Q: How long does the EB-5 process take?
A: Absent the impact of quota restrictions, immigrating under the EB-5 provisions is typically a 4-to-5-year process that includes the following steps:
1. Selecting and retaining a competent immigration attorney
- Attorneys are required under state bar rules to disclose the scope of their representation and any actual or potential conflicts of interest. Most state bar associations publish reliable information concerning attorneys licensed to practice in a particular state, including years of practice and any public record of discipline concerning an attorney (see, e.g., http://members.calbar.ca.gov/fal/MemberSearch/QuickSearch).
2. Selecting a project in which to invest
- Over 90% of EB-5 immigrants invest in a project developed by or offered under the auspices of a designated regional center.
- Working with the immigration attorney to provide, develop, and implement a strategy for documenting lawful source of funds and tracing of these funds
- The level of complexity of this process varies considerably, depending on business- and financial-record-keeping practices and other factors specific to the investor and the investor’s country of origin.
- Preparing and filing an I-526 petition with USCIS
- USCIS processing times vary considerably over time and can range from several months to over one year depending on a range of factors, including staffing levels, case complexity, and the completeness and sufficiency of the documentation submitted with the petition.
- Processing an application for an immigrant visa through the U.S. Embassy or Consulate in your home country or adjusting status in the United States when a visa is available to persons with your “priority date” (date of filing of I-526 petition)
- Due to the high demand for EB-5 visas on the part of Chinese applicants, visa availability is only an issue for investors born in China.
- Only applicants in lawful nonimmigrant status in the United States are eligible to adjust status in the United States. All others must attend a visa interview in their country of citizenship or residence.
- Completing a two-year period of conditional residence
- EB-5 immigrants are admitted to the U.S. as conditional residents for a period of two years, during which time the investor is required to establish a permanent residence in the United States and maintain his or her qualifying investment in the EB-5 enterprise.
- Preparing, filing, and awaiting adjudication of an I-829, Petition to Remove Conditions on Residence
- To approve an I-829 petition, USCIS must determine that an investor has maintained his or her investment throughout the period of conditional residence and that the EB-5 enterprise has created the required jobs for qualified U.S. workers.
Q: How can I show that my funds come from a lawful source?
A: The applicable EB-5 regulations at 8 CFR § 204.6(j) state:
To show that the petitioner has invested, or is actively in the process of investing, capital obtained through lawful means, the petition must be accompanied, as applicable, by:
- Foreign business registration records;
- Corporate, partnership (or any other entity in any form which has filed in any country or subdivision thereof any return described in this subpart), and personal tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind filed within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner;
- Evidence identifying any other source(s) of capital; or
- Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States within the past fifteen years
In practice, documenting a lawful source of funds often requires an in-depth analysis of the specific source of funds in order to determine what kinds of documents will be needed. The assistance of an immigration attorney experienced in the preparation and filing of I-526 petitions is critical at this stage of the petition as missteps in determining and documenting the lawful source of funds can result in unnecessary delays in adjudication and even petition denial.
Q: What’s the difference between investing in a “standalone” project and a regional center?
A: The principal difference is that investors in “standalone” projects may only take credit for direct job creation, that is, employees hired directly by the company in which the immigrant invests. Investors in regional center projects, however, may count direct jobs as well as indirect jobs that can be shown by reasonable economic methodologies to have been created by the investment.
Another distinguishing factor is that a regional center may file an exemplar petition (Form I-924) with USCIS to request pre-approval of a particular investment project, which, if granted, will normally be given deference when the I-526 petitions of all investors in that project are adjudicated. Assuming the absence of material changes in key factors adjudicated with the exemplar adjudication, exemplar approval often equates to less project-related immigration risk for investors.
Q: What happens if the EB-5 company in which I invest goes bankrupt?
A: An EB-5 investor is required to maintain his or her investment throughout the period of conditional residence and to prove that the investment created the required number of qualifying jobs for U.S. workers. If the EB-5 enterprise is liquidated in bankruptcy proceedings and ceases to exist or do business before an investor’s I-829 petition is approved, the investor will be unable to show the required maintenance of his or her investment or the necessary job creation. USCIS adjudication guidelines anticipate that investors in this situation may be able to make a new qualifying investment and file a new I-526 petition to restart the immigration process. Any son or daughter of the investor who is over 21 years old at the time of filing the new I-526 petition, however, would not be eligible to immigrate with his or her investor parent.
Q: What happens if my I-829 petition is denied?
A: An EB-5 immigrant whose I-829 petition is denied by USCIS may seek a re-adjudication of the petition before an immigration judge in removal proceedings. A decision by a judge to deny the I-829 petition and order the investor removed from the United States may be reviewed in federal court. Alternatively, an EB-5 immigrant whose I-829 has been denied may seek to make a new qualifying investment, file a new I-526 petition, and become a conditional resident based upon approval of the new I-526 petition. It is important to note that, as in the case of an investment in a failed business, sons and daughters who initially immigrated with the family and are over 21 years old at the time of the filing of a new I-526 petition will no longer be eligible to immigrate as family dependents.
A: China-born EB-5 applicants will still be able to file their I-526 petitions, and USCIS will adjudicate those petitions. Beginning sometime in the spring or summer of 2015, however, EB-5 applicants born in China will need to wait for their priority date (I-526 filing date) to become current under the quota system before they will be able to obtain visas or adjust to conditional resident status. Depending on adjudication times at USCIS, the impact of the China quota may initially add one to two years overall to the EB-5 immigration process. Over time, however, and with continued strong demand for EB-5 visas by Chinese applicants, these wait times may be expected to lengthen.