Though most foreign nationals who participate in the EB-5 Immigrant Investor Program do so from their home country, a number of applicants make their EB-5 investment from within the United States. These investors already hold valid non-immigrant visas—such as a student visa or an H-1B work visa—and use an EB5 investment to obtain permanent residency rights in the United States, allowing them to stay indefinitely even after their original visa expires.
Whereas overseas EB-5 investors apply for their U.S. green card through the National Visa Center and their local U.S. embassy or consulate, those already residing in the United States forgo the visa interview process and simply file Form I-485 to adjust their U.S. immigration status. Of course, since immigration is always a complicated process, the adjustment of status process also comes with a mountain of bureaucracy, and traditionally, foreign nationals wishing to change their U.S. immigration status have also been required to submit Form I-944.
What Is Form I-944?
Form I-944, clocking in at a whopping 18 pages, was introduced in February 2020 by United States Citizenship and Immigration Services (USCIS) to be filled out by any foreign national requesting an adjustment of their status. The form, meant as a declaration of self-sufficiency, was intended to show that the applicant would not burden the U.S. social welfare system. It therefore required a library of documents regarding the foreign national’s finances and assets, rendering the otherwise simple adjustment of status application complicated and time-consuming.
The Trump administration expanded the legislation to encompass a larger number of social welfare benefits, including Medicare and federal housing assistance, but the expansion was met with a deluge of lawsuits that alleged a federal law violation. The result was the blocking of the legislation, which the Trump administration filed an appeal against. However, on March 9, 2021, before the U.S. Supreme Court could consider the appeal, the Biden administration announced its stance against the appeal. In fact, it also announced the complete elimination of Form I-944 for adjustment of status applicants. With the U.S. government no longer defending the regulation, the Supreme Court dismissed the numerous pending appeals, so now, foreign nationals looking to adjust their immigration status need not worry about the declaration of self-sufficiency.
The Advantages for EB-5 Investors
Given that an EB5 investment requires a minimum of $1.8 million (or the lower investment amount of $900,000, if the project is in a targeted employment area, a.k.a. TEA), the average EB-5 investor would be unaffected by the I-944 petition. An individual with the means to engage in an EB-5 investment should hardly be affected by this ruling—or at least, that’s what many think.
But in fact, many EB-5 investors are not investing their own wealth but rather EB-5 investment capital donated by relatives. For example, a popular path for many foreign investor parents is to gift their child the required sum to make an EB5 investment, meaning the investor has enough funds to participate in the program but may not have a lot of money outside of this gift. This scenario is particularly popular for international students in the United States, and the previous I-944 requirement led to a hairy situation for students who had, for example, applied for health care subsidies through a state health insurance marketplace.
Student EB-5 investment participants can breathe a sigh of relief with the Biden administration’s announcement of the elimination of the I-944 requirement, as it makes their path to an EB-5 visa dramatically simpler. As of March 9, 2021, I-485 petitions are to be filed without Form I-944, and if an adjustment of status applicant has already filed an I-944 petition, USCIS will disregard it in its adjudication.