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“Pooled Direct” EB-5 Investment No Longer Allowed

Under the EB-5 Reform and Integrity Act of 2022, any EB-5 project with more than one EB-5 investor must be sponsored by a Regional Center. The “Pooled Direct” investment schemes were thus eliminated.

Those “pool direct” investmet became popular during the eight-month lapse of the Regional Center program (June 30, 2021 – March 15, 2022)

Petitions filed before March 15, 2022 are grandfathered but USCIS is rejecting petitions filed on or after March 15, 2022 based on a pooled, non-regional center investment.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about one aspect of EB-5 program.  If you would like to discuss if you are eligible to apply for EB-5 green card or need help obtaining EB-5 green card, schedule a consultation with an experienced EB-5 immigration lawyer in Arizona at www.calendly.com/irena-3 TODAY! We look forward to talking with you and helping you get your EB-5 green card!

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EB-5 investment increased

The minimum capital investment amount for EB-5 green card has increased to $1,050,000 and to $800,000 for investments in targeted employment area and infrastructure projects.  The minimum investment amounts will be automatically adjusted for inflation every five years.  The EB-5 Reform and Integrity Act of 2022 brought some other changes and re-authorized the Regional Center Program until September 30, 2027.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about EB-5 green card process.  If you would like to discuss if you are eligible to apply for EB-5 green card or need help obtaining Eb-5 green card, schedule a consultation with an experienced EB-5 immigration lawyer in Arizona at www.calendly.com/irena-3 TODAY or call our office at 480-425-2009! We look forward to talking with you and helping you obtain EB-5 green card!

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Loan proceeds qualify as cash for EB-5 investment

D.C. Circuit Court ruled that loan proceeds qualify as cash under the EB-5 Program. Under a contrary interpretation, USCIS treats the investment as indebtedness rather than cash subject to additional requirements. Specifically, a loan may qualify as capital for EB-5 investment only if they are secured by assets owned by the investor. The court rejected such collateralization interpretation.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only one aspect of the latest development of EB-5 green card process. If you would like to obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online.

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May investments in multiple businesses be combined for EB-5 green card?

Investors sometime want to invest in multiple business. Some businesses may not need 10 new full time jobs. We often hear a question whether the $1,800,000 investment (or $900,000 in targeted employment areas) may be diversified across a portfolio of businesses. For example, a client wanted to invest in two restaurant franchises ($800,000 in one restaurant and one million in the second restaurant).

An investor my invest in several business, but only if the minimum investment amount is first placed in a single new commercial enterprise. An investor may invest in one enterprise that diversifies and puts $800,000 towards one business it wholly owns and $1,000,000 towards another business it wholly owns.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only one aspect of the EB-5 green card process. If you would like to obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online.

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Does a position shared by several employees count as one full-time job for EB-5 job creation?

In order to get an EB-5 green card through investment, the investor has to create at least 10 full-time jobs. A client wanted to invest in a restaurant where several employees would share some positions. Does that qualify?

To be considered a full-time job, it requires 35 hours a week. Where two or more employees share a full-time position it counts as one-full time job if they combine at least 35 hours per week. To demonstrate a full-time position is shared by more than one employees, the investor may should a written job-sharing agreement, we weekly schedule or evidence of the sharing of the responsibilities or benefits of a permanent full time position. However, two part-time jobs do not count.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only one aspect of the EB-5 green card process. If you would like to obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online.

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What happens to the conditional (EB-5) green card of the investor’s wife in case of divorce?

One way to obtain a legal permanent resident status in the US is through investment (under EB-5 category). The first step is to file a petition for classification as an alien entrepreneur. The petition must be accompanied by evidence that the investor has invested or is actively in the process of investing lawfully obtained capital in a new commercial enterprise in the U.S. which will create at least 10 full-time jobs. One the petition is approved, the investor can obtain an immigrant visa or adjust his or her status to the conditional resident.

If the spouse of the principal EB-5 investor obtains a divorce after the conditional EB-5 resident status is granted, the ex-spouse may still file the petition to remove conditions, and if it is approved, the ex-spouse becomes a legal permanent resident (green card holder).

The petition to remove conditions in conditional resident status must be filed within 90 days before the second anniversary of the conditional status. The petition must document that the conditional resident (i) invested or was actively investing the required capital that (s)he continuously maintained the capital investment over those two years, (ii) created or can be expected to create within a reasonable time ten full-time jobs.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only one aspect of the EB-5 green card process. If you would like to obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online.

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Can E-2 investment “count” toward EB-5 investment?

E-2 visa is for investors from treaty countries who invest “substantial” amount of capital into a US business. E-2 visa allows them to manage that business. E-2 visa has to be renewed every few years, depending on the treaty. A major downside of E-2 visa and a significant motivator for converting to the EB-5 green card is the problem of children of E-2 investors who are not eligible for E-2 dependent visas once they turn 21.

While there is no dollar amount for E-2 visa, in order to get EB-5 green card, the investor has to invest at least $900,000 in certain targeted employment areas or $1,800,000 anywhere else. While the E-2 capital investment may be counted towards the EB-5 investment, retained earnings or revenue generated by the E-2 investment may not be counted toward EB-5 investment. The investor must draw funds from the E-2 business and invest personal funds in order to “count” towards EB-5 investment.

In addition, the business must already have created the requisite ten jobs, or demonstrate that it will create the remaining jobs needed to meet the ten-job threshold within two years of the grant of conditional permanent resident status.

Planning and navigating the transition from E-2 to EB-5 can be a complicated process. If you would like to transition from E-2 investment to EB-5 investment and obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only one aspect of the transition from E-2 visa to EB-5 green card.

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Increased USCIS fees will impact EB-5 applications

All EB-5 applications postmarked on or after October 2, 2020, must include payment for the new increased filing fee. The new filing fee for the immigrant petition (I-526) is $4,010, the petition to remove conditions on residence (I-829) is $3,900, application for regional center designation (I-924) is $17,795, and the annual certification of the regional center (I-924A) is $4.465. Applications with incorrect fees will be rejected by USCIS and result in significant re-filing delays.

Two lawsuits have been filed against the fee increase in the district courts in California and in DC.  A hearing on the preliminary injunction in the U.S. District Court for the Northern District of California has been scheduled for September 25 and it is anticipated that a decision on the preliminary injunction will be rendered before October 2.

Please note that this article does not constitute a legal advice.  We simplified the law to outline one aspect of the EB-5 green card process.  If you would like us to obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online

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How long will it take to process your EB-5 green card petition?

Last year the processing times of EB-5 petitions drastically increased overnight, jumping from a range of 20.5 to 27 months to a range of 29 to 45.5 months. Today, the estimated processing time is between 46 and 74.5 months and for petition to remove conditions between 27 and 48.5 months.

One potentially positive development is that the USCIS has proposed significant changes in how it will prioritize the EB-5 petition adjudications. On January 29, 2020, the USCIS announced that starting March 31, 2020 it would no longer continue its “first-in first-out” approach to adjudications, and instead would shift to a visa availability approach. Applicants from countries where visas are immediately available will now be better able to use their approximate 700 visas annual per-country allocation of EB-5 visas.

In August 2014, the U.S. Department of State, announced the first instance of EB-5 visa unavailability in the EB-5 program’s history, affecting investors born in China. Until recently, three countries face significant EB-5 visa backlog: China, Vietnam, and India. Chinese EB-5 visa backlog rose to a 16.2 year wait prediction in an October 2019. Vietnamese investors were predicted to wait 7.1 years. Indian investors filing in October 2019 had roughly 6.7 years’ worth of EB-5 visas “in line” ahead of them. Now, the EB-5 visa backlog for Chinese investors is less than 5 years and 3 years for Vietnamese investors. There is no longer backlog for investors born in India.

Despite the large amount of registered China fifth preference demand, currently there are not enough applicants who are actively pursuing their EB-5 case to fully utilize the amount of numbers which are expected to be available under the annual limit. Further, the spread of COVID-19 could also sap visa demand along with suspending visa services. Long waits may also become commonplace for all future investors if Congress enacts country cap removal legislation. Chinese investors would stand to gain from country cap removal legislation, whereas rest of would face longer wait times.

Please note that this articles does not constitute a legal advice.  We provided some insights into EB-5 processing. If you would like to discuss if you may qualify for EB-5 investor green card, call our experienced EB-5 visa attorney at 480-425-2009 or schedule your consultation online.  

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Proposed USCIS filing fee increase

In November 2019, the Department of Homeland Security proposed to adjust USCIS fees by a weighted average increase of 21 percent, add new fees, and make other changes, including form changes and the introduction of several new forms. For example, the filing fee for the application for naturalization is proposed to increase by 83% to $1,170, petition for H-2A non-immigrant worker by 87% to $860 (named worker), petition for L non-immigrant worker by 77% to $815 and petition for O non-immigrant worker by 55% to $715.

On July 22, 2020, the Office of Information and Regulatory Affairs completed review of a final rule increasing USCIS filing fees. The Federal Register will post a copy of the final rule for public inspection before publishing it officially. In the proposed rule, DHS noted that once the rule was finalized, it would not take effect for at least 60 days after publication.

If you are considering applying for a naturalization, green card or non-immigrant status, call an experienced immigration attorney at (480) 425-2009 or contact us through our website to schedule a consultation
before the filing fees increase.