Investment Immigration - EB 5 Immigration

Immigrant petitions of foreign investors, also known as the EB-5 immigrant visas, have successfully helped many immigrants and their families move to America permanently while contributing to creation of new jobs and assisting the industrial development in their new communities. EB5 investor visa became extremely popular due to the benefits (green card) it offers. Applicants for the EB-5 visas require no sponsor, have no language or minimum education requirement, and lack the long waiting periods that plague other visa programs. However, the largest benefits come after an EB-5 visa investment has been approved. Investors and their families can live and work in America for two years as temporary residents, and then petition the U.S. government for the Legal Permanent Resident (LPR) status towards the end of the temporary period. Finally, after five years combined in temporary and LPR status, they like other LPRs may become eligible to become U.S. citizens.

EB-5 Investor Visa program

Immigrant petitions of foreign investors, also known as the EB5 immigrant visas, have successfully helped many immigrants and their families move to America permanently while contributing to creation of new jobs and assisting the industrial development in their new communities. EB5 investor visa became extremely popular due to the benefits (green card) it offers.

EB-5 Immigrant Investor Regional Center List

The following is a list of current EB-5 Immigrant Investor Regional Centers by state. It is periodically updated and up to date

Applying for Work-Based Nonimmigrant Visa as an Investor or Entrepreneur

The primary nonimmigrant classification for investors and entrepreneurs is the E-2 (E2) Treaty Investors classification. However, provided that the requirements are met, an alien seeking to enter the United States as an investor or entrepreneur may instead apply for an H-1B (H1B), L-1 (L1A or L1B), or O-1 (O1) visa. This is especially important for investors and entrepreneurs who are not nationals of a treaty country in order to qualify for an E2 visa. However, because the H1B, L1, and O1 classifications all require an “employer-employee relationship” both in order to obtain a visa and to maintain status, investors and entrepreneurs may have difficulty meeting the requirements for those classifications where they have a significant ownership stake in the petitioning entity. This article will address special considerations for investors and entrepreneurs seeking to obtain one of those three nonimmigrant employment visas.

E2 Treaty Investors Visa

The E2 (E-2) Treaty Investors visa is a nonimmigrant visa for nationals of countries with which the United States maintains a treaty of commerce and navigation who intend to enter the United States in order to invest their own funds (such that the invested funds are at risk) into a U.S. enterprise. The E2 visa is also available for certain employees of the principal E2 investor from the same country of nationality, or for employees of an individual or company abroad that would qualify as an E2 treaty investor. For those who are eligible, the E2 visa is a powerful tool for investing money in the United States. This article will explain the requirements for qualifying as an E2 Treaty Investor, the E2 treaty investor application process, and the rules for being on and maintaining E2 status (including derivative E2 visas for family members).

E2 Employees of Treaty Investors

The E-2 (E2) Treaty Investors visa is a nonimmigrant visa for nationals of qualified treaty countries who intend to invest money in a U.S. enterprise. The E2 visa is also available for employees of E2 treaty investors and for employees of qualifying organizations or investors abroad that do not have E2 visas but are qualified to petition for and employ E2 beneficiaries. This article will explain the requirements for eligibility to petition for and hire E2 employees, the requirements for qualifying as an E2 employee, and the rules and regulations for being on E2 status as an employee (including information about E2 family members).

Using the EB1 and EB2 Preference Categories as an Investor or Entrepreneur

Certain investors and entrepreneurs may be eligible to use the first preference (EB1) or second preference (EB2) employment immigration categories to meet their immigration goals. For those businesspeople who meet the eligibility requirements, the EB1 and EB2 categories are very attractive due to the EB1 category not requiring labor certification and the EB2 category having a “national interest waiver” from the labor certification requirement. This article will explain the special considerations for such businesspeople who are considering applying under the EB1 or EB2 categories.

USCIS Releases Annual Reporting Info and Filing Tips for Form I-924A

On December 3, 2015, USCIS released its annual reporting information and filing tips for the Form I-924A, Supplement to the Form I-924. This information is invaluable to Regional Centers participating in the EB5 Regional Center Program.

National Visa Center Creates EB5 Investor Assistance Desk

In welcome news for those seeking EB5 status, the Department of State’s (DOS’s) National Visa Center (NVC) has announced an “investor assistance desk” for approved those with an approved Form I-526 petition. The EB5 Investor Assistance Desk launched on February 22, 2016.

EB5 Form Average Processing Times as of April 30, 2016

On June 14, 2016, the United States Citizenship and Immigration Services (USCIS) released its most recent average processing times for the Immigrant Investor Program Office. The processing times are based on processing dates as of April 30, 2016.

Updated Processing Times for EB5 Immigrant Investor Program Forms

On January 12, 2015, the United States Citizenship and Immigration Services’ (USCIS’s) Immigrant Investor Program Office released its updated EB5 processing time report.

USCIS Announces EB5 Regional Center Compliance Audit Program

On March 20, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it will begin EB5 regional center compliance audits. In this article, we will examine the guidelines for EB5 regional center compliance audits and what they may mean going forward.

Analysis of Proposed EB5 Rule Titled "EB-5 Immigrant Investor Program Modernization"

On January 13, 2017, the Department of Homeland Security published a notice of proposed rulemaking in the Federal Register titled “EB-5 Immigrant Investor Program Modernization.” The rule was open for public comment until April 11, 2017. The DHS will examine the comments and incorporate them toward creating a new final rule affecting the EB5 program. The notice of proposed rulemaking proposed changes to key aspects of the EB5 program. In this article, we will examine the significant changes in the notice of proposed rulemaking and discuss briefly what these changes may mean for the future of the EB5 program if they are adopted.

Form I-529/I-826 Performance Statistics (fy 2008-Q1 2017) and EB5 Visa Issuance Statistics (fy 2016)

The United States Citizenship and Immigration Services (USCIS) recently released comprehensive performance statistics for the Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions. The statistics include information from fiscal year 2008 to the first quarter of the current fiscal year, 2017. Furthermore, we will examine detailed visa issuance statistics from the Department of State (DOS) for fiscal year 2016. In this post, I will include the charts as well as a few notes on the statistics.

DHS Implements International Entrepreneur Rule With Plans to Remove it in Near Future

On January 17, 2017, the Department of Homeland Security (DHS) published the final version of its international entrepreneur parole rule in the Federal Register (FR) at 82 FR 5238. The rule, published during the final week of the Obama Administration, was originally slated to take effect on July 17, 2017. However, on July 11, 2017, the DHS published a new rule, at 82 FR 31887, delaying the effective date of the International Entrepreneur Rule pending its likely repeal in light of directives regarding the use of parole authority in President Donald Trump’s Executive Order 13767. However, on December 11, 2017, Judge James E. Boasberg of the United States District Court, District of Columbia, issued an order vacating the delay rule and allowing the International Entrepreneur Rule to take effect immediately. In this article, we will examine the DHS’s implementation of the International Entrepreneur Parole Rule. However, please bear in mind that, while the DHS is implementing the rule in accordance with Judge Boasberg’s order, it is simultaneously engaged in the process to formally remove the International Entrepreneur Rule in the near future.

DHS Delays Effective Date of International Entrepreneur Rule (updated with information about litigation)

On August 31, 2016, the Department of Homeland Security (DHS) published a proposed rule titled the International Entrepreneur Notice of Proposed Rulemaking. On January 17, 2017, three days before President Donald Trump took office, the DHS published a substantially similar final version of the rule that was slated to take effect on July 17, 2017. Briefly, the rule would have allowed certain international entrepreneurs who had substantial ownership interests in a start-up entity in the United States to seek immigration parole under section 212(d)(5) of the Immigration and Nationality Act (INA) to grow their start-ups. Under the provisions in the rule, the DHS would have granted parole to those entrepreneurs in cases where it determined that the granting of parole would serve a significant public interest. Essentially, the rule would have constituted a special parole program for certain international entrepreneur. Note: This article has been updated with information about the vacatur of the delay rule on December 1 2017.

USCIS Rescinds Policy Allowing for Use of Tenant-Occupancy Methodology to Establish Job Creation in EB5 Cases

In the PM, the USCIS takes position that tenant occupancy is not a reasonable methodology to support economically or statistically valid forecasting tools in the context of establishing that an EB5 petitioner under the EB5 regional center program is complying with the job creation requirement under section 203(b)(5) of the Immigration and Nationality Act (INA). Accordingly, the USCIS announced that it is rescinding its previous policy that it set forth in a 2012 Guidance Memorandum (GM)-602-0001 on December 20, 2012. The USCIS’s new PA updates the USCIS Policy Manual (PM) at 6 USCIS-PM 6.2. In this post, we will briefly examine the new guidance.

EB5 Impermissible Debt Arrangements

On October 30, 2018, the United States Citizenship and Immigration Services (USCIS) revised its policy on debt arrangements in the Employment-Based Fifth Preference (EB5) immigrant investor context. The modifications were made to the USCIS Policy Manual (PM) at 6 USCIS-PM G.2. EB5 investors are not permitted to meet the EB5 minimum investment account through a debt arrangement. The new policy clarifies the distinction between permissible redemption agreements and impermissible debt arrangements. We will examine the new policy in this article.

Promissory Notes and EB5 Investments

In order to be eligible for an EB5 visa as an immigrant investor, an applicant must show that he or she is “in the process of investing” the requisite funds. Under regulations, the entirety of the minimum investment amount must be “at risk.” The same provisions apply when an immigrant investor subsequently applies for the removal of conditions from his or her permanent resident status. One way to show that immigrant investor is in the process of investing is through promissory notes. Promissory notes may also constitute capital in certain cases. A promissory note must conform to specific requirements to satisfy the evidentiary requirements for EB5 purposes. In this article, we will examine issues concerning the use of promissory notes to establish that the alien investor is in the process of investing and has placed the requisite investment funds at risk.

Gifts as EB5 Investment Capital

In order to qualify for EB5 classification as an immigrant investor, the petitioner must invest his or her own capital into a new commercial enterprise. Provided that the evidentiary requirements are met, an investor may use funds derived from a gift to meet the requisite minimum investment threshold for EB5 classification. In this article, we will examine various issues that arise when the source of an EB5 petitioner’s invested capital is a gift. Although this article focuses on gifts in the EB5 context, it is worth noting that many of the principles apply similarly to some cases where the source of investment funds derives from an inheritance.

EB5 Petitions and Escrow Accounts

In order to be eligible for EB5 classification, an immigrant investor is required to show that he has invested, or is in the process of investing, the requisite amount of capital in a qualifying commercial enterprise (among many other requirements). Provided that the investor follows United States Citizenship and Immigration Services (USCIS) policy, he or she may place his or her investment capital in escrow, to be released to the commercial enterprise upon approval of the EB5 petition, the issuance of the EB5 visa, and/or the approval of the investor’s application for adjustment of status. In this article, we will examine issues concerning the use of escrow accounts in the EB5 context.

Meaning of "Actively in the Process of Investing" in EB5 Context

In order to be eligible for an EB5 visa as an immigrant investor, the investor must establish that he or she has invested or is “actively in the process of investing” the requisite amount of capital into a qualifying new commercial enterprise. In this article, we will examine the meaning and scope of the term “actively in the process of investing” and what it means for investors who are seeking EB5 visas without having already invested the entire minimum amount of capital into the applicable commercial enterprise.

"Capital" in the EB5 Investment Context

The employment-based fifth preference (EB5) category is available to immigrant investors who invest a certain amount of capital in a new commercial enterprise and create or preserve a certain number of jobs. In order to be eligible for an EB5 visa, the immigrant investor must invest his or her own capital into the new commercial enterprise. In this article, we will examine what constitutes “capital” under the EB5 program.

Israeli Citizens Eligible for E2 Treaty Investor Visas Beginning May 1, 2019

On April 11, 2019, the U.S. Embassy in Israel announced the implementation of the E2 Investor Visa for Israeli nationals beginning on May 1, 2019.