The EB-5 Immigrant Investor Program grants visas to people who are willing to make a significant investment in American business. It became especially popular during the last U.S. recession, when banks were reluctant to make loans for new construction projects.
The EB-5 asks foreign investors to create jobs for Americans via new construction projects. In exchange, investors are provided with a green card and a path to citizenship.
But before you apply, it’s important to understand that the program has changed significantly with new rules that went into effect in November of 2019. Following are the important things to know if you are considering pursuing an EB-5.
Overview
New developments to the EB-5 program are meant to modernize the program by recognizing inflation and changes to areas of need in America. The main points of difference are:
- Higher minimum investment amounts;
- New standards for some targeted employment area (TEA) designations;
- Placing responsibility for direct management of TEA designations with USCIS;
- Better explaining USCIS procedures for removing certain conditions on permanent residence; and
- Ensuring that current EB-5 petitioners can retain their priority date if they meet certain conditions.
Generally speaking, the EB-5 program grants individuals eligibility for lawful permanent residence in the United States if they make a commercial investment sufficient to provide new full-time jobs for at least 10 American workers. In some circumstances, it also qualifies to save 10 jobs that would otherwise disappear.
Let’s look at each of the changes individually.
New minimum investment amounts
The standard minimum investment amount has increased from $1 million to $1.8 million in line with inflation.
Investment in a targeted employment area (TEA) is still assessed at 50% of the standard, which means that investing in areas with particular need for new jobs is $900,000 instead of $500,000.
Going forward, the minimum investment amounts will be adjusted for inflation every five years, meaning that they are likely to go up again in 2024.
Reforms to TEA designation rules
In the past, the USCIS deferred to state and local governments in the designation of TEAs. Unfortunately, this led to the practice of gerrymandering, i.e., purposely manipulating the boundaries of an electoral constituency. It was typically done to artificially boost the unemployment rate in a prosperous area by linking it with a distressed area.
The new construction due to foreign investment could then be done in the prosperous areas rather than the places that were truly in need. Now the federal government has regained control of the designation process and limited the ability of states to put census-tract data from diverse communities together in order to skew results.
EB-5 investments therefore better support the intention of Congress to push investment into the neediest areas.
Removing conditions on permanent residence
The visa process places conditions on permanent residence for the EB-5 visa holder until certain milestones are reached. The visa-holder and their immediate family will have been granted a two-year span of time in which to prove that their investment is likely to support American jobs over the long term.
Various behaviors can threaten the extension of the EB-5 into permanent residence, the biggest one being spending significant time outside of the U.S. during that two-year period. But after two years, the visa-holder can apply to have those conditions removed.
The new rule clarifies the fact that the primary visa-holder’s derivative family members must independently protect their visa status and also file independently to remove the conditions on permanent residence. Certain close family members may still be represented on the primary visa-holder’s petition to remove conditions.
There are also new guidelines that provide for flexibility in interview locations for petitioners seeking to remove conditions.
Priority date retention
Even if you have a previously approved petition for an EB-5 visa, you will need to apply again under the new rules. However, in most cases, you will be able to retain your original priority date so as not to have your progress derailed.
One thing that can jeopardize your date retention is if USCIS discovers fraud on the part of the investor in the original EB-5 application. Fraud on the part of the regional center, NCE, or project does not affect your priority date retention.
Be aware, however, that USCIS is at liberty to declare that there was gross negligence on their part in approving the original application and therefore deny your right to priority date retention.
Less risk for investors
Though minimum investment rates are higher now, investors may find that the EB-5 is more attractive for one particular reason. During the depths of the U.S. recession, new office buildings were being funded with 100% EB-5 investment due to skittishness of the banks.
But as the economy has improved, banks began lending again and now the industry norm is for 25-35% of funding for new construction to be derived from EB-5 investment. The remainder comes from traditional bank loans and private equity.
That means that EB-5 investors can feel safer investing in projects because the funding is more diverse. Choosing the EB-5 route also allows investors to move their families to the United States in a relatively short amount of time and gives them permission to operate a business there.
Expect excellence
Investors in the EB-5 program have the right and the duty to be sure that their investment is well managed. In searching for an EB-5 project, look for an experienced developer who can show solid results from past projects. Be sure to visit the job site before choosing to invest. Remember that you have not only your finances at stake but also your family’s ability to settle in the United States.
These new rule changes and shifts in the U.S. economy make becoming an EB-5 investor a bit more costly but also safer. The next hike in minimum investments is not likely to occur until 2024, so now is a great time to test the waters. However, rules can be changed at any time, so be certain that you have an open dialog with your U.S. developer when it comes to anything that may affect the project.
Sources:
https://www.klaskolaw.com/hot-questions/eb-5-regulation-what-you-may-have-missed/
https://cis.org/North/Gerrymandering-Investor-Visa
https://medium.com/book-bites/the-importance-of-due-diligence-in-eb5-investments-4e4186ce49ef
https://www.uscis.gov/policy-manual/volume-6-part-g-chapter-5
