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Faqs

EB-5 Program Background

USCIS’ current policy allows for the investor’s money to be held in escrow at the Form I-526 petition stage until the investor has obtained conditional lawful permanent resident status. Investor’s money is deposited directly into escrow and his held there until the proper conditions for release are met pursuant to the project’s offering documents.

At the time of Return of Capital, the investor may chose to repatriate the money to a Non –U.S. account or keep it in the U.S. via a valid U.S. account in their name.

A potential investor is required to file a form I-526 for Alien Entrepreneur in conjunction with the documents supporting the business in which the investment is being made, which satisfy the EB-5 Investor Visa program requirements. Upon approval of this application, the investor and immediate family (spouse and single children under 21 years of age) may apply for an Immigrant Visa at the US Consulate, or if the investor is already located in the United States, apply for adjustment of status at any regional USCIS office. The entire application process may take nine to fifteen months to be fully completed.

There are no requirements with respect to prior business experience or education. The only requirement is that if the investment is made while in the United States, the investor must be accredited and meet certain suitability standards, with respect to income, net worth, etc. The investor also must prove unconditionally that the source of funds is legal, through the submission of proper documentation.

Rejection in the past does not disqualify the applicant, unless the reasons are related to immigration fraud or other significant problems. But past visa denials must be reviewed carefully with an immigration attorney. It is most important that all criminal, medical, or U.S. immigration history problems be disclosed to legal counsel in advance of application.

The most common problem area has been insufficient documentation of an EB-5 investor’s source 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 information. In an era when the Federal Government more closely scrutinizes foreign direct investment, USCIS case examiners require a well-documented source of funds.

The United States government created the EB-5 Immigrant Investor Program in 1990 in an effort to attract foreign investment and boost economic growth. Eligible foreign nationals can invest either $900,000 or $1,800,000 in a new or existing U.S. business. When investors demonstrate that their investment has created at least ten jobs for U.S. workers, they may receive green cards for themselves and their families.

Conditional Green Card

To maintain your LPR or Conditional Residence status (i.e. green card)- you have to keep from abandoning your residence in the U.S. You can have a trip out of the U.S. greater than 180 days without abandoning your residence. You can apply for a re-entry permit, which allows you to stay out of the U.S. for up to two years without abandoning your residence.

You can apply for a reentry permit (on form I131) before you leave the U.S. You can depart before the reentry permit is approved. With such a reentry permit, you can also return to the US at any point until the reentry permit’s expiration date. Reentry permits are issued for two years. At the expiry of these 2 years you can apply for a new one. The second such reentry permit will be granted for two years ago, but then onwards all subsequent ones may only be approved for one year at a time.

If outside of the United States for two or more years after being issued a reentry permit, a Returning Resident (SB-1) immigrant visa is necessary. While outside the United States, permanent residents are still required to file U.S. income tax returns, and failure to do so may jeopardize their status. Permanent resident status will be considered abandoned if a green card holder moves to another country and no longer intends to reside in the United States.

To begin, you must apply for immigrant visas for yourself and dependent family members located outside the United States through consular processing. After your EB-5 application is received and reviewed you, along with your dependent family members, will receive notification of civil forms and other information you’ll need in preparation of the immigrant visa interview.

In this article you can find a complete detailed description of the EB-5 immigrant visa interview.

You can apply for a reentry permit (on form I-131) before you leave the US. You can depart before the reentry permit is approved.

With such a reentry permit, you can return to the U.S. even after one year until the reentry permit’s expiration date. Reentry permits are issued for two years. You cannot renew a reentry permit, but you can return to the U.S. for a short time and apply for a new one. The second such reentry permit will be granted for two years ago, but subsequent ones may only be approved for one year at a time. An investor should consult with an immigration attorney.

Once you receive a green card, there are only two conditions required to keep it for life. First, you must not become removable or inadmissible. The most common way of doing this is to be convicted of a serious crime.

The second requirement is that you not abandon the United States as your permanent residence. As long as you are not planning to make your home somewhere else, then legally you are still a resident of the United States.

Short answer: There is a difference between “continuous residence,” which refers to a requirement for naturalization, and maintaining residence in the U.S. for green card purposes:

If you are interested in obtaining U.S. Citizenship as soon as possible and become a naturalized U.S. citizen, then as you receive conditional green card and enter country, you should aim to spend at least 180 days per year in the U.S.

If, on the other hand, you are interested in simply maintaining residency status and your green card, as long as you spend no more than 180 CONSECUTIVE days OUTSIDE of the U.S., you may fulfill this requirement. All decisions relating to maintenance of the green card should be discussed with an immigration attorney.

Rights of Permanent Residents

U.S. permanent resident status grants immigrants many rights and privileges. Green card holders may live and work anywhere in the United States, and they are fully protected under federal, state, and local law. Permanent residents are also free to travel abroad using a valid passport issued by their home country; however, in order to remain permanent residents, they must fulfill the physical presence requirement, which is discussed in the next section. In addition to these rights, permanent residents enjoy numerous other benefits, including access to world-class higher education and excellent health care. They also have the option to obtain U.S. citizenship.

Responsibilities of Permanent Residents

Along with the rights and privileges mentioned above, permanent residents are expected to fulfill certain responsibilities:

Permanent residents are required to pay all applicable state and federal income taxes. They must file income tax returns with the Internal Revenue Service (IRS), paying taxes on their gross worldwide income. Immigrants from countries with which the United States has tax treaties may be able to obtain credit for the payment of their foreign taxes.

Like all male U.S. citizens from age 18 to 25, male green card holders must register with Selective Service. Registration for Selective Service does not, in itself, entail service in the U.S. military, but it does mean that any male permanent residents from age 18 to 25 will be subject to the draft.

In addition to paying taxes and registering with Selective Service, permanent residents are expected to be of good moral character. In order to maintain permanent resident status, an immigrant must fulfill the physical presence requirement, which generally entails physically residing within the United States for six months or more in any given year. If a permanent resident spends more than one year outside of the United States, he or she must obtain a reentry permit or face losing permanent resident status.

If outside of the United States for two or more years after being issued a reentry permit, a Returning Resident (SB-1) immigrant visa is necessary. While outside the United States, permanent residents are still required to file U.S. income tax returns, and failure to do so may jeopardize their status. Permanent resident status will be considered abandoned if a green card holder moves to another country and no longer intends to reside in the United States.

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 ten full-time jobs. Within 90 days of this deadline, the investor must file an I-829 petition for removal of conditions of permanent residence.

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 (latest I-829 approval rates = 96% for FY 2016).

The EB-5 Program requires that the investment be at risk throughout this time period, meaning each investor faces some level of uncertainty. 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 I-829 petition is the final step in the EB-5 Immigrant Investor Program. Investors and their attorneys file this petition with USCIS and provide evidence that the investor has successfully fulfilled all of the program’s requirements, particularly that investor funds resulted in the creation of at least ten jobs. Upon approval of the petition, investors and their family members receive permanent green cards.

Follow to join (FTJ) applications are usually pursued when the principle either processes for her Green card at the U.S. Consulate and qualifying family members that are in the U.S. “follow to join” by filing adjustment of status green card applications or vice Versa. In the context of an EB-5 case, a qualifying family member (spouse or child under 21) can safely follow to join during the 2 years of conditional residency status of the principle.

The purpose of the Consular application is to ensure that the investor and family members undergo medical, police, security and immigration history checks before the conditional permanent resident visas are issued. At the interview, the Consular Officer may address these issues and information printed on the I-526 petition, including the nature of the investment. If the investor and family are in the United States, they may apply to adjust their status at the appropriate office of the USCIS.

I-526 Petition Related Questions

The unmarried child, if a part of the I-526 petition, will retain the green card. Once granted, the green card is not rescinded if the person later gets married.

If the I-526 petition has been filed then the principal applicant’s spouse may also obtain a visa.

However, Spouses of Children (dependent applicants) are not eligible to join the petition. As per EB-5 law, the green card may be given to only children below the age of 21 and unmarried at the time of application filing.

USCIS evaluates an investor’s I-526 petition based on the following five (5) criteria:

a) Investment Amount Meets EB-5 Requirements

An EB-5 investor’s I-526 petition must demonstrate that the minimum required capital was invested in a new qualifying business enterprise. For projects located within a TEA, the minimum investment amount is $900,000. Projects not located in a TEA, however, require a minimum investment of $1,800,000. In order to meet USCIS requirements, the invested capital must also be considered “at risk” and irrevocably committed to the project.

b) Investment Capital Was Lawfully Obtained

The EB-5 investor must also be able to clearly demonstrate on his or her I- 526 petition that the invested capital was obtained lawfully. The investor must trace the capital from its source—a salary, investment distribution, sale of property, loan against property (LAP), inheritance, margin loan based on marketable securities portfolio etc.—to the NCE. Funds given to the investor must also be traced back to their source.

What is meant that the investor’s assets be “lawfully gained”?

Under USCIS regulations, investors must demonstrate that investment assets were gained in a lawful manner such as income from a bona fide business, salary, investments, sale of a property, inheritance, gift, loan or other lawful means.

c) Capital Was Invested in a New Commercial Enterprise

An EB-5 investor’s I-526 petition must demonstrate that the necessary amount of lawfully obtained capital was invested in a NCE. An NCE is defined as a for-profit entity engaged in ongoing, lawful commercial business activity. The enterprise must have been established after November 29, 1990.

d) New Commercial Enterprise Creates Required Number of Jobs and Business Plan is Compliant

Investing in an NCE is not, by itself, sufficient for EB-5 visa approval. USCIS requires that the Job Creating Entity (JCE) or Entities to which investor capital is provided must create at least ten full-time jobs for each EB-5 investor involved. The business plan underlying the project must also meet USCIS requirements.

For those who make direct investments, these ten positions must be created directly by the JCE and they must be permanent, full time (at least 35 hours per week), and filled by W-2 employees. Positions filled by the investor’s family cannot be counted toward the minimum job creation requirement. The investor’s I-526 petition must demonstrate that at least ten jobs have been or will be created. To demonstrate future job creation, the I- 526 must include a clear description of the NCE’s hiring plan, including which positions will be created and when they will be filled.

When sponsored by a regional center, an NCE must still create a minimum of ten positions per EB-5 investor, and these must also be full-time, but they can be created either directly or indirectly through investment in a JCE. Indirect jobs are those created through the operations of the JCE. Any indirect jobs counted toward an investor’s minimum job creation requirement must be predicted and described in the investor’s I-526 petition through an economic report.

e) Investor Is Actively Involved in the New Commercial Enterprise

In addition to demonstrating that a sufficient amount of lawfully obtained capital was invested in an NCE—and that the investment was responsible for the creation of ten job positions—an I-526 petition must demonstrate that the EB-5 investor is actively engaged in managing the NCE. Those who make direct investments in an NCE may manage the enterprise, act as a member of the entity’s Board of Directors, maintain voting control, or otherwise demonstrate day-to-day involvement with the business. Typically, NCEs sponsored by a regional center are structured as limited partnerships. In such cases, an EB-5 investor is a limited partner, and within the framework of the Uniform Limited Partnership Act, he or she is considered sufficiently engaged in managing the NCE to satisfy the requirements of USCIS. The same applies for limited liability companies.

Conclusion

USCIS approves I-526 petitions that clearly and credibly meet the criteria listed above. Once approved, investors and their families can apply for their EB-5 visas. EB- 5 visas grant foreign nationals conditional lawful permanent resident status for two years, at which time the investor must file Form I-829, Petition by Entrepreneur to Remove Conditions.

Once an EB-5 investor has selected a project and made the necessary investment, he or she must complete Form I-526, Immigration Petition by Alien Entrepreneur, and submit it, along with all supporting documents, to U.S. Citizenship and Immigration Services (USCIS). USCIS will then evaluate the I-526 petition and determine whether the applicant is eligible for an EB-5 visa.

Immigration attorneys compile and submit I-526 petitions on behalf of their clients.

Once the investor files the I-526 petition, within 7-10 days they receive an acknowledgement or receipt number for the petition from the USCIS. This is called the I-797 (C). This serves as an acknowledgement that the USCIS has received all the paperwork submitted and will start reviewing the investor’s application.

If any information is missing or inadequate, USCIS may send a Request for Evidence (RFE), which will delay the approval of the petition.

The average processing time for Form I-526 varies, but is currently around 18-22 months.

Denial, Withdrawal, Fail, and Refund Related Questions

a) If the project does not create the jobs required

If an investor cannot demonstrate that the project has created ten qualifying jobs, then the I-829 can be denied.

b) Failure to travel to U.S. (maintaining residency) by investor.

Once the conditional green card is obtained, the principal applicant must fulfill basic continued presence conditions. Investors should consult with immigration counsel how best to meet these requirements.

Requirement of Maintaining Green Card During the Conditional Green Card Period:

For simply maintaining residency status and your green card active, an investor must spend no more than 180 CONSECUTIVE days OUTSIDE of the U.S. EB-5 visa holders should consult with their immigration attorney about continued presence requirements. The conditional Green Card does permit a holder to travel freely in and out of the United States.

I-526 petitions are most commonly rejected due to the applicant’s failure to demonstrate that investment funds were lawfully obtained, or for project-related issues.

Does rejection of I-526 affect the ability to apply for other types of US visas in the future?

No, it does not.

If the application is rejected, what is the procedure for a return of capital?

In the event of an unforeseen denial by USCIS, the offering documents for the investment will specify how funds are returned. These procedures are usually specified in the Limited Partnership Agreement and the Escrow Agreement.

Age and Sponsorship

The child will likely have a problem under this scenario. Very simply the immigrant visa must be available to be issued to the family before the son turns 21 (minus the time it took to adjudicate the I-526 petition).

However, the child status protection act (CSPA) can provide some relief for children who would have maintained eligibility but for the time USCIS took to adjudicate the immigrant visa petition. This relief takes the form of subtracting the time the petition was pending from the child’s age; this is the child’s “CSPA age.”

Provided that the child’s CSPA age is under 21 at the time the immigrant visa is issued to the principal, the child will be eligible to receive a visa based on age, even if the child’s real age has reached 21.

So, assuming the I-526 takes 14 months to adjudicate, the son won’t ‘age’ during that period. When the green card (either AOS or consular processing) is approved, the son will be his actual age minus the 14 months, if that puts him over 21, which will be likely, then he will not be eligible.

Timeline and Costs for the EB-5 Program

Visa backlogs mean that investors must wait to obtain their EB-5 visas after I-526 petition approval. The duration of the wait is determined broadly speaking by how many visa applicants are ahead of a particular investor in the visa queue. Because children keep aging until the parent-investor’s place in the queue is reached, in-depth discussion with immigration advisors is essential to informed decision-making and planning before investment.

The U.S. immigration system is quota-based, meaning there are generally limits on how many visas may be allocated in a year. There are approximately 10,000 visas available a year in the EB-5 category. Whenever demand by visa applicants exceeds the supply of visas, there is a backlog. While there have been long-standing backlogs in other green card categories, the backlog in the EB-5 category is relatively recent, having onset in mid-2015. Currently, there is a visa backlog for nationals from China and Vietnam. A visa backlog for Indian nationals is expected in Fiscal Year 2019 (ending September 30, 2019).

The standard Administrative Fee in the EB-5 industry is $50,000 USD, which is what an EB-5 investor is typically charged by the issuer.

See table below for total fees/costs (and the timing) incurred by a new EB-5 investor across their 5-year investment.

@I526 Filing (At the time of filing)
At the Time of Filing:
USCIS Filing Fee: $3,675
Attorney Fee: Approximately $12,000-$15,000
Administrative Fee: $50,000
Principal Investment: $900,000

@I829 Approval (Approximately 60 Months from above filing)
USCIS Filing Fee: $3,990
Attorney Fee: Approximately $5,000

At this time (approval of I-829), investment capital can be returned.

Does this include all fees across the board or are there any other out of pocket expenses that may arise?

There are no other fees. If the client chooses to hire 3rd party tax advisors, those fees are of course additional. This does not cover travel expenses to the U.S. etc., of course.

Citizenship

One of the most important rights legal permanent residents possess is the right to obtain U.S. citizenship after five years. There are two ways to become a U.S. citizen. One is by being born in the U.S. or being born to a U.S. citizen.

The other way is by naturalization. The first step in becoming a U.S. citizen through naturalization is to become a Legal Permanent Resident (LPR). Being an LPR for 5 years is one of the basic requirements for qualifying the naturalization. A second requirement is being physically present in the U.S. for 30 months during the 5 years prior to the naturalization application. Once becoming a U.S. citizen, an individual is entitled to benefits including the right to vote and hold public office.

Permanent resident status is not the same as U.S. citizenship. While permanent residents are able to live and work in the United States, they remain citizens of their home nation. As such, permanent residents cannot obtain U.S. passports, cannot vote in U.S. elections, and are not allowed to run for U.S. elected office.

U.S. citizens may be able to more easily bring into the United States family members who are foreign nationals. Citizens also have more access to federal jobs as well as federal assistance and benefits—including Social Security and Medicare. To become a citizen of the United States, a permanent resident must file for citizenship through USCIS.

EB-5 investors may apply for citizenship after maintaining their permanent resident status for five years. This five-year period starts when an EB-5 investor is granted conditional permanent resident status.

If you are interested in obtaining U.S. Citizenship as soon as possible and become a naturalized U.S. citizen, then as you receive conditional green card and enter country, you should aim to spend at least 180 days per year in the U.S. for a period of 5 years.

For Naturalization – the individual has to be physically present in the U.S. at least 50% of the time + 1 day for the last five years (so about 181 days per year). The clock for the five years of residence starts on the date of issuance of the first green card (during the conditional residence). Continuous residence is essentially that the individual does not have any trips outside of the U.S. greater than 180 days.

USCIS counts days out of the U.S. differently than we do. For USCIS, if you go on a cruise and leave Friday and come back Monday at 8:00AM, then you have been gone for four days. That is how they count, the day you left, the days in between, and the day you arrive back in the U.S.. If you have a trip out of the U.S. greater than 180 days, you are presumed to have broken your “continuous residence” for naturalization purposes.

RFE Related Questions

USCIS may issue an RFE for virtually ANY reason, although the following reasons for an RFE are not unusual:

a) Source of Funds:

The USCIS may ask the Investor for further clarifications / paperwork that the money they are using to invest in the fund are absolutely clean and they had control over that money when they invested that amount. All of this paperwork is done by lawyers on behalf of the investors and hence the SOF is the most important check for this. If the lawyer himself does not approve the SOF, then the application must not be made, In which case we will not take the case until we are fully satisfied.

b) Job Creation or other project-related issues:

The USCIS may raise an RFE relating to the Fund (LCR) for evidence that the jobs were or are or will be created before the money is returned, or other business aspects of the investment. This is where the project due diligence plays such an important role and hence one must look at mature projects, which are nearing completion. Such an RFE requires the funds to prove that the at least 10 jobs per investor have been created.

A Request for Evidence (RFE) from USCIS is a request for additional evidence to address and support specific parts of the pending I-526 petition. The petitioner may have a certain number of days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner (investor) does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives your response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.

Changes Surrounding the EB-5 Program

While it is technically possible, the general consensus is that it is extremely unlikely any EB-5 reauthorization law will include retroactivity language. This would unnecessarily penalize existing EB-5 investors, who abided by the laws and regulations in effect at the time and invested at the $500 thousand level. Any retroactive application of laws would likely result in litigation against the U.S. government and harm investor confidence in the program (and the U.S. government).

Basic Key EB-5 Requirements

1. Minimum Capital Requirements:
  • $900,000 investment in a new business: 95% of EB-5 applicants invest through the Regional Center Program at the $900,000 level
  • $1 million option available for EB-5 direct option (~5% of market):
  • Minimum investment amounts have not changed since 1990. The minimum investment amount could change in the future.
  • U.S. Green card program currently requires a minimum investment that is less than other countries with similar programs.
2. New U.S. Jobs Requirements:
  • Create or preserve at least ten (10) full-time jobs for American workers
3. “At Risk” Investment:
  • Investment must be “At Risk” (i.e. fully invested in the project, fund or new company) for the duration of the investor’s conditional residency period
  • Per U.S. law, the EB-5 investor cannot be offered any guaranteed return on or of principal nor possess any redemption rights
4. Legally Sourced Investment:

Acceptable options include (but are not limited to):

In order for a project to qualify as an EB-5 Project with USCIS, the project manager must prepare multiple documents as evidence to determine whether or not the project is compliant with EB-5 Rules and Regulations. These include the Business Plan, PPM, Jobs reports, and all supporting documentation, which are provided by the project manager, and are all submitted to USCIS with the investor’s petition.

Targeted Employment Area (TEA) Related Questions

TEA designation by USCIS requires the applicant to submit evidence (examples given above) that the location of the NCE in which the applicant is investing has an average unemployment rate of 150 percent of the national average, as shown by a letter issued by a state authority. The applicant can submit a letter from an authorized state government body stating that the location of the NCE has been designated a high unemployment area.

Job Creation Questions

Direct EB-5 vs Indirect (Regional Center) EB-5

If you want to manage your own business, consider a “direct investment” approach to EB-5 by investing $1,800,000 (or $900,000 in a TEA) into your own business, which you control, and creating the necessary 10 new jobs within that new enterprise. If your goal is to have a Green Card and not to actively manage a business, it is more often more convenient and possibly with much less risk to utilize a structured investment program in the Regional Center EB-5 category rather than to start and maintain your own business.

Securities and Escrow Related Questions

Any investor who conducts the entire investment transaction (from introduction to execution of documents) outside the U.S. at the time of application may be considered a Reg S Investor. Any investor inside the U.S. for any part of the transaction must be a Reg D Investor pursuant to U.S. securities laws.

A Reg D investor must be an accredited investor and there are several ways of accreditation including net worth, income, or a certification from a professional such as an attorney, financial adviser, or accountant.

Benefits of the EB-5 Program

The EB-5 Program offers a host of benefits to the investor, including but not limited to:

  • Higher acceptance rates to top U.S. universities (over 4x improvement due to not being subject to international student quotas)
  • In many cases, lower tuition costs and access to wide variety of merit-based scholarships
  • Eliminates difficulties obtaining summer internships and full-time positions
  • Expands employment opportunities after graduation (not subject to annual H1-B annual visa lottery)
  • Ability to pursue entrepreneurial U.S.-based career opportunities after graduation
  • Direct path to U.S. citizenship (within 5 years of the green card)
  • Green Cards for the Family with One Investment: A one-time investment of $900,000 provides green cards for an investor, his/her spouse, and children under 21 years of age.
  • Easy to Qualify: No specialized skills required. No travel or age restrictions, and no language skills requirements.
  • Personal and Professional Freedom and Security: Investors can live, work, and retire anywhere in the U.S., travel easily to other countries, and no language skills are required. EB-5 participants can pursue a full range of professional and business opportunities in the world’s largest economy.
  • Healthcare: Investors can gain access to the same high-quality healthcare available to U.S. citizens.
  • Children’s Education: Investors’ children may qualify for state and federal financial aid and pay reduced “in-state” tuition at public universities.
  • Passive Investing: Through the Regional Center option, third parties manage the investments and all aspects of the project.

Investment Tracking and Reporting

To provide our investors with additional security and transparency, many EB-5 projects work with NES Financial, the EB-5 industry’s leader in fund administration. NES Financial provides technology-enabled services for the efficient middle and back office administration of highly specialized financial transactions.

Founded in 2005, NES Financial is the recognized leader in the EB-5 industry with over $20 billion of capital across over 450 projects and has been recognized for two years in a row in Inc. Magazine’s 500 & 5000 lists of the fastest growing private companies in America.

If a project uses NES’s services, each investor has proprietary access to a customized investor portal to track progress regarding job creation and capital deployment. This provides each EB-5 investor with visibility into the uses of their capital.

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