DHANANI EB-5 Program

The EB-5 Immigrant Investor Program offers foreign investors with the required capital and their immediate family members a simpler path to securing a better future in the United States. The EB-5 visa is the fastest way to obtain a green card. Through this process, the foreign investor can potentially be able to live and work in the United States within months instead of years.

The EB-5 program allows foreign entrepreneurs to obtain permanent U.S. residence by investing $900,000 or $1.8 million in a project that creates 10 full-time, permanent jobs for U.S. workers. To qualify for the lower investment amount, the project must be located within a targeted employment area (TEA), which is either a rural area with fewer than 20,000 inhabitants or an area with an unemployment rate 150% of the national average.

The program was launched in 1993 to help formalize the program by permitting investors to pool investments in larger projects.

What are the basic steps to the EB-5 process?

1. Finding the right EB-5 project.
2. Investing the necessary capital and filing an I-526 Petition.
3. Obtaining conditional permanent resident status.
4. Filing an 1-829 petition and removing conditions from resident status.
5. U.S. citizenship (optional)

What’s the difference between the I-526 petition and the I-526E petition?

1. I-526 is for direct investors in a commercial enterprise.
2. I-526E is for EB-5 participants investing via a regional center.

What is the difference between a direct vs. indirect regional center investment models?

1. Direct investments involve directly investing in a commercial enterprise with no intermediary.
2. Regional centers set us an investment fund and investors buy equity stakes in the fund. The fund either loans money to or buys equity in job-creating entity. Finally, the job-creating entity uses the fund’s investment to create employment.
3. Direct can accept funding from only one EB-5 investor.
4. Regional center-sponsored projects can pool capital from multiple visa applicants.

What Are The Specific Benefits To Obtaining A Green Card Thought EB-5?

1. Business opportunities: Investors can start their own business to create jobs or opportunities for themselves and others. This may give them access to additional federal benefits.
2. Tax benefits: Investors can benefit from various deductions and credits available to residents when filing income tax returns. This may potentially reduce their overall tax liability.
3. Diversity visa backlog avoidance: In some countries, the EB-5 program provides a quicker route to U.S. immigration than other family or employment-based visa categories.
4. Access to Social Services: Green card holders have access to various social services, such as Social Security benefits, unemployment insurance, and retirement programs.

Congress created the EB-5 Immigrant Investor Program in 1990 to generate job-creating foreign investment in the United States. The program was enacted through the Immigration and Nationality Act, sections 203(b)(5) and 216A. Pertinent EB5 regulations are located within the Code of Federal Regulations (CFR) in Title 8, sections 204.6 and 216.6.

A new law aimed to make the EB-5 process fairer, more transparent, and more efficient. Changes included:

1. A new, lower minimum investment amount of $1,050,000 to reflect the changing cost of living
2. A new, lower investment amount of $800,000 for projects located in a targeted employment area (TEA)—we’ll explain more about what a TEA is later in the article The introduction of set-aside visas for EB-5 applicants who invest in TEA projects
3. Enabling concurrent filing. In other words, EB-5 investors can apply to have their immigration status adjusted to conditional permanent resident via Form I-485 at the same time as applying for the EB-5 Program via Form I-526E. This speeds up the EB-5 process and makes it easier for foreign nationals to live in the U.S. while their application is process.
4. Requiring USCIS to perform background checks on people involved in running a regional center, project developers, and other associated individuals
5. Empowering the Department of Homeland Security to inspect regional centers and regional center projects to ensure compliance.

Extension of the Regional Center Program, which lapsed in 2021, putting all EB-5 activity on hold. This extension by the RIA will be in place until 2027.

TEAs are specific type of geographical designation to encourage investment in areas with high unemployment rates or rural areas. The main purpose of TEAS is to promote economic development and job creation in areas that may have a higher need for such an investment.

Types of TEAS:

1. High Unemployment TEA: These are areas where unemployment rate is at least 150% of the national average unemployment rate.
2. Rural TEA: These are areas located outside of a metropolitan statistical area (MSA) or outside of a city or town with a population of 20,000 or more.

What is a good EB-5 project?

1. Any legitimate business qualifies – from any industry – including real estate, hotel operations, assisted living, manufacturing, research and development, retail, services. a. Must create or save 10 full-time jobs for U.S. workers for each EB-5 investor.
2. Jobs that involve new construction or rehabilitation of vacant structures tend to work best. If construction is expected to take more than two years, the jobs created directly by construction project will be counted toward the employment creation requirement.

What is the first step to apply for an EB-5 visa?

The first step is submitting Form I-526, Immigrant Petition by Alien Investor to U.S. Citizenship and Immigration Services (USCIS). By submitting this petition, the investor proves to USCIS that they meet all the criteria of the EB5 program:

1. They have invested the required amount in a new commercial enterprise (NCE).
2. Their investment will create 10 full-time jobs for U.S. workers.

Asset-based loans are the most common capital source. Loans are acceptable sources of funds, but investors must provide evidence that all assets and loans were obtained legally.

Can you apply for an EB5- while holding an H-1B visa?

If you have a valid, in-status H-1B visa, you are free to submit multiple petitions at the same time to United States Citizenship and Immigration Services (USCIS). Thus, you can take part in the EB-5 program while you are working in the United States without canceling your H-1B visa or any pending green card petition. All you need to do is maintain your H-1B status until the EB5 petitions you have filed with USCIS have been approved: first, I-526, Immigrant Petition by Alien Investor, and, subsequently, I-485, Application to Register Permanent Residence or Adjust Status.

How long is the EB-5 process?

The EB-5 visa process is one of the fastest and reliable ways for immigrant investors and their family to receive permanent residence status in the U.S. The EB5 process takes several years to complete.Total time required varies depending on factors such as:

1. The type of project
2. USCIS process efficiency
3. EB-5 visa demand from an immigrant’s home country
4. How straightforward or complex an individual’s case is
5. How thoroughly the forms have been submitted
6. The level of evidence provided to demonstrate compliance with all EB-5 program requirements.

What are the common challenges of EB-5?

1. Changes in policy:
   1. Changes in legislation can affect different aspects of the program.
   2. Denials and Requests for Evidence:
      1. If the USCIS believes not enough evidence exists to justify approval of a petition, it may issue a request for evidence (RFE) to collect further information. There is also the chance that the USCIS may issue a Notice of Intent to Deny (NOID), which signifies that the adjudicator believes the petition should be denied but wishes to present the investor the opportunity to clear up any areas of concern. Both of these notices may delay an investor’s petition and involve additional costs to revise the petition materials, for example, to consult with counsel.
      2. An investor has the option of requesting an administrative review if his or her petition is denied, but this involves a significant waiting period. Luckily, the approximate approval rates for I-526 and 1-829 petitions are 85% and 90%, respectively.
   3. Fraud
      1. a. Despite the efforts of the USCIS, the SEC, and other government agencies to enforce the legal aspects of the EB-5 program, cases like SEC v. A Chicago Convention Center, LLC, illustrate the risk of fraud when developers and other agents misrepresent elements of the program or individual projects to investors. However, such cases are relatively rare.
      2. Investors applying to the EB-5 program face unique challenges and opportunities. By providing thorough application materials and exercising due diligence, as with any other investment, investors can increase the likelihood of a smooth petition process.

1. Salary and wages from labor, services, etc.
2. Income from a business.
3. Income from a patent.
4. Funds earned from royalties on a publication.
5. Interest accrued on an investment or savings account may be put toward an EB-5 investment.
6. Loans to make EB-5 investments, as long as investors can prove that the loan provider sourced the loan funds legally.
7. Gifted funds from friends and family for EB-5 investments, as long as investors can prove that the gifted funds were acquired legally. Individuals with children older than 21 years of age, or those who do not want to immigrate to the United States themselves, may gift their children the funds to make an EB-5 investment.
8. Funds from criminal or civil legal settlements.
9. Inheritances.
10. Income gained from the selling of property.

What information and documentation is needed to qualify?

An investor must apply to the USCIS for EB-5 qualification through the submission of a number of required elements including:

1. USCIS forms
2. Business plans
3. Economic (job creation) predictions
4. Financial information
5. Other supporting evidence

A potential investor is required to file a form I-526 for Alien Entrepreneur in conjunction with the documents supporting the business in which the investment is being made, which satisfy the EB-5 Investor Visa program requirements. Upon approval of this application, the investor and immediate family (spouse and single children under 21 years of age) may apply for an Immigrant Visa at the US Consulate, or if the investor is already located in the United States, apply for adjustment of status at any regional USCIS office. The entire application process may take nine to fifteen months to be fully completed.

Is dual citizenship allowed under this program?

The U.S. allows dual citizenship, but your original country of origin may not allow it.

Can I apply if I am currently Out-Of-Status (i.e. you live in the United States but do not have a current visa)?

Out-Of-Status nationals are no longer permitted to apply for permanent residency from within the United States.

There are no requirements with respects to experience or education.

Can I apply if I’m been rejected or terminated in the past by USCIS for an L-1, E-2, B, or other visa?

Rejection in the past does not disqualify the applicant, unless the reasons are related to immigration fraud or other significant problems.

Why doesn’t any EB-5 offering guarantee a return of capital?

A central requirement of the program is that an EB-5 investor’s capital must remain “at risk” for the duration of the conditional residency period.

What issues have been the most problematic in EB-5 cases?

In an era when the federal government more closely scrutinizes foreign direct investment, USCIS case examiners require a well-documented source of funds.

What is a re-entry permit?

To maintain your green card, you have to keep from abandoning your residence in the U.S. You can travel out of the U.S. no more than 180 days without abandoning your residence. You can apply for a re-entry permit, which allows you to stay out of the U.S. for up to two years without abandoning your residence.

You can apply for a reentry permit (on form 1131) before you leave the U.S. You can depart before the reentry permit is approved. With such a reentry permit, you can also return to the US at any point until the reentry permit’s expiration date. Reentry permits are issued for two years. At the expiry of these two years, you can apply for a new one. The second such reentry permit will be granted for two years ago, but then onwards all subsequent ones may only be approved for one year at a time.

If outside of the United States for two or more years after being issued a reentry permit, a Returning Resident (SB-1) immigrant visa is necessary. While outside the United States, permanent residents are still required to file U.S. income tax returns, and failure to do so may jeopardize their status. Permanent resident status will be considered abandoned if a green card holder moves to another country and no longer intends to reside in the United States.

Can my green card be taken away from me?

Once you receive your green card, there are only two conditions required to keep it for life.

1. You must not become removable or inadmissible. The most common way to do this is to be convicted of a serious crime.
2. You do not abandon the United States as your permanent residence.

How long does a green card last?

By receiving your green card though an EB-5 investment, you should have a conditional green card for two years. You must apply for removal of the condition within 90 days before the two years are up. Once that is approved, you have a regular unconditional green card, which must be renewed after ten years.

What happens to the family’s applications for green cards if the investor dies before or after granting the green cards – provisional and final?

The second parent may take over as the principal applicant and the application continues. However, if you wish to not proceed with the application, the second parent may refuse to step in as principal applicant, in which case the application itself will be denied by USCIS.

After my I-526 petition approval, may members of my family have their consular interview in different countries?

Family members may interview in different countries. The country of origin or where the family has current ties is the standard interview site. However, a student attending school in the U.S. would not have to return to the country of origin; status can be adjusted in the United States at the district office of the USCIS

The purpose of the Consular application is to ensure that the investor and family members undergo medical, police, security and immigration history checks before the conditional permanent resident visas are issued. At the interview, the Consular Officer may address these issues and information printed on the I-526 petition, including the nature of the investment. If the investor and family are in the United States, they may apply to adjust their status at the appropriate office of the USCIS.

What are reasons the 1-829 petition may fail?

1. If the project does not create the jobs required.
2. Failure to maintain residency in the U.S.
3. Requirement of maintaining green card during conditional green card period.
4. The investor must spend no more than 180 days outside of the U.S.

After getting a green card, can an investor withdraw from an investment that created 10 jobs?

Once the permit green card (1-829) petition is adjudicated, investment capital may be returned.

What is a Reg D Investor vs. a Reg S Investor?

Any investor who conducts the entire investment transaction (from induction to execution of documents) outside of the U.S. at the time of the application may be considered Reg S Investor. Any investor inside the U.S for any part of the transaction must be a Reg D Investor pursuant to U.S. securities laws. A Reg D investor must be an accredited investor.

When will I be able to move to the United States?

An EB-5 investor is eligible to enter the United States to begin a period of conditional permanent residency once their I-526E is approved, a visa becomes available (if the investor is from a country affected by visa retrogression) and they go through a consular interview process or adjustment of status if already located in the U.S. on another type of non-immigrant visa.

The USCIS issues conditional green cards after approval of the 1526E petition. These green cards last for two years. Investors receive permanent green cards upon USCIS approval of the 1-829 petition.

What are the advantages of an EB-5 visa for prospective students?

1. Brings certainty to the admissions process. You do not have to wait for a student visa and take the risk of consulate closure or visa denial.
2. Lower tuition (in-state/out-of-state tuition vs. international tuition rates).
3. Opportunities to win scholarships or grants.
4. Available federal loans.
5. Freedom to choose educational courses. Not every course may qualify under the student visa program.
6. Broad internship opportunities.
7. Work while studying.

What is Visa Retrogression?

Under existing EB-5 rules, approximately 10,000 visas are allocated to the program each year. If all the 10,000 visas are used, each country is capped at a maximum of 7% of the total. As a result, countries with a large number of applicants may see a longer wait time to begin their period of conditional permanent residency. (USCIS posts quarterly updates on this topic)

When an unmarried child gets married, will he continue to hold the green card? Will a spouse of the child also be eligible for a green card?

The unmarried child, if a part of the I-526 petition, will retain the green card. Souses of children (dependent applications) are not eligible to join the petition.

After my I-526 petition approval, may members of my family have their consular interview in different countries?

Family members may interview in different countries. The country of origin or where the family has current ties is the standard interview site. However, a student attending school in the U.S. would not have to return to the country of origin; status can be adjusted in the United States at the district office of the USCIS.

Do I have to live in the same state where I make my investment?

No, you do not have to live in the same state as your investment. You can live anywhere in the United States.