The US District Court for the Northern District of California issued a decision today in Behring Regional Center’s lawsuit seeking a preliminary injunction to stop United States Citizenship and Immigration Services (USCIS) from deauthorizing previously designated EB-5 Regional Centers.
“We are relieved to have the courts favor in issuing the preliminary injunction stopping USCIS from canceling EB-5 regional centers,” said Colin Behring, CEO of the Behring Companies. “The ruling is strong and clear in its language that EB-5 is to continue immediately. Our investors asked us to do everything we could to fix this and our team at Behring and the EB-5 Investment Coalition delivered. This was our third lawsuit with USCIS, and with this ruling, we are heading toward victory on the merits of all of them.”
EB-5 regional centers can continue working immediately, the verdict said
Congress enacted the Reform and Integrity Act in March 2022, reauthorizing and revamping the system that oversees regional centers. The suit alleged that the USCIS wrongly interpreted the Act as deauthorizing the more than 600 previously authorized regional centers and putting an end to their revenue streams. The lawsuit said the agency’s guidance violates the Administrative Procedure Act (APA) and misinterprets the new EB-5 law enacted by Congress.
The court found that the USCIS “violated the APA” and added that it “was almost certainly wrong in assuming that the Integrity Act affirmatively deauthorized existing regional centers, so the agency was almost certainly wrong to announce that the centers are no longer authorized.”
The court has ordered USCIS to not require previously designated regional centers to go through steps to be reauthorized. It also required that the USCIS process new I-526 petitionfrom immigrant investors investing through previously authorized regional centers. The ruling is a big win for the EB-5 industry and investor stakeholders.
“We are so pleased that the court recognized the true congressional intent. Existing regional centers can now operate and accept new investors,” says Laura Foote Reiff, a partner at Greenberg Traurig LLP, which represents Behring in the lawsuit over the USCIS guidance. “This is a program that should be embraced by the agency and the country as it brings much-needed revenue into the US and helps with job creation.”
Behring regional center wins case against USCIS and clears the way for EB-5 processing
Before issuing his ruling, Judge Vince Chhabria concluded with an analogy, likening Behring and other regional centers to members of a club created by Congress that gave the USCIS the responsibility of admitting members, creating club rules, and club privileges. But with the Integrity Act, Congress made many changes to the club’s structure but failed to specify whether existing members could, like before, remain members. Then the agency removed all existing members, based on what they thought Congress wanted.
“The agency was wrong to act based on that assumption,” Chhabria said. “But it does mean that, for now, the agency must continue treating the existing members as members of the newly revamped club. The motion for a preliminary injunction is granted.”
The lawsuit follows the firm’s 2021 legal victory when a federal judge vacated the EB-5 Modernization Rule that was implemented unlawfully by the Department of Homeland Security in 2019.
“The nationwide injunction decision is huge for the US EB-5 visa program industry and means investors can file immediately, especially for the new fast track categories created by the Reform and Integrity Act signed by President Biden on March 15, 2022,” says Bernard Wolfsdorf an LA-based immigration lawyer. “There will be a frenzy of filings with all the pent-up demand.”
The number of job vacancies has spiked by more than 72% representing about 401,900 positions compared to the first quarter of 2020. Job vacancies in Q1 2022 surpassed the previous record high numbers recorded in Q4 2021 by nearly 3%, representing 24,900 more vacant positions.
The healthcare and social assistance sector reached another all-time high at 136,800 vacancies. Labor shortages in this sector were high before the pandemic, but COVID-19 pushed up demand even further. Compared with the first quarter of 2020, vacancies rose nearly 91% (65,100 positions) in the first quarter of 2022.
The construction sector is also seeing record-high numbers of vacancies. In Q1, Permanent Residence Canadaconstruction employers were seeking to fill 81,500 vacant positions. Quarter-over-quarter, the construction sector saw an increase of over 7% (5,400 positions) from Q4, 2021.
Job vacancies are continuing on an upward trend in the manufacturing and retail trade sectors. Vacancies in manufacturing peaked at 87,400 last quarter, and retail trade employers were seeking 114,600 jobs.
There was little change in professional, scientific, and technical services. Employers in this sector were looking to fill 68,800 positions, little changed from the record high reached last quarter.
Accommodation and food services had about 133,800 vacant positions in Q1. Despite the large number, it had actually decreased by about 12% from the previous quarter.
On a national level, the unemployment-to-job vacancy ratio was 1.3 in the first quarter, down from 2.2 in the same quarter of 2020. Before the pandemic. This means the pool of unemployed workers has shrunk as job vacancies continue to grow.
The unemployment-to-job vacancy ratio also varied across Canadian provinces. While there was less than one unemployed person for every job vacancy in Quebec and British Columbia, there were almost four unemployed people for every vacancy in Newfoundland and Labrador. A lower ratio indicates a tighter labor market and possible labor shortages.
Canadian employers are facing significant hiring challenges. In the first quarter, there were nearly 34 newly hired employees for every 100 job vacancies. By comparison, in Q1 of last year, there were about 48 new hires for every 100 vacancies and 82 in the first quarter of 2016 when comparable data first became available.
When looking at sectors with high demand, accommodation, and food services employers hired about 23 new employees for every 100 vacancies. Health care and social assistance also hired about 23. Professional, scientific, and technical services employers hired about 50.
According to the Canadian Survey on Business Conditions from January 4 to February 7, recruiting skilled employees was expected to be an obstacle for nearly two-fifths of businesses, and retaining employees was expected to be an obstacle for about 30%.
With the Canada startup visa, you, your spouse, and your children can move to Canada and take advantage of the high labor demand.
Portugal is among the top ten countries in the world that attracts the most millionaires.
This year, around 88,000 millionaires are expected to move to a new country, with Portugal expected to receive 1,300 new millionaires, putting the country in sixth position in the countries that attract the most millionaires.
The ranking is led by the United Arab Emirates, with 4,000 millionaires expected to arrive there by the end of 2022, according to the “Henley Global Citizens Report”, carried out by Henley & Partners.
“The forecast for 2022 reflects an extremely volatile environment around the world. By the end of the year, 88,000 millionaires are expected to have moved to new countries, 22,000 fewer than in 2019, when 110,000 moved.”
The United Arab Emirates — which has become an interesting hotspot among wealthier investors — ranks first on the podium when it comes to millionaire arrivals. The expected arrival of 4,000 millionaires this year represents a 208% boom compared to the flow recorded in 2019 (1,300).
“This influx of millionaires is due, in part, to the country’s adaptable and responsive immigration policies, especially designed to attract private wealth and international talent,” explains the London-based consultant.
The podium is completed with Australia and Singapore, with an expected gain of 3,500 and 2,800 millionaires, respectively, then Israel (2,500), Switzerland (2,200), United States of America (1,500), Portugal (1,300), Greece (1,200), Canada (1,000) and New Zealand (800).
“The richest individuals are extremely mobile, and their movements can provide an early warning signal for future trends in countries. Countries that attract wealthy individuals and families tend to be robust, with low crime rates, competitive tax rates and attractive business opportunities,” explains Andrew Amoils, head of research at New World Wealth.
Despite not appearing in the top ten of the list, Henley & Partners also points out that a large number of millionaires are also expected to move to Malta, Mauritius and Monaco.
Parliament has rejected the proposals of the PCP, BE and PAN to end golden visas, as well as the proposal by Chega who called for the enlargement of the regime.
“The way and the time is one of evaluation” about a “successful legal amendment that safeguarded the dimensions that are important in this regime”, said the socialist deputy Pedro Anastácio.
The PS parliamentarian, the party that voted against all these proposals, argued that “the last legal change made to the regime responded adequately to the housing dimension, allowing to safeguard and maintain the regime’s dimension”. For Pedro Anastácio, the changes represent “something that is also important and fundamental for the country, which is the promotion of productive investment, job creation, investment in urban requalification, cultural heritage and in activities of high environmental or social value”, adding that “it is necessary to assess the effects after the introduction of this change” in order to assess whether the desired balance has been achieved.
The deputies only approved a PSD recommendation to the Government for urgent regulation that would allow the operation of the online platform and the submission of online applications for golden visas for real estate purposes in the Autonomous Regions of Madeira, the Azores and interior.
While the debate and voting took place, it was announced by the Portuguese Association of Real Estate Developers and Investors (APPII) that the platform was now operational.
Jornal de Notícias reported last Tuesday that the lack of regulation of the law that changes criteria for the attribution of Residence Permits for Investment, which came into force in January, was preventing the submission of new applications to the golden visa regime.
The following day, the Secretary of State for the Presidency of the Council of Ministers, André Moz Caldas, stated that the law in question did not need to be regulated and could be “directly applicable”. “From my point of view, the law amended in the past is directly applicable and does not require any special regulation”, said the Secretary of State.
This morning, APPII announced that applications for the so-called golden visas were resumed and several new applications for Residence Permits by Investment (ARI) have already been submitted. In a statement, APPII adds that, “after a round with its associates, it confirmed that the platform to insert new ARI of the Foreigners and Borders Service (SEF) is finally operational”.
During the plenary debate, PSD deputy Sara Madruga da Costa defended the “urgency to proceed with the rapid operationalization of the SEF portal” within the scope of the latest changes, adding that “this is an excellent opportunity to put into practice the so often touted territorial cohesion”.
No new changes will be brought in relation to golden visas and the online platform for submissions is now up and running again.
A group of immigrants are suing the U.S. government over delays in processing their citizenship applications. The 13 plaintiffs filed a suit against the federal government on Wednesday for what they call unreasonable delays after submitting their naturalization applications in spring 2020.
The suit, filed by the American Immigration Council on behalf of the immigrants, names U.S. Citizenship and Immigration Services (USCIS) as well as the National Archives and Records Administration, which operates underground storage facilities housing immigration paperwork. These mile-long caves beneath Kansas City largely shut down due to the COVID-19 pandemic.
The closures meant that thousands of U.S. immigration applications were left languishing underground. Without those papers detailing an applicant’s immigration history, USCIS is unable to approve citizenship applications, leaving scores of immigrants stuck in limbo.
In March, the National Archives fully reopened its underground storage facilities, according to the Wall Street Journal, and there are now 87,500 pending requests for immigration papers, down from 350,000 in January.
Yet USCIS still isn’t prioritizing citizenship applications over other immigration requests, which could mean thousands of would-be citizens won’t be able to vote in the upcoming midterm elections.
“We’re concerned that if they’re not proactive and don’t focus on naturalization applications, they have a risk of harm that no one else does,” Leslie Dellon, staff attorney at the American Immigration Council, told the Wall Street Journal.
On April 29, USCIS hosted a listening session to inform EB-5 Stakeholders of changes to the regional center program and address their issues and concerns related to the EB-5 Reform and Integrity Act. Crucially USCIS clarified at this session that regional centers which existed prior to the program’s lapse of authorization in June 2021 are no longer approved and designated as regional centers. Per the language on USCIS’ website “Entities seeking to be designated as a regional center are required to file Form I-956, Application for Regional Center Designation. The USCIS will be publishing this new form, including the form instructions, with additional information regarding the filing process by May 14, 2022.”
HOW WILL THIS AFFECT REGIONAL CENTERS AND INVESTORS ?
USCIS’s announcement of this policy comes as somewhat of a surprise, as the text of the EB-5 Reform and Integrity Act does not mention a requirement for existing regional centers to re-designate under the new law. Rather, the policy is based on USCIS’ interpretation of the bill. First and foremost, the policy places existing regional centers in a state of limbo, as they are no longer legally considered regional centers under the EB-5 Reform and Integrity Act. These “entities” as USCIS refers to them, will need to have an approved I-956 to be re-designated as regional centers and continue sponsoring new I-526 petitions in the future.
This obviously raises issues for investors with an approved I-526 who have yet to receive their EB-5 visa, as their petition is no longer associated with a designated regional center. However, USCIS has announced that investors may still be able to establish eligibility, “by demonstrating compliance with other applicable requirements (primarily investment and job creation, including indirect job creation as provided under the former statute).”
Most concerning about this policy is how it will affect regional centers who do not apply for re-designation. As per the USCIS announcement, regional centers only need to file I-956 if they wish to support new investor petitions in the future. Additionally, the agency will no longer accept Form I-924A, Annual Certification of Regional Center, from existing regional centers who are not filing for re-designation. This may lead to a situation where USCIS will have little oversight over existing regional centers (with active projects and investors) that choose not to apply for re-designation.
It seems, USCIS’ decision to deauthorize all existing regional centers and require them to file Form I-956 might have unintended consequences. Rather than allowing the EB-5 Regional Center program to start up again smoothly, the agency has created hurdles for the EB-5 industry after it has already spent nearly a year in limbo waiting for Congress to reauthorize the program. It is noteworthy that the agency’s decision to relinquish its oversight over existing regional centers who do not apply for re-designation runs counter the EB-5 Reform and Integrity act’s goal of ensuring integrity and accountability in the program. Litigation challenging the re-designation policy has already been filed by Behring Regional Center, but it will remain to be seen if USCIS is willing to budge.
In recent years, the EB-5 visa has seen a rise in popularity amongst Indian nationals who wish to emigrate to America. Indian Nationals received 17% of all EB-5 visas issued in fiscal year 2020 and that number is likely to increase in the coming years, especially after the pandemic and the USA EB-5 Reauthorization of March 2022. So what is the explanation for India’s recent EB-5 boom?
1. Increasing restrictions on other visa categories
One of the unique aspects of the US EB-5 visa program is its lack of restrictions. Immigrant investors need not worry about employment or education requirements; the EB-5 program only requires that participants invest in an American new commercial enterprise with legally sourced funds and that their investment create full-time American jobs. When compared to the restrictions on other employment-based visas it’s clear that the EB-5 program is significantly less restrictive.
2. The EB-5 program offers a faster path to Immigration
Other visa categories have a much longer timeline before an applicant can obtain a visa, such as the EB-2 Program which can take upwards of 10 years. Compare that to the EB-5 program, which currently has no backlog of Indian applicants, meaning that Indian investors can apply to receive an EB-5 visa as soon as their I-526 petition is approved.
Although the EB-5 Investment Amount usa requires a minimum investment of $800,000 (provided that the investment is in a Targeted Employment Area), it includes green cards for the principal investor, their spouse, and all their unmarried children under the age of twenty-one. Whether an investor has one child or four or more they could all potentially qualify for a green card under the principal applicant’s petition, which makes the EB-5 visa the most efficient option to obtain green cards for your family.
4. The EB-5 visa also offers more freedom once the investor is in the U.S.
The EB-5 investor is not required to live near their investment. They can purchase a home and live anywhere in the U.S. After living in the U.S., EB-5 investors and their families even qualify for in-state tuition fees.
5. Regional Centers Minimize Risk
The vast majority of immigrant investors utilize regional centers to minimize risk. Rather than creating a new commercial enterprise on their own, EB-5 investors invest in regional centers. This has several benefits, regional center projects are typically located in TEAs to ensure investors only need to invest a minimum of $800,000 to receive their EB-5 visa, and they also have easier job creation requirements. These benefits reduce the risk involved in investing in the EB-5 Program, and trusted regional centers often boast a near-perfect record of their investors receiving visas.
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The capital for an EB-5 investment can be obtained through a loan from a financial institute with the investor’s assets as collateral. The collateral, however, cannot be the very EB-5 assets the EB-5 applicant invest in. An investor will also need to prove to USCIS the legal source of funds used to purchase or obtain the assets used as the collaterals for the loan.
Can I apply for EB-5 while on H1b?
An H1-b visa holder can apply for an EB-5 visa while working in the United States and remain in valid status. If the I-526 petition is approved and a visa number is available when the H-1b visa holder is legally working in the U.S., an I-485 petition can be filed to adjust the applicant’s status to become a conditional permanent resident.
Borrowed money can be used as part of the EB-5 investment as long as it is secured by collateral from the applicant. Gifted money could also be authenticated for the purpose of EB-5 when the donor can provide clear documentation on the source of the gifted funds.
Can I work with EB-5 visa?
An EB-5 investor is eligible to work for any U.S. employees after becoming a conditional permanent resident or obtaining work authorizations. Investors do not need to work for the regional center through which they make the investment. If investors or dependents want to work for the very EB-5 business they invest in, they should be aware that their positions may not be used to fulfill the job creation criteria.
If applicants live in the United States as undocumented immigrants, they are generally not eligible for the benefits of the EB-5 program. This is because even if their I-526s are approved, they are not able to legally adjust their status in the U.S. since they don’t have legal status in the first place. If leaving the country and proceeding with consular processing, they will first be faced with immigration bars that might prevent them from entering the country for an extended period.
Do EB-5 investors get their money back?
EB-5 investors may get the full or part of their invested money back when their immigration and investment cycles are completed. Many regional centers would include the terms and conditions of this exit procedures in the investment agreement or other documents. USCIS also requires that EB-5 investors maintain their investment “at risk” during the two years of conditional permanent residency.
Does EB-5 really work?
The EB-5 Immigrant Investor Visa Program was created in 1990 by Congress to incentivize foreign investment and stimulate the American job market. The program not only benefits the U.S. with inflows of foreign capitals to underdeveloped regions or areas with high unemployment rates, but also offers foreign investors access to world-class jobs, education and healthcare opportunities. For instance, 7,889 foreign investors and their family members received immigrant visas through EB-5 in FY 2019, according to the U.S. Department of State.
Participating in the EB-5 program is a demanding process that requires planning and careful execution for both investors and their legal/financial representatives. The first step is to locate an EB-5 project, either through a regional center or via a direct investment opportunity. Once a project is selected, the investment is made and the required documents are prepared, an investor can file an I-526 petition to USCIS. If approval is issued and when the investor’s priority date becomes current, he or she can apply for an EB-5 visa at the U.S. consulate or file an adjustment of status petition if located in the U.S.
How does EB-5 investment work?
The amount of required investments for each EB-5 applicant varies depending on the location of the business an investor selects. If investing in a Targeted Employment Area, the investment threshold is $800,000. Project developers can use EB-5 investments as a powerful source of funds for their development projects. Existing businesses can also attract foreign investors with direct investment opportunities to scale up and create more jobs with the EB-5 capital.
How do I get my EB-5 money?
Regional centers usually have detailed terms and conditions on the return of investors’ EB-5 capital in the investment agreement or other documents. Investors need to review these documents with their EB-5 attorneys carefully to understand the exit strategies before any investment is made. Investors also need to understand that USCIS requires the EB-5 capital to be kept “at risk” during the conditional permanent residency, which means that investors can not get their EB-5 money back during this period if they want to keep their immigration benefits.
Can I get a loan for an EB-5 visa?
Generally speaking, prospective investors can take bank loans to participate in the EB-5 program. However, the loan must be secured by assets, and the collateral cannot be the very EB-5 business one invests in. Investors also need to submit to USCIS the thorough documentation on the terms and conditions of the loan.
How long does it take for EB-5 to work?
EB-5 processing times are case-specific. USCIS’ website publishes the estimated processing times of various EB-5 forms at different service centers. For an investor from a country without visa backlogs, once the I-526 is approved, he or she can either file a DS-260 and obtain an EB-5 visa to enter the U.S., or proceed with an I-485 application to adjust status while in the U.S. Upon approval, the investor can live and work without restrictions and start to enjoy the benefits of EB-5.
How long does the EB-5 process take?
The EB-5 process, which includes the processing of Forms I-526, I-485 and I-829, varies based on the workload of different USCIS service centers across the U.S. and other case-specific factors. USCIS updates its website on the estimated case processing times for each form, which can be used by investors as a general guideline. Investors coming from backlogged countries may experience longer waits.
How many EB-5 visas are issued each year?
About 10,000 visas are reserved every fiscal year for the EB-5 visa category. These visas are issued to EB-5 investors, their spouses and dependent children under 21. Each country can take up to 7.1% of the annual visa quota. Unused visas are allocated to investors from countries with high demands.
How much does an EB-5 visa cost?
In addition to the amount of investment and filing fees required by USCIS for the EB-5 program, investors may also need to pay for the legal, administrative and due diligence services associated with an EB-5 application. The required EB-5 investment is $900,000 for a project located in a Targeted Employment Area (TEA) and from $1,000,000 to $1,050,000 for a project in a non-TEA. Investors must also pay the filing fees for the EB-5 forms – I-526, I-485 or DS-260, and I-829. Many investors retain an immigration attorney to help them handle the processing and filing of their applications, and some might hire taxation experts for pre-immigration tax planning and due diligence teams to conduct research on project candidates, which might incur extra costs.
How much should I invest in EB-5?
The investment criteria of the EB-5 investment vary depending on the location of the project a foreign investor selects. If a project is located in a Targeted Employment Area (TEA), the minimum investment is $800,000. For projects in non-TEAs from $1,000,000 to $1,050,000. In March 2022, there were several significant changes to TEA designations. EB-5 investors should check the TEA-eligibility of a project before initiating any EB-5 applications.
Is EB-5 Worth it?
Since its inception in 1990, the EB-5 Immigrant Investor Program has helped thousands of foreign investors and their families realize their American dreams. With world-class education, healthcare and social welfare, the U.S. has a lot to offer to foreign individuals who can help develop the country. Unlike other visa routes that have strict requirements on the applicants’ age, education or business background, the EB-5 program is accessible for almost every foreign investor, as long as the required investment can be proven to come from legal sources.
Is EB-5 Expired?
Established by the U.S. Congress in 1990 in an effort to stimulate foreign investment, the EB-5 Immigrant Investor Program is a permanent visa program that has run successfully for over 30 years. The EB-5 Immigrant Investor Pilot Program, created in 1993, allowed investors to participate in the program through a regional center. Although it is not a permanent program, it has been consistently reauthorized. During the past years, there have also been strong incentives in the EB-5 legislation to make the pilot program permanent.
Is EB-5 Safe?
It is crucial for potential investors to understand that participating in the EB-5 program, by its nature, is to engage in an investment activity where gains and losses can occur. There is no guarantee for the safety of one’s capital in an EB-5 project. It is also required by USCIS that EB-5 investors need to maintain their investments “at risk” during the two-year conditional permanent residency. However, with thorough planning and due diligence, an investor can minimize their investment risks and increase the possibility of getting their investment capital back.
What happens to the money invested in EB-5?
The EB-5 capital from a foreign investor is used by a U.S. business to complete the selected project and create American jobs. It is also a common practice for regional centers to first deposit an investor’s money in an escrow account until the investor’s I-526 petition is approved by USCIS, in order to reduce the risks an EB-5 investor bears. For a direct EB-5 project, the EB-5 funds could be used to invest in inventory, equipment or other tangible properties.
What is golden visa USA?
The EB-5 Immigrant Investor Program is the American equivalence of the so-called “Golden Visa” program, which is used in many EU countries to attract foreign investment in exchange for the benefit of residency or citizenship rights. With an investment, a foreign investor, the spouse and their children under 21 years old can get U.S. green cards and potentially become U.S. citizens if other requirements are met.
What is the fastest way to get U.S. citizenship?
Although the United States provides several paths for foreign nationals to obtain citizenship, including family-based and employment-based immigration, the EB-5 Immigrant Investor Program is an efficient way towards U.S. permanent residency and potentially citizenship, while making a significant contribution to under-served communities and creating American jobs. The processing time of EB-5 varies on a case-by-case basis.
Who is eligible for EB-5?
To be eligible for the EB-5 program, investors need to be able to make the required investment in a U.S. business and create jobs. Potential investors must also be able to prove the legal source of funds for their investment to qualify. Unlike investment immigration programs from some other countries that have strict criteria on the applicants’ net worth, the EB-5 program does not impose such requirements on applicants. Investors also don’t need to show that they are accredited investors, as demanded by SEC for other types of securities offerings.
What is a “targeted employment area”?
A targeted employment area (TEA) is a rural area or a location with a high rate of unemployment. EB-5 investors who make their investment in a TEA can enjoy the reduced investment threshold. However, not all rural areas or regions of high unemployment qualify as a targeted employment area in the EB-5 field. The designation of a TEA is adjudicated as part of an investor’s I-526 petition. An investor must, in his or her petition, demonstrate that the location of the project meets the requirements of TEA.
What is included in calculating the investment amount?
In addition to the required investment amount in an EB-5 project, investors are also responsible to pay the filing fees of Form I-526, Form I-485 or DS-160, and Form I-829. Many investors also choose to retain services from legal, taxation and other professional teams during this process. For investors investing through a regional center, administration fees may also occur.
Must the entire amount of investment be made at the time of applying for the EB-5 Visa?
It is highly advisable that investors make the entire amount of investment required by the EB-5 program and keep full documentation on the source of funds at the time of filing an I-526 application. Insufficient investment or incomplete documentation may cause RFEs or denials from USCIS, which could be detrimental to an investor’s case.
Are there restrictions on the types of businesses in which the investment must be made?
Any lawful for-profit businesses, no matter which industry it is in or how it is structured, can be an EB-5 project. Some of the popular types of businesses include real estate, restaurants, medical facilities and infrastructure. The EB-5 business can be structured as a sole proprietorship, a partnership, a holding company, a joint venture, a corporation, an LLC or other types of entities. Nonprofit organizations don’t qualify for EB-5.
What are the job creation and investment requirements, and do I need to create them myself for the EB-5 Visa Program? How do jobs qualify for projects that are already under construction?
The EB-5 program requires investors to create 10 full-time positions for permanent residents and citizens of the U.S. For regional center projects, both direct and indirect jobs can be used to fulfill the requirements on job creation, and investors working with a regional center are usually less involved in the job creation process, as the regional center would take the majority of such responsibilities. For investors in a direct EB-5 investment who are actively engaged in the daily operation of the EB-5 business, the fulfillment of the job creation criteria can be a challenge. Investors who participate in a project already under construction must pay special attention in demonstrating to USCIS the connection of their investment with the jobs created. This can sometimes be questionable as different projects allocate the jobs created to investors in different orders. Investors should consult with a qualified immigration attorney before any investment is made.
Can I invest in a troubled or failing business where the investment results in saving the business?
It is possible to invest in a troubled or failing business for the purpose of EB-5, saving the business, keeping the existing jobs and creating new jobs. Investors who are interested in this route of investment needs to first identify an investment target that meets USCIS’ definition of “troubled businesses.” Investors also need to be able to provide adequate documents and financial information of the business to USCIS. Also, due to its “troubled” nature, investors in such investments may be exposed to higher financial risks that might endanger their investment benefits.
May two or more investors qualify for immigration based on a pooled investment in a single business?
It is possible for two or more investors to participate in the EB-5 program and enjoy immigration benefits based on a pooled investment. This requires careful planning and proper structuring of the job-creating enterprise. Each participant in the money pool needs to meet the investment threshold, and the allocation of jobs created by the enterprise needs to be strategically planned to ensure that each participant can meet the job-creating requirements. It is highly advisable that investors interested in this investment route discuss with immigration, corporate and securities attorneys before any investment is made.
Are the investors free to travel after obtaining conditional permanent resident status?
Conditional permanent residents, like all other permanent residents, are free to travel in and out of the United States. However, to keep one’s status, an EB-5 investor needs to pay attention to the physical presence requirements imposed on all green card holders. If an investor needs to be out of the U.S. for an extended period of time, it is of great importance that he or she applies for the necessary travel documents in advance to avoid any issues when trying to enter the country again as a permanent resident.
Is the immigration status granted to the investor valid indefinitely?
Once investors’ I-526 applications are approved, they obtain the status of “conditional” permanent resident, which is valid for two years. If all other requirements are met, they can then file I-829 applications at the end of their conditional permanent residency to remove the conditions. Upon approval, investors are granted 10-year green cards that can be renewed indefinitely as long as other requirements imposed on permanent residents are met.
What documents must be filed with the petition?
Although every case is unique and various supporting documents can be submitted to validify the case, generally speaking, an I-526 petition package must include the proof that the required amount of investment has been made by the investor in an EB-5 eligible project and the project has received or will receive the investment. USCIS is also looking for documents with a detailed description of how the investment funds were obtained by the investor through legal means. Investors also need to include a business plan in the application packages, explaining how the required jobs will be created by the money they invested.
What documentation must be presented to prove that the investor’s funds came from a lawful source?
Documents that can be used to prove the legal source of funds for an EB-5 application include tax return documents, pay stubs, bank statements, trading/bonds/stocks and other securities statements. If the principal petitioner obtains the investment funds as a gift from parents or other relatives, a legal declaration and documents to demonstrate the legal source of funds from the donors are also needed.
What is the procedure for an investor to qualify as an immigrant based on the investment?
To obtain U.S. permanent residency through the EB-5 program, an investor needs to first locate a qualified EB-5 project and retain legal, tax and other necessary professionals. After due diligence is completed, the investor can start working on transferring the required amount of funds to the selected EB-5 project, while his or her immigration attorneys prepare and files an I-526 petition on the investor’s behalf. Upon I-526 approval, the investor becomes a conditional permanent resident of the U.S., either by filing an I-485 application to USCIS or a DS-260 to the U.S. consulate abroad. If the job-creating requirements are fulfilled, the investor can file an I-829 petition to USCIS at the end of his or her two-year conditional permanent residency. If approved, the investor becomes a permanent resident.
How many eb-5 visas are available every year?
Every fiscal year, about 10,000 visas are reserved for the EB-5 visa category, which are granted to EB-5 investors, their spouses and dependent children. Each country is allocated approximately 700 visas every year, while unused visas are distributed to investors from countries with high demands.
Is there an eb-5 visa waiting list?
About 10,000 visas are reserved every fiscal year for the EB-5 visa category and each country can take up to 7.1% of the annual visa quota. Because of this country limit, investors from countries where EB-5 visas are oversubscribed may encounter extended waiting time before visa numbers are available for them. Currently, only investors from mainland China and Vietnam are experiencing such visa backlogs.
Should I hire an immigration attorney to help me with EB-5?
Investors need to understand that EB-5 is a complex process that requires professional knowledge and expertise in U.S. immigration, securities, investment, taxation, among others. Any unadvised decisions may damage one’s immigration benefits. An immigration attorney not only helps the investor navigate the complexity of EB-5, but can also provide significant advice on other aspects of U.S. immigration, including travel, study and employment, to avoid accidental violation of U.S. immigration regulations that might endanger one’s EB-5 application.
Am I required to speak English to obtain a green card through the EB-5 program?
Unlike some investment immigration programs offered by other countries that impose strict criteria on the applicants’ language skills, business background and education, the EB-5 program does not require investors to speak English. However, investors need to make sure that they understand all the documents related to their EB-5 investment. This can be done by hiring a qualified translator. When attending the EB-5 visa interview at the U.S. consulate, investors may bring an interpreter to answer the questions from the consulate officers.
Am I required to be in good health to obtain a green card through the EB-5 program?
Certain health-related grounds could impact one’s admissibility in entering the United States. All non immigrants and immigrants, including EB-5 visa holders, are subject to these inadmissibility grounds. Prospective investors can find detailed descriptions of medical conditions that impact admissibility on USCIS’ website. EB-5 investors are also required to provide medical exam reports when applying for EB-5 visas at U.S. consulates abroad.
Are my family members eligible to qualify for an EB-5 visa?
Certain family members are eligible to enjoy the immigration benefits of EB-5 as the principal applicant’s dependent. Qualified family members include the investor’s spouse and unmarried children under 21 years old. Parents, grand parents and siblings of the investor cannot be included in the EB-5 application.
Can my adopted children qualify for an EB-5 visa?
The eligibility of adopted children as an EB-5 beneficiary depends on the age of the children when the application is filed, the age of the children when the adoption takes legal effect, the country of origin of the adopted children, among other factors. Investors with adopted children need to consult with a qualified attorney before starting the EB-5 process.
Can I apply for an EB-5 visa if I have been rejected or terminated in the past by USCIS for an L1, E2, B or other visas?
The EB-5 eligibility of a prospective investor with a history of other types of visa denials depends on the reasons and grounds for the visa rejection. Generally speaking, a criminal history, past violation of U.S. immigration, fraudulent statements and grounds of inadmissibility could negatively impact the application success of all types of U.S. visas. It is advisable that investors fully disclose their previous visa denials to their immigration attorneys to determine the eligibility for EB-5.
What are the cost benefits of attending a U.S. university and is my child eligible for lower tuition rates under the EB-5 visa program?
To many foreign investors, attending a U.S. university means access to a world-class education, a strong employment market and a bright future for their children. Generally speaking, once an EB-5 investor and their families obtain conditional green cards, they are considered permanent residents of the U.S. and can enjoy benefits correspondingly. Rules for resident and nonresident tuition and fees vary depending on the states where investors reside and the types of universities of the investors’ choice.
What is a regional center?
An EB-5 regional center is an USCIS-designated organization, sponsoring capital investment from foreign investors to projects that fall under the USCIS-approved locations and industries. Participating in the EB-5 program through a regional center lightens the burden of job creation, in that both direct and indirect jobs can be counted to meet the job-creating requirement of EB-5. Regional centers can also help investors attend to the day-to-day operation of the new commercial enterprise and still ensure that investors have sufficient involvement in the EB-5 business to qualify for the program.
How can I find information on approved regional centers?
Investors can refer to USCIS’ website, where a list of designated regional centers in each state in the United States is published and updated regularly. The majority of regional centers would provide information on their completed projects, current offerings and track record on their own website.
How are EB-5 investments affiliated with regional centers structured?
There are different ways that EB-5 investments can be positioned in the capital stack of a project affiliated with a regional center. And there are no rules on the ratio of EB-5 capital versus other types of financing. In the most desirable situation for investors, EB-5 loans are placed at the top of the capital stack with an appropriate portion comparing with funds from other financing.
Are EB-5 regional center financing options cheaper for companies than other sources of capital?
Since the top priority for the majority of EB-5 investors is to obtain immigration benefits and preserve the invested capital, there is usually no high expectations on the return of investment for EB-5 loans. In many cases, using EB-5 funding as a source to sponsor a project is cheaper than traditional financing and other alternatives, where high interest rates are imposed and high returns are expected.
What risks do investors face in EB-5 regional center investments?
Participating in the EB-5 program is engaging in an investment activity, where gains and losses can occur. There is no guarantee for the safety of one’s capital in an EB-5 project. It is also required by USCIS that EB-5 investors need to maintain their investments “at risk” during the two-year conditional permanent residency. However, with meticulous planning and thorough due diligence, an investor can minimize their investment risks and increase the possibility of getting their investment capital back.
What risk do companies have in accepting EB-5 investments?
Companies accepting EB-5 investments must follow rules and requirements of EB-5 to protect the immigration benefits of their foreign investors. For instance, the money taken from investors must be used to create enough jobs; the type of positions created must fulfill USCIS’ requirements; the jobs need to be maintained during the conditional permanent residency of EB-5 investors. Business owners should consult with qualified immigration and securities attorneys before accepting any EB-5 financing.
What kind of background information is USCIS concerned with?
USCIS may look into investors’ criminal records and health-related grounds for inadmissibility. Investors will also be checked against the national security databases and databases related to money laundering or financial crimes.
When do I choose an EB-5 project and sign documents?
There are many factors to consider when it comes to selecting an EB-5 projects, and thorough due diligence on the track history, reputation and credibility of the regional center and other project sponsors is essential before any investment is made. When investors feel confident that they have put their money and the future of their families in good hands, investors should review all the documents with the help of their immigration attorneys to make sure there is no confusion or omission on the details of some significant aspects, including the EB-5 timeline and exiting strategies.
When do I prepare the I-526 petition / conditional green card application?
The preparation of the I-526 petition is usually done with the help of an immigration attorney and the sponsors of an EB-5 project. Investors need to submit documents on their personal information, as well as proof of the legal source of funds used for the investment. It is recommended that the preparation starts as early as possible to allow enough time for collecting necessary documents. Once an I-526 petition is approved and if the investor’s priority date is current, he or she can either file an I-485 application to USCIS and adjust the status, or file an DS-260 petition to apply for a visa at U.S. consulates overseas.
When do I receive my conditional green card after applying for EB-5?
Upon the approval of an I-526 petition, and if a visa number is available, the investor can either file an I-485 application to USCIS and adjust his or her status, or file and DS-260 petition to apply for a visa at U.S. consulates overseas. Investors will then become conditional permanent residents and receive their two-year green cards. Investors coming from backlogged countries may experience longer waits after the approval of I-526s.
When do I receive my permanent green card after applying for EB-5?
Ninety days before the second anniversary of one’s conditional permanent residency, an investor can start filing an I-829 application to USCIS to remove the condition on his or her green card. The submitted documents must prove that the job creation requirements have been fulfilled. Upon approval, the investor will be granted a permanent green card that is valid for 10 years and can be renewed indefinitely if other requirements are met.
Can my permanent green card be taken away? How do I keep my permanent green card after I receive it?
Just like permanent residents of the United State who receive their status through other means, EB-5 investors, after becoming a green card holder, are subject to the physical presence requirements. If an investors needs to be out of the U.S. for an extended period of time, it is of great importance that he or she applies for the necessary travel documents in advance to avoid any issues when trying to enter the country again as a permanent resident.
How much time must I spend in the U.S. each year to keep my permanent residency?
The physical presence requirements on green card holders depend on many factors. Generally, a permanent resident should not be absent from the United States for more than six months per year. Otherwise, his or her status might be deemed abandoned. It is also advisable for an investor to keep genuine ties with the United States, including having a valid driver’s license, keeping a U.S. mailing address, etc. If an investor with a green card needs to be out of the U.S. for an extended period of time, it is of great importance that he or she applies for the necessary travel documents (re-entry permit) in advance to avoid any issues when trying to enter the country again as a permanent resident.
What is the difference between permanent residency and citizenship?
An EB-5 investor becomes a permanent resident of the United States when the I-829 petition is approved by USCIS. Then he or she is eligible to travel, live, study and work freely in the U.S. Although permanent residents can enjoy many benefits as U.S. citizens, they do not hold U.S. passports. Their rights are also limited when it comes to voting, running for public offices, and applying for federal employment. EB-5 investors become eligible to apply for naturalization after obtaining and successfully keeping their green cards for five years.
Am I entitled to keep my citizenship from my country of origin?
The U.S. doesn’t require its citizens to renounce other citizenship when applying for citizenship. An EB-5 investor is eligible to apply for naturalization after obtaining and maintaining permanent residency for five years, without having to abandon the citizenship of his or her country of origin. However, some countries don’t allow dual citizenship for their citizens. Investors need to check the relevant regulations of their countries of origin before applying for citizenship of the U.S.
What is meant by the requirement that the investors’ assets must be “lawfully gained”?
The investors’ funds used for their EB-5 applications could come from a large variety of sources, including employment earnings and bonuses, sales of business assets, inheritance, gifts, stocks, home equity loans, loans from financial institutions secured by investors’ assets. Funds from the above-mentioned sources could all be deemed “lawfully gained” as long as investors can provide adequate and convincing documentation. The demonstration of the legal source of funds is a challenging task and needs strategic planning. Investors should consult with their immigration attorneys to work out a suitable strategy.
Can money gifted by a parent or other relative be used for an EB-5 investment?
Gifted money from parents or other relatives could be authenticated for the purpose of EB-5. Investors must provide a legal statement to declare the donor relationship. The donor will also need to provide clear documentation on the source of the gifted funds.
Would my global income and assets be taxable in both my country of origin and in the United States?
The United States requires its residents to report taxes on their global earnings. EB-5 investors usually become liable to U.S. taxes after receiving their conditional green cards, and thus will be taxed for incomes earned domestically and abroad. There are tax treaties between the U.S. and other countries that, if used appropriately, could help investors avoid dual taxation or reduce tax liabilities. It is important for EB-5 investors to consult with tax professionals and conduct effective pre-immigration tax planning.
We work to promote the importance of acquiring a new citizenship and today we highlight the value of the USA Citizenship to all investors considering the USA EB5 Visa by Investment program alongside their families.
Right to Vote: U.S. citizens have the civic duty and privilege to participate in democratic elections and vote for their candidate of choice in local, state and federal elections.
Sponsor Family Members: As a U.S. citizen you can sponsor family members, including parents, children, spouses and siblings, living abroad for their green card.
Citizenship for Children: In most cases, children under the age of 18 born outside the country can derive U.S. citizenship from their U.S. Citizen parents.
Federal and state employment: U.S. citizens can seek federal and state employment across a wide range of government departments. Many Federal jobs and benefits are only granted to U.S. citizens.
Financial Aid: If you are a U.S. citizen and a college student in need of financial support, there are financial grants and college scholarships available for you.
Apply for U.S. passport: U.S. passports are granted only to U.S. citizens ensuring assistance by U.S. Embassies or Consulates when traveling abroad. This passport also comes with Visa access to over 180 countries.
Become an elected official: U.S citizens can choose to run and hold positions in public office.
Keep Citizenship of Another Country: A naturalized citizen can maintain dual citizenship.
Participate in a Federal jury: U.S. citizens are chosen at random to participate in a federal jury to help determine the guilt or innocence of an accused.
Seek government benefits: Only U.S. citizens may qualify for certain government benefits.
For foreign nationals with the necessary capital, the EB-5 program can be an excellent way to obtain permanent resident status in the United States. Unlike other immigrant visa options, the EB-5 visa requires no U.S. employer to act as a sponsor, nor does it require any specialized knowledge, skills, or experience. Further, the EB-5 program is not limited to foreign nationals from specific treaty nations.
Upon making a qualifying investment and receiving approval from United States Citizenship and Immigration Services (USCIS), an EB-5 investor, his or her spouse, and any unmarried children under age 21 will be granted conditional permanent residence. Two years later, if the investment has proven to meet the program’s requirements, the investor and his or her family will have the conditions removed from their residency status. Five years after first receiving conditional permanent resident status, they can become naturalized citizens.
If you are interested in learning more about the benefits of an EB-5 visa or the EB-5 program generally, please contact us.
The Immigration by Investment programs are offered by My Global Citizenship™. The above timeline is an estimate provided for information purpose only based on experiences with past clients. Processing time and costs will vary depending on a number of factors. My Global Citizenship™ is not responsible for any changes to the estimations above; we can provide specific time and cost estimates on an individual basis.
Please talk to our Consultants for the most up-to-date information.
Fees charged by My Global Citizenship™ is excluding the government and legal entity fees. For residency and citizenship separate fees have to be paid to government at each stage. These fees depend on the number of applicants and the complexity of the process.
For Advisory fees charged by My Global Citizenship™ and exact quote based on your family combination, please contact us.
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