The EB-5 investment process is generally a long one. Historically, United States Citizenship and Immigration Services (USCIS) has been known for slow turnaround times on EB-5 visa adjudication. To begin the EB5 investment process, foreign nationals must submit Form I-526, which is usually prepared by an immigration attorney. The form must demonstrate that the investor has made the minimum investment in a qualifying EB-5 project and that said project will create the required amount of jobs. Because Form I-526 petitions require accompanying documentation and each investor’s circumstances are different, there is no set processing time that investors can expect. Understandably, this can cause investors to become frustrated, and it also leads to major inconveniences.
Lengthy Processing Times Can Thwart Investor’s Plans
More often than not, the EB-5 investment threshold can encompass a family’s entire life savings. As of February 2022, the amount is $500,000 for targeted employment area (TEA) projects, but it has been higher in the past and is expected to increase once again in March 2022. In addition to the minimum investment, investors also need to have the funds to pay for USCIS filing fees, their attorneys, and the cost of relocating to the United States. With so much at stake, investors understandably expect USCIS to process their petitions swiftly.
More than a business investment, the EB-5 process is a pathway to permanent residency and even citizenship for foreign investors and their families. Upon completion of the EB-5 process, the investor and their immediate family—including children younger than 21—are granted permanent resident status. It is important to note that once an investor’s children turn 21, they are considered to have “aged out” of the process and are no longer eligible for permanent resident status. Thus, the sooner I-526 petitions are adjudicated, the better for investors who have children. Faster adjudication is also preferable as businesses can face challenges that cause them to make unexpected changes, which lower their chances of approval. USCIS does not allow major changes to be made to a business during processing, so approval chances are much greater if the petition is adjudicated efficiently.
Not every I-526 petition is automatically approved. Denials can happen for a number of reasons, including failure to provide required documentation or investing capital in a non-qualifying project. In the case of a denial, EB-5 investors have the option to try to recover their funds or appeal the USCIS decision. The sooner they receive their denial, the greater the chances that whichever action they take next will be successful.
There is certainly room for improvement in the EB-5 investment industry, including the processing time for I-526 petitions. In February 2022, the draft of an EB-5 reform bill was leaked, which is expected to be brought to Congress on March 11, 2022. The draft proposes significant changes, including an increase in investment thresholds and the reauthorization of the regional center program.
