The EB-5 visa state of affairs in the U.S.

By Edward C. Beshara

Past misconception: Where are we now?

Past EB-5 projects, attorneys, investors, EB-5 service providers, and groups/corporations were supporting the belief that before the Regional Center Program was to sunset, EB-5 investors had to rush to file their EB-5 petitions and commit their investment funds of either $500,000 or $900,000 American dollars before the EB-5 Program sunsets. The belief was that the EB-5 investors’ petitions and applications for CPR would be “grandfathered” in. That is, USCIS and the State Department would continue processing investor petitions and applications.

In the past, the EB-5 Regional Center Program was reauthorized in a short reasonable time either on or immediately after the sunset date.

On this basis, the USCIS and State Department continued processing the petitions and applications. As a result, the “grandfathering” concept and belief was not tested.

As of June 30, 2021, the EB-5 Regional Center Program did sunset, and the EB-5 Regional Center Program has not been reauthorized.

To the surprise of the EB-5 industry, the USCIS and the State Department have taken the position that all processing of existing EB-5 I-526 petitions and applications for CPR had to stop, until such time as the EB-5 Regional Center is reauthorized again.

Currently, over 80,000 plus EB-5 Regional Center investors are affected.

Moral EB-5 dilemma

Morally, we are at the crossroads of what is right and what is wrong.

The EB-5 Regional Center laws, regulations and policies were supported by U.S. Congress, the DHS (USCIS) and the State Department, and represented to foreign national investors and their families who had a dream to become U.S. permanent residents, that they could invest and commit their $500,000 at a minimum or $900,000 in an EB-5 Regional Center Program/project and continue their road to U.S. permanent residency.

Unfortunately, there was no clear representation by U.S. Congress, USCIS, or State Department that if the EB-5 Regional Center Program was not reauthorized, the existing EB-5 petitions would not continue to be processed.

In fact, the position by USCIS or the State Department, today, to the EB-5 investors is morally wrong. That is, come and invest in the EB-5 Regional Center Program, commit your personal funds, make arrangements to settle in the U.S., but regardless of your filings, we are not going to allow continued processing.

Without warning, you are out. It is quite apparent USCIS and the State Department are showing no compassion for the investors and their families who were attracted to the U.S. by the EB-5 Regional Center Program.

The future of EB-5

The EB-5 Regional Center Program may in the future be reauthorized.

The question is whether it will be 6 months, 1 year, 2 years or permanent.

For future EB-5 investors, a permanent reauthorization is the solution and answer, a positive outcome.

However, if only for months or years, it will continue to sunset.

In addition, with the temporary reauthorization, the current policy is that sunsetting will cause the suspension of I-526 and CPR processing by USCIS and the State Department.

Current policy

Once an investor obtains Conditional Permanent Residency (CPR), the USCIS and the State Department will continue their I-829 application for permanent residency (Unconditional Permanent Residency).

Let the investor beware

The average USCIS and State Department processing time from filing an I-526 petition to obtain CPR is 2 ½ to 3 years.

Therefore, if the EB-5 Regional Center Program is reauthorized for less than 3 years, then the EB-5 Regional Center Program may sunset before the investor receives their CPR. That is, the EB-5 Regional Center Program sunsetting again without reauthorization will lead to the current policy of the USCIS and State Department not continuing the process of adjudicating the I-526 petitions and obtaining CPR. This current policy continues.

The solution: A necessity and immediate need

U.S. Congress and the USCIS/State Department will need to “grandfather” in (continue processing) all past, present and future filings (over 80,000) of I-526 petitions and applications for CPR.

That is, even though the EB-5 Regional Center Program is reauthorized for only a month, or short period, as long as an I-526 petition is filed during this reauthorization short period, and even if later the EB-5 Regional Center Program sunsets, the USCIS/State Department will continue to process the I-526 petitions and applications for CPR filed.

The reality: For EB-5 regional centers

Under current conditions and policies, how with a good conscious can an EB-5 Regional Center Program, attorneys for the investor, service providers, broker/dealers, investment advisors etc. advise investors to commit their funds to an EB-5 Regional Center Program project when the EB-5 Regional Center Program is only reauthorized for a short period of time?

Therefore, the solution and for the continued viability of the EB-5 Regional Center Program and their projects, U.S. Congress and USCIS/State Department will need to immediately “grandfather” in the pending and future investor cases and/or permanently reauthorize the EB-5 Regional Center Program.

Is EB-5 still alive? Where are we now?

The EB-5 Program for a direct investment is permanent.

That is, a foreign national can invest their personal funds into their own U.S. business project or a project/business organized by a separate management company, and their personal investment funds lead to the creation of 10 fulltime jobs, in which the employee is either a U.S. citizen or U.S. permanent resident.

The same processing times apply to the EB-5 Direct process as the EB-5 Regional Center process. In addition, the TEA and Rural analysis applies to the EB-5 Direct process.

Most EB-5 direct and Regional Center projects allow an exit or return of capital to the investor after the I-829 is filed and/or processed. That is, from the time the personal funds are committed to the project to the time of exit, it may be at least 7 to 8 years.

Future of EB-5

On the horizon, there is hope for a Regional Center reauthorization law, which may incorporate an increase in the minimum investment to $700,000, concurrent filing of the I-526 petition and Application for Conditional Permanent Residency, applications for work authorization and travel permission before the USCIS makes a decision on the CPR for the investor and the family members.

Powered by Froala Editor