The EB-5 program currently has the longest processing time of any employment-based immigrant visa category. As any investments under this program must remain at risk throughout the visa application process and until the investor’s I-829 petition is adjudicated, investors face considerable risk due to processing times. This article outlines each stage of the EB-5 process so investors can learn whether the program is well suited to their immigration goals and time frames.
Step 1: Form I-526
The first stage of applying to the EB-5 program is to submit Form I-526, Immigration Petition by Alien Entrepreneur, to United States Citizenship and Immigration Services (USCIS). This form declares the investor’s intent to immigrate to the United States under the EB-5 program and provides detailed evidence that the investor has made or is making an investment in a qualifying new commercial enterprise that will create 10 full-time jobs within the two years of the conditional residence period. Supporting evidence such as bank statements and a business plan are necessary to corroborate the information submitted.
In 2020, USCIS implemented a new approach to processing I-526 petitions to try to speed up the adjudication process. Previously, USCIS processed these forms on a first come, first served basis. As of March 31, 2020, USCIS changed to the visa availability approach, which means it will first adjudicate I-526 petitions submitted by applicants from countries for which visas are immediately available.
Petitioners should still expect I-526 processing times to vary, as several additional factors affect processing times. These include the complexity of source of funds documentation and petition errors. The most recent estimated case processing times are available on the USCIS website.
Many petitions take more than two years to adjudicate, and this delay puts a strain on investors, who are forced to accept additional risk and to perfectly time their job creation to adhere to the program requirements. While investors have the option of filing a writ of mandamus with the U.S. courts to compel USCIS to adjudicate their petitions, this process takes time and costs money.
Step 2: Consular Processing or Adjustment of Status
Approval of the I-526 petition prompts the next stage of the process, wherein investors apply for conditional two-year permanent residence in the United States. For investors residing overseas, the second step is consular processing, whereas for investors holding nonimmigrant status in the United States, the second step is adjustment of status. Each of these is outlined below.
Consular Processing
Investors and their derivative family members must file the DS-260 application with the National Visa Center (NVC) to gain admission to the United States. After the NVC reviews an application, it is forwarded to the U.S. consulate in the investor’s country of origin for processing and so the applicant can be interviewed. Chinese investors will be interviewed at the U.S. consulate in Guangzhou, for example. Wait times between the NVC and the consulate are also lengthy, sometimes more than a year.
Adjustment of Status
Investors and their derivative family members in the United States with nonimmigrant status must submit Form I-485 to adjust their status to that of a conditional permanent resident. While adjustment of status is generally faster than consular processing, investors must review the USCIS filing charts to determine by what date they will be eligible to submit their I-485 applications.
For investors subject to visa backlogs, these backlogs will affect the filing date for adjustment of status regardless, as well, meaning a wait following approval of the I-526 petition. While it is possible for an investor and his or her family to maintain nonimmigrant status in the United States throughout the waiting period, consular processing through the NVC is sometimes the only option for those who cannot.
Step 3: Form I-829
After an investor has entered the United States as a conditional permanent resident, he or she will have two years to prove that the EB-5 investment has created 10 full-time jobs. Within 90 days of this deadline, the investor must file an I-829 petition for removal of conditions of permanent residence. The wait times for adjudication are available on the USCIS website, but investors can wait several years. The fact that the investment must remain at risk throughout this process creates an additional hurdle for investors.
At the end of this process, investors are not guaranteed a green card, as the I-829 petition approval is based on whether the investment funds have created the requisite number of jobs. The EB-5 program requires that the investment be at risk throughout this period, meaning each investor faces some level of uncertainty. While investors are permitted to insure the investment with a third party, that insurance itself is also placed at risk if the third party goes out of business. Therefore, if a new enterprise fails before the investor has filed his or her I-829 petition, USCIS may deny the petition because the jobs no longer exist, meaning the investor may lose the investment and will additionally be ineligible for a green card.
The above factors mean that the EB-5 program is not suited for every investor. Chinese investors especially face potential wait times of more than six years between filing of the I-526 petition and adjudication of the I-829, meaning the investment is at risk during that time, and job creation must be timed within the appropriate two-year window. Investors have the option of instead applying for another employment-based visa, such as any one of the EB-1, EB-2, EB-3, or EB-4 programs, to gain entry to the United States and earn a green card.
The EB-5 program has specific requirements and poses significant risks for certain investors. As such, those wishing to apply for the program must consider the wait times and associated risks to their investments as outlined above and conduct their due diligence to determine whether the EB-5 program is right for them.
