The United States’ strong economy, political stability, reliable infrastructure, and many other strengths offer an enticing opportunity for foreign nationals—many around the world want to share in these benefits by becoming permanent residents of the United States. The EB-5 visa is one of the most efficient and low-risk ways to obtain U.S. permanent resident status. Since 1990, investors from around the world have made EB-5 investments and relocated to the United States successfully. We now summarize the EB-5 process and explain how foreign nationals and their families can qualify for EB-5 visas.

1. Making An EB-5 Investment

An immigration attorney’s services will be invaluable throughout the EB-5 process; foreign nationals should work with an immigration attorney with ample experience in the EB-5 program. Moreover, these professionals can help investors find reliable EB-5 projects with a low immigration risk—that is, projects that comply fully with United States Citizenship and Immigration Services (USCIS) regulations. It is particularly important to choose a project that has adequate job creation potential. Preferably, an EB-5 project should aim to create more than the minimum requirement of 10 jobs per EB-5 investor.

2. Filing Form I-526

Once an EB-5 investment has been made, the investor must submit Form I-526, Immigrant Petition by Alien Investor. USCIS will examine this petition carefully to determine whether the EB-5 investment complies with the at risk requirement, was made in a qualifying new commercial enterprise (NCE), and used lawfully sourced funds. It can be particularly challenging to gather the documentary evidence needed to trace the EB5 investment capital back to its source. An immigration attorney’s assistance is particularly crucial at this step of the process. In addition, the at risk requirement entails that there can be no guarantee the EB-5 funds will be repaid.

3. Conditional Permanent Resident Status

USCIS typically takes years to adjudicate Form I-526. Once this petition is approved, the EB-5 investor will be granted conditional permanent resident status. For two years, the investor will be entitled to live and work anywhere within the United States. During this period, it is crucial for the EB-5 project to create the needed number of jobs and to keep the EB-5 capital at risk.

4. Filing Form I-829

During the last 90 days of the two-year conditional residency period, EB-5 investors must submit Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. This form must prove that the EB-5 project fulfilled USCIS’s criteria, particularly the employment creation requirement. Once this petition is approved, investors are granted U.S. permanent resident status without restrictions.

This general overview of the EB-5 process can help foreign nationals decide whether the EB-5 industry is right for them. Consulting firms such as EB5AN can answer any questions related to the EB-5 process and help foreign nationals find the most reliable, USCIS-compliant projects on the market.

Foreign nationals from many countries have participated in the EB-5 investment program and obtained U.S. permanent resident status. Unlike other immigration opportunities, which can be extremely uncertain and lengthy, the EB-5 program sets out clear requirements for its investors. As long as a foreign national makes an EB-5 investment in compliance with United States Citizenship and Immigration Services (USCIS) regulations, the investor will qualify for a permanent green card. In fact, the EB-5 program also includes an investor’s spouse and unmarried dependent children.

Still, the EB-5 process can be difficult to navigate on one’s own—USCIS sets out numerous regulations regarding the way an EB5 investment can be made, what kinds of businesses are eligible, and other matters. EB-5 investors must file Form I-526, Immigrant Petition by Alien Investor and Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, to obtain their visas. If USCIS denies any of these visa petitions, an EB-5 investor will be unable to relocate to the United States.

In light of the above, it is crucial for EB-5 investors to work with an immigration attorney who has experience in the EB-5 industry. Immigration counsel can help an investor make sense of the EB-5 program’s requirements throughout every step of the process. It is especially important to work with an immigration attorney when selecting an EB-5 project, completing the source-of-funds documentation for Form I-526, and compiling Form I-829.

It is just as important for EB-5 investors to choose their immigration counsel carefully; working with an immigration attorney who lacks EB-5 experience could jeopardize an investor’s chances of success. When evaluating potential attorneys, EB-5 investors should look for the following characteristics.

A Solid Track Record

The most reliable immigration attorneys have a history of successful I-526 and I-829 petitions, and all immigration attorneys should be willing to provide their past success rates. Of course, investors must keep in mind that past success does not guarantee that their upcoming visa petitions will be approved. Moreover, if an immigration attorney has a high success rate but has only worked with a few EB-5 investors, the success rate becomes less meaningful.

Effective Communication

Ideally, immigration attorneys should be available to answer their clients’ questions regularly; it is important to communicate with one’s attorney transparently. Moreover, attorneys should be able to respond to questions in a timely manner and provide information about their experience in the EB-5 investment industry.

Positive Client Testimonials

If an immigration attorney can provide positive client testimonials, their reliability increases substantially. EB-5 investors should also ask for client references and look for online reviews of the attorney’s services.

A Source-of-Funds Strategy

As mentioned previously, gathering the legal source-of-funds evidence for Form I-526 is a particularly challenging aspect of the EB-5 process. Immigration attorneys should have a solid strategy for helping their clients compile the necessary evidence and be willing to devote significant time and effort to completing Form I-526.

All EB-5 investors will benefit from working with a competent, experienced immigration attorney. EB5AN can help investors find the most reliable attorneys in the EB-5 industry today.

The EB-5 investment program underwent many changes in 2021, many of which were unexpected and had a significant effect on the industry. For instance, the EB-5 Modernization Rule, a far-reaching amendment to many EB-5 regulations, was repealed in June 2021. As a result, the EB-5 investment threshold was lowered, and the process for designating targeted employment areas (TEAs) once again became the responsibility of individual states.

The most significant change to the EB-5 program in 2021 was the expiration of the regional center program, which left the EB-5 industry without its most popular investment model. As a result of this legislative lapse, EB-5 investors in regional center projects who filed Form I-526 are now unable to proceed with the EB-5 process. United States Citizenship and Immigration Services (USCIS) is no longer processing I-526 petitions from regional center investors.

The lapse in regional center EB-5 investment has also shifted attention toward direct EB-5 projects. Even though direct EB-5 investors do not enjoy the more flexible job creation criteria of their regional center counterparts, the direct EB-5 investment model does not rely on government revalidation.

Of course, it is possible for more changes to take place in 2022, and EB-5 industry stakeholders should be prepared for such changes.

The EB-5 Investment Threshold

As of the June 2021 repeal of the Modernization Rule, the minimum investment amounts are $500,000 for projects in TEAs and $1,000,000 for projects outside TEAs. However, many analysts believe that the U.S. government will raise the amounts in the relatively near future. If Congress approves any legislation that introduces reforms to the EB-5 program, the minimum amounts will likely become higher than the Modernization Rule-era thresholds of $900,000 for TEA projects and $1,8000,000 for non-TEA projects.

In light of this possibility, interested foreign nationals should consider participating in the EB-5 program as soon as possible. Many foreign nationals successfully made direct EB-5 investments in 2021 and filed their I-526 petitions.

The Adjudication of Regional Center I-526 Petitions

As mentioned previously, USCIS is not adjudicating I-526 petitions from regional center investors. Foreign nationals who filed I-526 petitions may fear that the agency could take the next step and issue denials to regional center investors. However, it is unlikely for USCIS to do so; denying pending regional center petitions only because of the program’s suspension would undoubtedly result in numerous lawsuits.

There is a chance that the EB-5 industry will succeed in promoting legislation that would allow regional center investors to be “grandfathered in” and continue with the EB-5 process even if the regional center program remains suspended. Such a scenario would become likely if Congress continues to delay the reauthorization of the regional center program.

TEA Designation

Currently, the EB-5 industry must follow the pre-Modernization Rule criteria for designating TEAs. However, if USCIS or the Department of Homeland Security (DHS) takes action to restore Modernization Rule regulations governing TEAs, there will likely be stricter eligibility criteria for high-unemployment TEAs. Such a change may make it more difficult for EB-5 projects to receive TEA status.

The EB-5 Industry’s Continued Success

Despite its rapidly changing regulations, the EB5 investment industry continues to succeed, helping foreign nationals relocate to the United States and benefitting businesses across the country. Foreign nationals and business owners interested in the EB-5 program would do well to keep these potential changes in mind.

Most members of the EB-5 investment industry would certainly agree that 2021 has been a turbulent year, perhaps one of the most eventful periods in the EB-5 Immigrant Investor Program’s 31-year history. This year saw major changes to EB-5 policies and regulations.

To begin with, the EB-5 Modernization Rule, which had made many controversial changes to EB-5 investment regulations, was invalidated by a June 22, 2021 court ruling. This move reversed the minimum EB-5 investment thresholds back to their pre-November 2019 amounts of $500,000 for targeted employment area (TEA) projects and $1,000,000 for projects outside TEAs. The EB-5 industry as a whole welcomed this change enthusiastically, but the program would soon suffer a major blow. Just a few days later, on June 30, the regional center program expired. Congress failed to pass a bill that would have reauthorized the regional center investment model and made other reforms to the EB-5 program.

Despite this setback, many EB-5 investors and project developers were confident that the lapse in regional center EB-5 investment would be brief. Unfortunately, they were mistaken—as of December 2021, the regional center program remained unauthorized. Many had hoped that Congress would include EB-5 reform in an appropriations bill that was due in December 2021, but it now seems that regional center investment will not be revalidated until February 2022—at the earliest.

As 2022 begins, members of the EB-5 industry and foreign nationals interested in the EB-5 visa may wonder what the future holds for the EB-5 program.

Direct Investment Will Likely Remain Popular

Even though most EB-5 investors used to choose projects sponsored by regional centers due to their flexible job creation criteria, direct EB-5 investment is now the sole option for EB-5 investors. This investment model offers several distinct advantages, often granting investors increased managerial responsibilities and higher returns. Perhaps the greatest advantage to investing in a direct EB-5 project is knowing that direct investment will never suffer a legislative lapse—direct EB5 investment is an inextricable component of the EB-5 program. As such, it does not require periodic reauthorization. Many investors have found suitable direct EB-5 projects in 2021.

What Will Happen to Regional Center Investors?

Due to the expiration of regional center investment, tens of thousands of foreign nationals who had filed their I-526 petitions now find themselves unable to continue with the EB-5 process. United States Citizenship and Immigration Services (USCIS) is no longer processing I-526 petitions from regional center investors; the agency is unlikely to resume adjudication on such petitions unless Congress revalidates the regional center program.

Therefore, regional center operators and investors hope that EB-5 reform, including reauthorization for regional center investment, will be included in the appropriations bill that is due on February 18, 2022. The possibilities of a bill that exclusively addresses the EB-5 program to be passed in Congress are very low.

It may be that the EB-5 industry will find an alternative way to rescue regional center EB-5 investors from processing limbo, such as proposing legislation that would require USCIS to process regional center visa petitions even if the program is suspended. It is clear that the lapse in regional center investment has not only been detrimental to the EB-5 industry—it has also deprived the U.S. economy of much-needed investment capital.

Despite these potential issues, the EB-5 visa remains an ideal way to relocate to the United States, and it has injected billions of dollars of funding into U.S. businesses. 2022 will likely be another eventful and busy year for the EB-5 industry.

Many foreign nationals view the EB-5 investment program as the safest and most reliable way to move to the United States with their families. Indeed, the visa-by-investment approach taken by the EB-5 program has benefitted the country’s economy, created jobs, and helped thousands of foreign nationals to relocate to the United States.

However, the EB-5 industry can be difficult to navigate. The regulations on the EB-5 program set out by United States Citizenship and Immigration Services (USCIS) are numerous and complex. Therefore, it is essential for EB-5 investors to work with immigration counsel in every step of the process; if an EB-5 investment fails to comply with all USCIS regulations, the investor will become ineligible for permanent resident status.

Investors must also keep in mind that the minimum EB-5 investment amounts are substantial: targeted employment area (TEA) projects require a minimum investment of $500,000, and the investment threshold for non-TEA projects is $1,000,000. Moreover, one of the key requirements for EB-5 investment capital is that it must remain at risk; all EB-5 investors must be able to experience either loss or gain, and there can be no guarantees that their funding will be returned. Foreign nationals who would like to make an EB-5 investment must consider the following factors when evaluating potential projects.

Evaluate Projects Thoroughly to Avoid Fraud

Unfortunately, EB-5 business owners have occasionally committed fraud and misused EB-5 capital. Before subscribing to a project, potential EB-5 investors should do research on the experience and legal standing of the project’s owners and managers, especially those in charge of overseeing the EB-5 investment funds. Making an in-person or virtual site visit is highly recommended, and transparent EB-5 projects will gladly allow investors to tour the project site. Foreign nationals should also gather third-party information on the EB-5 project and the parties involved.

Reducing Immigration Risk

Many EB-5 investors are more concerned with obtaining U.S. permanent resident status than gaining significant profits from their investments. Therefore, it is crucial to evaluate an EB-5 project’s immigration risk—that is, its chances of being completed successfully and complying with all USCIS requirements, such as creating 10 jobs per investor.

One of the most relevant factors that determine a project’s immigration risk is whether it will be completed if the expected amount of EB-5 funding is not raised. The most trustworthy EB-5 projects will have an alternative source of funding available in the case of a shortfall of EB-5 capital. This way, it will be much more likely for the project to be completed successfully.

It is also indispensable to evaluate an EB-5 project’s potential for job creation. Projects that plan on generating far more than 10 jobs per investor and thus offer ample job cushions are the safest options. In fact, foreign nationals may even be able to invest in projects that have already created the necessary number of jobs. For instance, a real estate development project may create all the necessary jobs for its investors before construction is complete. Potential EB-5 investors should look for safe opportunities like these.

Interested foreign nationals must also look at the more minute details of a project’s offering. For instance, job creation must be timed carefully. If all 10 jobs have not been created by the time USCIS adjudicates Form I-829, an EB-5 investor will be unlikely to receive permanent resident status. In addition, projects with USCIS exemplar status or an approved I-526 petition have already shown compliance with all of the agency’s standards.

Making an EB5 investment requires diligent planning and professional consultation, but numerous foreign nationals have successfully relocated to the United States and even obtained citizenship through the program. Potential investors should contact EB5AN to receive personalized guidance on how to begin the EB-5 process and find trustworthy projects.

The December 2021 Visa Bulletin contained momentous news for the EB-5 investment industry: for the first time since 2015, all direct EB-5 investors would no longer be subject to final action dates or dates for filing. This positive development enables direct investors to apply for and receive their visas as soon as their I-526 petitions have been approved by United States Citizenship and Immigration Services (USCIS).

Fortunately, the January 2022 Visa Bulletin shows that all direct investors remain at “C” (current) status. Chinese EB-5 investors, who had been subject to cutoff dates since 2015, will undoubtedly benefit from possessing current status; many more foreign nationals will likely be able to move on with the EB-5 process and get closer to obtaining permanent resident status.

Despite the good news in the two most recent Visa Bulletins, the EB-5 Regional Center Program, which had been the most popular EB5 investment type, remains suspended as of December 2021. The U.S. government has failed to revalidate the regional center program since its expiration on June 30, 2021. This extended lapse has contributed to the popularity of direct EB-5 investment, which often grants investors many unique benefits such as increased managerial control and, possibly, higher returns.

Chart A

Chart A of the January 2022 Visa Bulletin contains the final action dates for oversubscribed countries. As in the previous bulletin, all direct (“non-regional center”) investors enjoy “C” status and can receive their visas as soon as they are documentarily qualified.

The regional center values in Chart A are marked as “U” (unauthorized). In Section D of the Visa Bulletin, the Department of State (DOS) notes that, should the regional center program be reauthorized in January 2022, the final action date for regional center investors will be November 22, 2015. However, it is unlikely for regional center investment to be revalidated before February 2022.

Chart B

The dates for filing are current for all direct investors, meaning that these EB-5 investment applicants no longer have to wait to request their visas. The date for filing for Chinese regional center investors remains at December 15, 2015.

It is unclear how long the regional center program will remain suspended, or how a possible reauthorization could affect the cutoff dates. Still, Chinese investors whose EB-5 visa petitions were put on hold due to the cutoff dates are surely relieved that they can now continue with the process.

The EB-5 visa’s popularity has noticeably increased in recent years, with thousands of foreign nationals participating in the EB-5 investment program and obtaining U.S. permanent resident status. Even though many investors have obtained U.S. green cards through the EB-5 program, foreign nationals interested in the EB-5 industry should note that simply making an EB-5 investment does not guarantee that the investor will receive permanent residency. United States Citizenship and Immigration Services (USCIS) examines every EB-5 investment to determine whether it complies with its guidelines. USCIS regulations govern the way EB-5 investments can be made, the kind of businesses that are eligible for the EB-5 program, and many other facets of the EB-5 industry.

To ensure compliance with USCIS guidelines, EB-5 investors must work closely with experienced immigration counsel and do thorough research on the EB-5 program before investing. During the EB-5 process, investors must submit Form I-526, Immigrant Petition by Alien Investor, and Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. These visa petitions determine whether an EB-5 investor will receive a U.S. green card.

Occasionally, despite an investor’s best efforts, USCIS denies their visa petition. In this article, we explain how investors can respond to a USCIS denial.

Next Steps After a USCIS Denial

If an EB-5 investor receives a petition denial, this does not necessarily mean that they will never be able to immigrate to the United States. First, they should read the denial notice carefully to find out why USCIS found the visa petition deficient. The investor’s immigration counsel should also review the denial notice.

If an EB-5 investor and their immigration counsel possess evidence that could likely persuade USCIS to reconsider the visa petition, they might decide to file a legal motion requesting the agency to reevaluate its decision. Of course, a legal motion must be accompanied by an exhaustive, detailed explanation of why the visa petition is valid. If an investor’s legal motion is unsuccessful, they may instead file an appeal of the petition denial.

EB-5 investors should also keep in mind that they will likely be able to file a new EB-5 visa petition. If, for instance, an investor’s petition was denied because the EB-5 project was not USCIS-compliant, they can simply file a new petition with a more reliable project.

Common Reasons for USCIS Denials

Of course, the best course of action is to avoid a USCIS denial in the first place. In many cases, EB-5 petitions are rejected because the investor failed to reach the minimum investment threshold. As of June 22, 2021, the minimum investment amounts are $500,00 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects. USCIS is also strict about enforcing the at-risk requirement, which entails that EB-5 investors cannot have a contractual right to repayment; they must be open to either profits or losses.

Moreover, the information provided in EB-5 visa petitions must be as accurate and up-to-date as possible. For instance, Form I-526 must include detailed information on the EB-5 project’s business plan, including its financial projections and capacity for job creation. These figures must be presented consistently across the petition.

EB-5 investors must also take great care to provide the needed source-of-funds documentation in Form I-526, tracing the EB-5 investment capital back to its source. USCIS must be able to ascertain that the EB-5 investment funds were sourced legally, and preparing this evidence is one of the most important aspects of the EB-5 process.

The EB5 investment process may bring unexpected challenges or delays; still, as long as an EB-5 investor plans carefully and works with competent immigration counsel, they will likely be able to obtain U.S. permanent resident status.

In recent years, numerous U.S. business owners have expressed interest in the EB-5 investment industry. The EB-5 program has for many years allowed foreign nationals to receive U.S. green cards in exchange for investing in qualifying businesses. Since EB-5 investment capital is often available at below-market rates, it is especially convenient for the U.S. economy.

The EB-5 investment industry is overseen by United States Citizenship and Immigration Services (USCIS). Moreover, making an EB-5 investment does not guarantee that a foreign national will receive permanent resident status: USCIS will carefully examine the investment to ensure that it complies with the EB-5 program’s requirements. EB-5 investors receive permanent residency only after their I-526 and I-829 visa petitions have been approved. USCIS requires all EB-5 investments to create a minimum of 10 jobs, remain at risk, and fulfill many other criteria.

Therefore, EB-5 projects must be tailored to the needs of EB-5 investors and comply with all USCIS guidelines. Project developers should take care to offer ample job creation potential, avoid relying solely on EB-5 capital, and try to obtain TEA designation.

Potential for Employment Creation

One of the main purposes of the EB-5 program is to reduce unemployment, so USCIS is strict about its job creation requirement. Even though each investor needs to be allotted a minimum of 10 jobs, EB-5 project developers are recommended to create more than the minimum number of jobs. EB-5 projects with an ample job cushion are perceived as safer and are thus popular among investors.

In some cases, investors may wait until a project has already created several jobs and then subscribe. For instance, a construction project that is open to a maximum of 10 EB-5 investors may plan on creating approximately 300 jobs. Once construction is halfway through, about 150 jobs will have been created. An EB-5 investor who subscribes to the project at this point will already fulfill the employment creation requirement.

Avoiding Reliance on EB-5 Funding

The safest and most popular projects do not rely on EB-5 funding for completion; EB-5 investment capital should make up a relatively small portion of the overall capital stack. Therefore, the project should be successfully completed even if there is a shortfall of EB-5 funds. Having alternative sources of funding is perhaps the most important factor that determines a project’s reliability from an immigration perspective.

Alternative sources of funding can include an initial bridge loan or additional sources of debt or equity. Irrevocably committed developer funds, a construction completion guarantee (if applicable), and a senior loan with a major bank will also add to an EB-5 project’s reliability from an immigration perspective.

TEA Designation

The standard EB-5 investment threshold is $1,000,000, but EB-5 projects located in targeted employment areas (TEAs) can receive investments of only $500,000. Naturally, most investors look for projects located in TEAs.

The EB-5 industry offers valuable opportunities for U.S. business owners. As long as an EB-5 project has sufficient job creation potential, does not rely on EB5 investment funds for completion, and possesses TEA status, it will likely attract EB-5 investors. Interested project developers should consult with EB5AN, which has helped numerous U.S. businesses obtain EB-5 capital.

Many foreign nationals who would like to immigrate to the United States through the EB-5 program may feel somewhat intimidated at first. After all, United States Citizenship and Immigration Services (USCIS) carefully evaluates every EB-5 investment to ensure compliance with its regulations. In addition, the EB-5 investment process is complex and takes several years. It is also important to note that foreign nationals are not automatically guaranteed to receive permanent resident status after making an EB-5 investment.

U.S. business owners may find themselves in a similar situation. The lawful, secure source of capital offered by the EB-5 program is especially desirable in the wake of the COVID-19 pandemic and the ensuing economic hardships. However, EB-5 business owners must take great care to follow USCIS requirements when creating their projects; if they fail to do so, their EB-5 investors will not qualify for U.S. green cards.

Fortunately, both EB-5 investors and business owners can rely on EB-5 immigration counsel to guide them throughout the process. It is crucial for anyone interested in the EB-5 investment industry to work with an experienced immigration attorney. These professionals can help ensure compliance with USCIS regulations.

Immigration Counsel for EB-5 Investors

The first step investors must take is to choose an EB5 investment project. Immigration attorneys can help investors evaluate projects, favoring those with the lowest immigration risk—that is, projects that comply with USCIS regulations, such as the at-risk and job creation requirements. It is particularly important to choose an EB-5 project that can create at least 10 jobs per investor; job creation is one of the main objectives of the EB-5 program.

Once an EB5 investment has been made, investors must submit Form I-526, Immigrant Petition by Alien Investor. This lengthy visa petition must contain detailed information about the EB-5 investment and the EB-5 business. It must also trace the invested funds back to their source in great detail. This last requirement can be especially challenging, so immigration attorneys will be invaluable in gathering the source-of-funds documentation.

Once an EB-5 investor has their I-526 petition approved and nears completion of their conditional residency period, it will be time to file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. This petition must, in essence, demonstrate that the EB-5 investment capital remained at risk throughout the conditional residency period and that at least 10 jobs were created. Immigration attorneys can help EB-5 investors identify the necessary evidence and submit their I-829 petitions before the deadline. (I-829 petitions must be submitted within the last 90 days of an investor’s conditional residency.)

Immigration Counsel for EB-5 Business Owners

From the very start of an EB-5 business’s creation, an immigration attorney can help the owner comply with USCIS regulations as the business’s structure and operations are determined. The way EB-5 funds are received and used is a crucial aspect of any EB-5 business due to the at-risk requirement, which entails that all EB-5 investors must be open to either gains or losses. Immigration counsel can also make sure that a project’s business plan, exit strategy, and other details are EB-5-compliant.

Evidently, immigration attorneys play an essential role in the EB-5 investment industry. Both investors and project developers would do well to find experienced immigration counsel before getting involved in the EB-5 program.