooked document, but identify and justify any changes you have made.

How to Respond to an RFE

The first step to responding to a USCIS RFE is to carefully read all the information provided therein. RFEs always include a deadline for responding, which EB-5 investors must consider when preparing their response. Since failure to respond to an RFE will lead to denial, investors cannot afford to delay their response. Stay calm—if you follow USCIS’s instructions and provide a suitable response, your I-526 petition will likely proceed smoothly.

In addition to the requested evidence, an RFE response should always include a detailed cover letter that addresses all the concerns USCIS has identified and clearly organizes all the attached documents. Use your given time wisely and compose a well-thought-out cover letter. Ask others to check it to ensure it’s sufficiently thorough and clear.

When confronted with a USCIS RFE, consult experienced EB-5 experts to help formulate an appropriate response. The EB5AN team consists of long-time professionals in the EB-5 sphere who understand the ins and outs of the program. Our team can assist you with preparing documentation, refining business plans, and other matters related to RFE responses. Reach out to us, and we can help you craft a high-quality response to your RFE.

Not all EB-5 journeys are the same. There exist two main pathways to a U.S. green card through the EB-5 visa program—direct investment and regional center investment. Both have advantages and disadvantages, depending on the investor’s goals and wishes, but far more EB-5 investors opt for regional center investment because it is generally considered more advantageous. Below are some of the benefits of investing through an EB-5 visa regional center.

Lower Immigration and Financial Risk

Reputable regional centers select the projects they take on extremely carefully. While investors are always strongly recommended to Conduct their own due diligence on a project, projects offered by EB-5 visa regional centers are likely to be high quality and pose lower immigration and financial risk. Many EB-5 visa regional center projects also have exemplar status, which significantly facilitates the I-526 process for investors.

Regional center projects also tend to be located in targeted employment areas (TEAs). TEAs are urban areas where the unemployment rate is 50% higher than the national average or rural areas with fewer than 20,000 inhabitants. EB-5 investors working with TEA projects need only invest $900,000, while those involved with projects outside of a TEA must invest at least $1.8 million.

Limited Managerial Duties

For EB-5 investors with managerial skills and experience who wish to be heavily involved in the new commercial enterprise (NCE), direct investment is a good idea. For the rest, however, EB-5 visa regional centers are preferable.

One of the EB-5 program’s requirements is that the investor be involved in the management of the NCE, which, for direct investments, typically means conducting day-to-day managerial activities. Depending on the structure of the project, however, investors may also satisfy this requirement by engaging in policy formation (i.e., voting on matters). This option is typically available for investors who invest through EB-5 visa regional centers, lifting the burden of managerial responsibility from their shoulders.

Easier Job Creation Requirements

Regardless of the EB-5 path an investor chooses, all investors are required to demonstrate the creation of at least 10 new permanent, full-time jobs as a result of their investment. One of the biggest advantages of regional center investment is the relaxed requirements surrounding this rule.

Direct EB-5 investors must prove the creation of at least 10 new direct jobs, which are either construction jobs or jobs on the NCE’s payroll (investors can count construction jobs only if construction lasts for at least two years). To satisfy the job creation requirements, direct EB-5 investors should be highly experienced in business management and confident in their ability to help drive the NCE to success.

The job creation requirement is easier for regional center investors. Regional center EB-5 investors are permitted to include indirect jobs (the jobs of external suppliers and service providers) and induced jobs (jobs created in the community by the NCE’s employees spending their wages), as long as they use accepted economic methodologies to calculate job creation. Therefore, the job creation requirement is far easier to meet with regional center investment, which lowers immigration risk.

The Freedom to Live Anywhere in the United States

Most EB-5 investors who directly invest in a project participate in the daily management of the NCE, meaning they are tied to the project’s location. The most attractive EB-5 projects for investment—those located in TEAs—may not be in the most desirable areas to live, and there may be no areas nearby where the EB-5 investor wishes to live.

Regional center investors are free from this burden. With their role as a limited partner being enough to satisfy the managerial involvement requirement, investors who work with an EB-5 visa regional center are free to live anywhere in the United States regardless of the location of their EB-5 project. This gives EB-5 investors the freedom to choose the most promising EB-5 project they can find without restricting their living opportunities. With regional center investment, an investor can invest in an EB-5 project in Florida and live in Massachusetts.

Another bonus of this freedom is that regional center investors can work or study during their investment process. An EB-5 visa offers easier access to U.S. colleges and universities, making it the perfect solution for students. With nothing tying investors to the state of their EB-5 project, they may study anywhere in the United States.

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

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

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

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

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

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

Secure a High-Quality Education for Your Children

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

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

Become a U.S. Citizen

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

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

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

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

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

Visa Appointments Postponed

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

Electronic Signatures Temporarily Accepted

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

Flexible Deadlines for RFEs and NOIDs

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

Consulate and Embassy Closures

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

EB-5 Coronavirus Rumors

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

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

Lower Immigration and Financial Risk

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

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

Higher Likelihood of TEA Designation

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

Relaxed Requirements for Job Creation

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

The Freedom to Live Anywhere in the United States

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

Benefits of Direct Investment

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

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

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

What Makes the EB-5 Program Ideal?

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

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

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

Proving the Source of Funds

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

Tips

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

The Benefits of EB-5 for Students

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

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