A LEADING LUXURY IMMIGRATION LAW FIRM

A good rule of thumb is to try to stay in the U.S. for at least half of each year, or it may be deemed that they have abandoned their permanent residency status. This presence does not need to be continuous as U.S. residents can travel. Extended absences, particularly those over six months, may also disrupt the continuous residency requirement for naturalization.

You should also bear in mind that an EB-5 applicant must enter the United States within 180 days after they received their EB-5 visa. The applicant must then establish residency in the United States. Evidence of intent to reside includes opening bank accounts, obtaining a driver’s license or social security number, paying state and federal income taxes, and renting or buying a home.

On October 11, 2023, the US Citizenship and Immigration Service (USCIS) provided their long-awaited guidance about the timeframe in EB-5 Reform and Integrity Act of 2022 (RIA) to satisfy the “at risk” requisite of the EB-5 visa. For pre-RIA, the sustainment period is the two years of their Conditional Residence. For post-RIA is “two years from application” However, the start of this two-year clock is ambiguous, needs further clarification, and expectations to receive EB-5 capital back in two years is unrealistic as this depends on the terms of the Partnership Documents and when the Project gets liquidity. Also, their interpretation is non-binding, is not yet in the USCIS Policy Manual and is likely to be challenged in courts.

Along with the creation of the Reserved Visa Categories the EB-5 Reform and Integrity Act of 2022 (RIA) also created the Unreserved Visa Category. It consists of 68% of the annual allotment of EB-5 visas to be issued. Their I-526 Petitions may not get processed as fast as those for rural, priority processing projects whose target average processing time is 4 months.

Further, if you were born in China, and invest in “unreserved visa” project, you may face great delay in getting your EB-5 visa. As of  September 2023, there are nearly 20,000 EB-5 from China, not counting their spouse and children, who already have their I-526 Petitions approved and are waiting for visa availability, which is subject to a 7% country cap. There are also, nearly 2,400 EB-5 Investors from India in a similar situation.

EB-5 Visa retrogression occurs when there are more people applying for EB-5 Visas from any given country than there are available visas for said country in a given fiscal year. As a result, the U.S. government puts a hold on issuing more visas, causing a backlog or delay for applicants. It essentially means that prospective EB-5 Visa recipients have to wait longer than usual to get their visas, akin to a traffic jam in the immigration process. This is a very similar situation to the EB-2 and EB-3 retrogressions facing Indian born applicants.

As of January 2024, EB-5 from China that application before the EB-5 Reform and Integrity Act of 2022, are facing an 8-year retrogression. Those from India are facing a 3-year retrogression.

Retrogression is something to avoid at all costs because it creates substantial challenges and uncertainties for EB-5 Visa applicants, affecting their immigration plans, financial stability, and overall well-being. The good news is that applicants can protect themselves against the risks and effects of retrogression by analyzing which EB-5 categories have the most visas available.

Since there is a 7% visa cap per country, China and India became oversubscribed pre-RIA. If it were not for the RIA Reserved Visa categories, new EB-5 applicant from these two countries would also have to wait several years for a visa. Even though by looking at the Visa Bulletin one will see all EB-5 Reserved Categories as “Current” for India and China, it’s imperitive to speak with your immigration counsel and regional center to hear the latest statistics of petitions filed to estimate which categories will retrogress sooner.

The areas where the U.S. Congress wants to direct EB-5 visa are known as Targeted Employment Areas (TEA). 

The Reserved Visas are also known as “Set-Asides” as 20% of all EB-5 Visas are earmarked for Rural TEA Projects, 10% for High Unemployment TEA projects, and 2% for Infrastructure projects. Also, the RIA mandates that EB-5 Petitions for Rural Projects be given priority processing (goal of 4 months). This is not surprising, as the two US Senators that sponsored the law, Chuck Grassley (Republican, Iowa) and Patrick Leahy (Democrat, Vermont) are from rural states.

This provision is allowing EB-5 applicants from oversubscribed countries, namely China and India to be given a Visa number and get Conditional Residence as long as their visa category does not become oversubscribed.

The most common problem area for applicant has been insufficient documentation of the source and path of funds. Many people try to disclose the least possible information only to have the file returned with a request for further information. It is better to provide too much information rather than too little . In this era of terror alerts and suspicions about money laundering, USCIS adjudicators require a well-documented source and path of funds.

The two Green Cards offer the same rights and privileges. Under USCIS regulations, an applicant who is approved for an EB-5 visa receives a conditional Green Card that is valid for two years. One year and nine months after the conditional Green Card is issued, a three-month window opens up during which an applicant’s immigration attorney files another application with the USCIS to verify that all funds have been invested and that job creation requirements have been met. When the conditions are removed from the temporary/conditional Green Card, full resident status is granted and a permanent Green Card is issued to the investor. As said, both cards provide identical rights and privileges.

Technically, yes, a person from any country in the world is eligible to apply for an EB-5 visa. However, some countries have less than reliable tax and financial documentation methods which will require persons from those countries to actively work with their immigration attorney to provide adequate source of funds authentication to the USCIS.

The US Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation by attracting investments from qualified foreign investors. In return, the EB-5 Program provides a direct path to US Permanent Residency and US Citizenship for qualified foreign investors, their spouses, and unmarried children under 21  upon approval of their I-526E Immigrant Petition.

Over the years, the EB-5 Program has become very popular as it is a straightforward path to obtaining permanent U.S. Green Cards. Since 2000, more than 117,000 EB-5 petitions from across the world have become U.S. residents through the EB-5 program.

The areas where the U.S. Congress wants to direct EB-5 investment are known as Targeted Employment Areas (TEA). Since job creation is needed in these locations, the TEA minimum investment amount is US $800,000, instead of the US $1,050,000 required for more affluent areas. Although the lower TEA investment benefit has been part of EB-5 since its inception in 1990, the EB-5 Reform and Integrity Act of 2022 (RIA) established three Reserved Visa Categories and assigned 32% of all EB-5 Visas to them.

The Reserved Visas are also known as “Set-Asides” as 20% of all EB-5 Visas are earmarked for Rural TEA Projects, 10% for High Unemployment TEA projects, and 2% for Infrastructure projects. Also, the RIA mandates that EB-5 Petitions for Rural Projects be given priority processing (goal of 4 months). This is not surprising, as the two US Senators that sponsored the law, Chuck Grassley (Republican, Iowa) and Patrick Leahy (Democrat, Vermont) are from rural states.

This provision is allowing EB-5 Investors from oversubscribed countries, namely China and India to be given a Visa number and get Conditional Residence as long as their visa category does not become oversubscribed.