U.S. Citizenship and Immigration Service (USCIS) has announced new EB-5 regulations that will be published tomorrow (7/24/2019) and become effective on 11/21/2019. These are the first significant changes to the program since it was created by U.S. Congress in 1990. Our firm will be providing more details soon, but major changes include:
1) New Investment Amounts: The minimum investment amount will be $1.8 million. Projects located in Targeted Employment Areas (TEAs) will have a minimum investment amount of $900,000. However, changes in TEA designation process may make it extremely difficult for most projects in desirable areas to qualify for TEA designation.
2) Modified TEA Designations: TEA determinations will rest with USCIS and will likely be much narrower due to limits on aggregating or combining contiguous census tracts. If projects are limited to a single or “directly adjacent” census tracts, it may make most projects $1.8 million.
3) New Rules for Priority Date Retention: Petitioners will be able to retain their Priority Date from previously approved I-526 petitions if they later have to file a new I-526 petition. This flexibility protects investors who have approved I-526 petitions but may have their eligibility jeopardized due to circumstances out of their control (such as Regional Center termination). This flexibility also allows some creative switching in investment strategies after filing without jeopardizing Priority Date. No gifting or transferring Priority Dates from primary applicants/petitioners to derivative beneficiaries.
4) I-829 Flexibility: Derivative Family Members must file their own petitions at the I-829 stage if they are not included on the investor’s own I-829 petition.
It is important to understand that these new regulations will become effective on 11/21/2019, 120 days from the date of publication in the Federal Register. “Properly filed petitions” before that time will be adjudicated under current EB-5 rules. (Note: Please keep in mind that given the 120-day window before the regulations are effective, there is a chance that the EB-5 program may be reauthorized (prior to 9/30/2019) with new reforms making these new regulations from USCIS moot through a new reauthorization statute.)
We now have 120 days before these new regulations become effective. Our dedicated EB-5 group has filed thousands of EB-5 petitions during the past two years and have worked closely with our partners/clients to successfully file their EB-5 cases prior to meet various timelines. Our current partners and clients are advised to contact us immediately to ensure all cases are properly submitted before these new rules come into effect on 11/21/2019.
Last Friday (December 7, 2018), President Trump signed a 2-week “stopgap” (a.k.a. extension) spending bill that allows the U.S. government to continue operating until December 21, 2018. This extension also includes allowing the EB-5 regional center program to continue until December 21st. Congress and President Trump are still negotiating what to do after December 21st. There are a number of issues that are being debated right now, including funding to build a wall on the U.S. Mexico border.
While we do not expect EB-5 to be discussed or debated in Congress right now, we do expect the EB-5 regional center program to be continued to some point in time next year. We will let our readers know more as soon as we learn more.
We urge you to contact us with any further questions you may have about the EB-5 immigrant investor program or any other U.S. immigration program. Our team of successful corporate immigration attorneys can help you.
With EB-5 regional centers being the most popular avenue for EB-5 visa applicants, many do not realize that direct investment as a path for obtaining an EB-5 visa holds many opportunities as well. In fact, the direct EB-5 investment pathway is underutilized among foreign nationals seeking an EB-5 visa. What is even more notable is that while the regional center program must be reauthorized by Congress, and thus is currently not a permanent option for seeking an EB-5 visa, the direct EB-5 investment option is a permanent law. This means that, absent some affirmative action by Congress to repeal the law, is the direct EB-5 investment pathway will always be available to immigrant investors.
Passive versus Active EB-5 Investment
Part of the appeal of the regional center program is that EB-5 regional centers allow EB-5 investors to take a more passive approach to investing funds. For many visa seekers, this is simply an easier way to invest, and that is understandable. Perhaps that is why over 95% of EB-5 visas granted each year are given to investors choosing to utilize the regional center program. However, for those who wish to utilize direct investment, it is not nearly as difficult as one might assume. It’s true that direct investment projects often require more involvement, but for many investors, that winds up being a very good thing. It is also possible to structure direct EB-5 investments as a type of passive investment.
A Multitude of Opportunities – Franchises
By using the direct EB-5 investment option, EB-5 visa applicants have a wider variety of opportunities to pursue. One of the best avenues is to become a franchisee for a brand well-established in the U.S. There is a huge benefit to investors who pursue this choice, as franchises make a great deal of information available to potential investors ahead of time (i.e. franchise disclosure documents and other public records). Compared to the information typically available through EB-5 regional center investments, the franchise route may offer a greater chance to evaluate success. In addition, franchising is regulated by both federal and state governments; in most cases far more so than passive regional center investments. Many franchises typically undergo regular audits and provide annual (or other regularly-scheduled) updates to investors. The investor also retains more control over the course of a direct EB-5 investment.
There are some drawbacks to using direct EB-5 investment as a path to the EB-5 visa, but many advantages also exist. The best advice is to have an experienced EB-5 visa attorney evaluate your particular situation. Call the expert EB-5 lawyers at David Hirson & Partners, LLP today to discuss your options with us.
Telephone: (949) 383-5358 Email: firstname.lastname@example.org Website: www.Hirson.com
This post is created to answer the following:
- What is EB-5 retrogression?
- What will happen at the end of the fiscal year to visas that have not been used and how will they be allocated to the “oversubscribed” nations such as China and Vietnam?
- How long will retrogression for Vietnam last and why is July 22, 2014 the cut-off date?
- What is the impact of retrogression on children who are close to turning 21 at the time of I-526 filing?
Each question is answered, in order, below:
- General EB-5 Retrogression
10,000 visas are allocated annually for the EB-5 category and applicants from all countries are treated equally until it appears that the entire annual allocation will be used up during the fiscal year. When this happens, applicants from countries that use more than seven percent (7%) of the worldwide total (also known as “oversubscribing countries”) must wait for a future year’s allocation to be available before they can obtain a green card.
This does not mean that 7% of visas are set aside annually for each country in the world. Nor does this mean that any single country has only 7% of allocated visas annually. All this means is that any one country’s allocation is capped at 7% so long as other countries are taking up available visas. When other countries are not competing, then any visas that are “unused” are allocated to the waiting line in a first in first out (“FIFO”) order exclusive of per-country limits.
Exceeding the 7% Cap
When more than one country exceeds the 7% cap, then the oversubscribed countries are issued cut-off dates designed to let applications from not-oversubscribed countries proceed first. Once qualified applications from other countries have been accommodated, then simple FIFO order is instituted, i.e. oldest priority dates get the first visas until all visas for the year are taken, China being the biggest benefactor.
- Allocation of Unused Visas for Vietnam
Currently, China is at the head of the line for leftover visas, since it has been held back for years and thus applicants from China have the oldest applications on file. Applicants from Vietnam will now find themselves behind longer-pending Chinese applicants as per the FIFO rule discussed above.
Given the situation that Vietnamese applicants are not faced with, the positive is that Vietnam will at least receive 7% of visa allocations a year when they need it and likely will not exceed that cap by very much. If an applicant from Vietnam is held back this year, then he or she will be one of the older Vietnamese applications next year and therefore in a favorable position to receive one of the 700 new visas available to Vietnam at that point. Vietnamese applicants will not necessarily be able to rely on receiving a visa left over from the rest of the world, since thousands of Chinese applicants have earlier claim on any leftover visas.
- July 22, 2014 Cut-Off Date
As of the May 2018 Visa Bulletin, only Vietnamese EB-5 applicants who filed before July 22, 2014 will be eligible to receive an EB-5 immigrant visa. Please see below:
The Department of State, who is responsible for establishing cut-off dates, does not release how priority dates/cut-off dates are calculated or even when and how the priority date will shift. Each month, we check the visa bulletin to check and see if dates are progressed, however, until then, we are working with EB-5 priority date of July 22, 2014 for Vietnamese applicants.
- Impact on Children Reaching 21
As you are aware, once a child reaches the age of 21, he or she is no longer eligible for immigration benefits based on their relationship to the primary parent applicant. This is known as “aging out.” For applicants whose children are close to aging out, the Child Status Protection Act (CSPA) provides relief in some cases, but not in all.
CSPA was created by the U.S. Congress to prevent children from aging out during the USCIS petition approval process. This Act, freezes a child’s age on the date the I-526 is filed through the date the petition is approved. The law allows the child to deduct the time the petition took to be adjudicated from his or her actual age, which allows the child to remain under the age of 21 at the time of applying for an immigrant visa abroad or filing for adjustment of status in the U.S. Once the I-526 petition is approved, the child’s age unfreezes and he or she must seek to acquire permanent residence within one (1) year of a visa becoming available.
Effect of Retrogression
However, when EB-5 retrogresses for a country such as Vietnam, protecting under CSPA becomes more complicated. If the period of retrogression is less than the period of USCIS I-526 adjudication, a child who has turned 21 will likely still be able to immigrate with his or her parent. However, if the visa cut-off date is too far back, the child may still “age out” even after using CSPA to reduce the child’s age. An analysis of CSPA will need to be conducted on a case by case basis at the time of filing Form I-526.
Please note, this post is created solely as general information. You should consult a licensed attorney for legal advice to determine the best course of action for your situation. The experienced EB-5 attorneys at David Hirson & Partners, LLP are available to help you.
Telephone: (949) 383-5358 Email: email@example.com Website: www.hirson.com
There are two overarching questions when it comes to EB-5 immigration: time and money. The money necessary to secure an EB-5 visa is relatively easy to predict. It depends, of course, upon whether the individual applicant is investing under the current normal minimum of $1,000,000, or investing into a Targeted Employment Area, in which case the minimum investment is currently reduced to $500,000. A much more difficult calculation is the one relating to the wait time to obtain an EB-5 immigration visa. Here are some of the more notable variables affecting wait times.
Country of Origin
The applicant’s country of origin can have a significant effect on the wait time between initial application and conditional permanent residency. Mainland Chinese-born applicants are overrepresented in the EB-5 program. As a result, there is a per-country limit that causes current estimated wait times for 2017 and 2018 mainland Chinese-born applicants to soar to 9+ years. Just a few years ago, in 2014, the anticipated wait time was around a third of that. Applicants from countries that have not reached the per-country cap have the chance to jump ahead of Chinese applicants. This can significantly reduce their own wait time, but consequentially increase those of Chinese applicants.
Annual Quota on EB-5 Visas
Another factor to consider is the annual quota on the number of available visas. The current annual allotment is 10,000 EB-5 visas, with some years issuing slightly under that amount and some years slightly more. There has been congressional talk to reduce the annual quota, which would extend current wait times for applicants from all countries, but especially for Chinese applicants. However, should the quota rise in the future, it has the potential to bump up wait times for all applicants. Even a 10% ceiling raise might notably decrease the wait.
However, another major constraint is the United States Citizenship and Immigration Services’ (USCIS) capacity to process petitions. Even if the quota were to rise in years to come, we might still experience a bottleneck in the overall process due to USCIS capacity to get applicants through the I-526 adjudication and other processing steps. The limited capacity of USCIS to move applicants through the system is the third major variable to the EB-5 immigration timetable. USCIS has taken steps over the past two years to address this bottleneck with promising results.
Having an experienced EB-5 immigration lawyer on your side is an important and invaluable asset when navigating the EB-5 immigration process. Contact David Hirson & Partners, LLP today for help with your EB-5 immigration process.
Telephone: (949) 383-5358 Email: firstname.lastname@example.org Website: www.hirson.com
David Hirson and Nima Korpivaara of David Hirson & Partners, LLP Recognized Again as Two of the Top Twenty-Five Immigration Attorneys by
Eb5 Investors Magazine
Both Mr. David Hirson and Mr. Nima Korpivaara were again recognized as being two of the top twenty-five immigration attorneys in the EB-5 industry. Every year, Eb5 Investors Magazine polls the EB-5 industry to find out who is contributing most to the industry. David and Nima, both partners at David Hirson & Partners, LLP (“DHP”), have been recognized by this poll for the last few years. David and Nima are grateful and proud to be recognized by their hard-working peers. Both would like to thank the hard-working attorneys and staff at David Hirson & Partners, LLP who work tirelessly to ensure their clients achieve their corporate immigration goals.
The same issue of Eb5 Investors Magazine also included an article co-written by DHP’s Mr. Phuong Le (along with Aaron Goforth of Baker Tilly Capital and Osvaldo Torres of Torres Law P.A.). “Practical Steps for Investors in Traditional & Merging Markets Considering Regional Center Versus Direct EB-5 Investments” discusses some considerations potential investors should take into account when it comes to selecting the route for their EB-5 investments.
Telephone: (949) 383-5358 Email: email@example.com Website: www.hirson.com
DATE: November 10, 2017
FROM: David Hirson & Partners, LLP
SUBJECT: Summary & Analysis from USCIS IPO EB-5 Stakeholders Meeting – November 7, 2017
*NOTE: The following is not intended to be legal advice. Please consult with your counsel for advice specific to your situation and needs.
The U.S. Citizenship and Immigration Services’ (“USCIS”) Immigrant Investor Program Office (“IPO”) hosted an EB-5 Stakeholders meeting in New York on November 7, 2017. IPO representatives provided some valuable guidance into issues while leaving many questions yet to be answered. Please see below for a summary/analysis of pertinent points:
- Processing Order for I-526 Petitions – No “FIFO;” Project First, I-526 Petitions Second
IPO went as far as to admit that they do not adjudicate I-526 petitions on a strict “First In, First out” (“FIFO”) basis. Rather, IPO organizes adjudication of EB-5 petitions by individual projects and each adjudication team is assigned certain projects which are adjudicated after coming in and the team has capacity to move on to adjudicating that project.
The main takeaway is that project review always comes first, followed by the associated I-526 petitions on a FIFO basis. Thus, there are two scenarios that illustrate when the FIFO “clock” for the investors actually begins:
- Projects with Exemplar
In this situation, IPO will review project documents first and then adjudicate all associated I-526 petitions afterwards.
- Projects without Exemplar – Project Review begins after Two I-526 Petitions are Received
If an exemplar has not been filed, IPO will generally wait to receive at least two (2) I-526 petitions for a project before reviewing the project documents. If the project is EB-5 compliant, IPO will then adjudicate the remaining I-526 petitions.
Thus, it may become a practical necessity for Regional Centers/Projects to file exemplars, whenever feasible, if the goal is to speed up I-526 adjudication. It is already becoming a standard expectation from the EB-5 market, so not much may change.
- Exemplar Filings – Include a List of Associated I-526 Petitions
IPO made it clear that when filing an I-924 Exemplar, it would make their life easier if a cover letter listing all I-526 petitions filed under that exemplar was included. Note that Regional Centers should already have this information on file and the list would be similar to the supplement that is filed with the I-526 petitions. On approval of an exemplar, it may be advisable to update the list of filed I-526 cases associated with the project.
- Filing of Form I-924A
For the annual I-924A report, IPO stressed that they want RCs to provide accurate accounting/estimates of job creation for all projects under sponsorship.
Specifically, IPO expects “live updates” on the number of jobs created for the Fiscal Year being reported on. Regional Centers should calculate job creation by using (1) the same economic methodology that’s contained in their project’s economic report and (2) updating the corresponding job creating inputs for the past Fiscal Year.
In plain English, projects need to take the budget (or other input used in the economic report) they submitted with their business plan and update what progress they have made that fiscal year. Essentially, it is a yearly update one usually prepares for the Form I-829 petition’s job creation analysis.
Note that the information must be based on the past Fiscal Year to be credible and it’s no longer acceptable to merely count jobs based on the number of approved I-829 petitions.
Finally, the I-924A must be filed at the California Service Center (not the IPO office) by December 29, 2017.
- Material Change & Switching Projects/RCs after I-526 is Filed
This was the longest discussion during the call. All roads lead back to Matter of Izummi and Chapters 4 & 5 of the Policy Manual, but even then, it is unclear if IPO is understanding the questions being asked. This will probably be revisited in a future stakeholder engagement.
One major issue that was discussed was when can an investor safely transfer to a second project if there’s a problem with the Regional Center or project. Part of the answer here depends on if the contemplated switch is to occur before or after the investor receives Conditional Permanent Residence (CPR). However, not much clarity has been provided after that.
- Before CPR (I-526 Pending Adjudication)
Unfortunately, there are not many options for the investor here. IPO stated that the following scenarios will be considered a material change if it occurs before an investor attains CPR and consequently will result in grounds to deny an I-526 petition: RC termination/loss of designation (even if another RC takes over the project), switching NCEs, and switching projects/JCEs.
It appears that IPO is taking the stance that if a project is under investigation and a receiver is appointed to take over the NCE/project, then this is not necessarily a material change. It appears that the rationale is that if the underlying purpose of the NCE remains the same, the project remains the same, and that the project will otherwise be completed, then a mere change in management of the NCE will not necessarily negatively impact the investors. However, whether this is true is unclear.
On the other hand, IPO appears to be taking a hardline stance that if the RC is terminated or loses its designation, then that is an automatic material change and consequently a denial. This was a controversial point and was met with immediate resistance.
- Between CPR and Filing of I-829
If the investor has obtained CPR, then he has a few more options. IPO appeared to allow an investor to switch projects, but was unclear what procedures or steps must be taken. It appeared that IPO was stating that it would only be acceptable if the funds are returned to NCE1, which will then invest into NCE2 and the second project. It appears that IPO is also requiring NCE1 to remain operational during this entire process.
- Reinvestment of EB-5 Funds into a Second Project (Scenarios)
The following are the scenarios that were also discussed and ones that are likely to be encountered in situations involving a failed/troubled investment:
- If a project has failed, but the EB-5 funds were not spent (i.e. money held in escrow), then can the funds be reinvested to another project where 10 jobs have been created? Likely answer is yes, but must be aware of timing so that the reinvestment is not considered a material change.
- If the funds have been spent, and the project fails so that the investment has been completely lost, can the investor become a member of a new NCE with no further investment and no jobs created or insufficient jobs created by the first JCE? – Likely answer is no.
- If funds have been spent, only 5 jobs have been created, can remaining funds be redeployed to another project to create 5 more jobs to meet the required 10? May have to deal with both a timing issue (for material change) and a nexus issue (would some of the EB-5 funds have to be invested in Project 1 and Project 2 to establish nexus?).
- Completed Project – Redeployment of Funds
- If funds have been spent, 10 jobs have been created, however, I-829 is pending (e.g. China backlog), so funds must be redeployed to another project to ensure funds are “at risk.” If 10 jobs have already been created by the first project, is the investor required to create another 10 jobs from the second project? – EB-5 eligibility is already locked in. (this is true even if RC is terminated at this stage).
- Bridge Financing
There is apparently some controversy about how IPO is deciding what is acceptable bridge financing for EB-5 projects, but without specific facts, it’s unclear if this is a widespread policy change or a problem with an individual case/rogue adjudicator. One issue that IPO was adamant about was that when EB-5 funds are being used to repay bridge financing, the EB-5 funds must flow from the NCE to the JCE, who can then pay the bridge facility. The NCE cannot pay the bridge facility directly (because the EB-5 funds would not be made “fully available” to the JCE).
Typically, when discussing bridge financing, the focus is generally on 3 factors: (1) temporal (when must it be contemplated), (2) procedural (do you need a MOU or agreement), and (3) nature/purpose of financing being repaid. Of the three, the last one is arguably the most important.
Implicitly, for bridge financing to be acceptable the “short-term” financing that is being repaid with EB-5 funds must have been spent on costs related or necessary to the project (in other words, a project-related nexus). On one end of the spectrum, a short-term loan to pay for construction costs in advance of the EB-5 loan closing is uncontroversial. On the other hand, IPO has specifically rejected (including during this call) the use of EB-5 funds to buyout developer/owner equity or to pay down permanent financing. This makes sense if we look at it from an economic policy standpoint. The first situation has a direct nexus to the project’s development and thus creates economic benefits to the surrounding community. The second situation provides no economic benefit (or jobs) to the community because EB-5 is being used to facilitate a paper transfer of wealth or to refinance and help lower the cost of capital for a project.
Our firm will share our thoughts on this issue in a separate article, but we expect this topic to be revisited again in a later engagement.
- Miscellaneous Points:
- I-485 interviews will become a standard requirement for all petitions, including EB-5 petitions.
- A number of practitioners (including our office) have reported that they never received physical copies of RFEs/NOIDs despite receiving online case updates that they have been mailed out and requesting them from CIS Customer Service. Thankfully, IPO said they are aware of the issue and that it should be resolved now.
- IPO reiterated that the only way for a RC to expand its geographic designation is through a Form I-924 filing.
- IPO again confirmed that the “sustainment/at-risk period” ends once the two-year CPR period is over.
Contact our expert EB-5 team at David Hirson & Partners, LLP for more information about you specific EB-5 situation and needs.
 For reference, a material change is one that affects an investor’s decision-making at the time of filing the I-526 petition. Under Matter of Izummi, a petitioner must establish eligibility at the time of filing and that a petition cannot be approved if, after filing, the petitioner becomes eligible under a new set of facts or circumstances.
Modeled after other countries’ investor visa programs, the U.S. Congress established the EB-5 Immigrant Investor Program in 1990. This program creates jobs for U.S. workers by using investment funds from foreign nationals.
Here is more information about the program as well as a timeline of significant events. Please contact our experienced team of EB-5 attorneys to find out more.
Revised on 5/3/2019.
David Hirson & Partners, LLP is proud to support the EB-5 industry in India. India continues to show great potential as the next market of interest for the EB-5 world. Conditions in both India and in the U.S. are making EB-5 a more attractive immigration option for Indian nationals looking to immigrate.
Mr. David Hirson, Esq. and Mr. Niral Patel, J.D. will be at both events helping to educate interested parties about EB-5 and its intricacies. If this is a path that you have been contemplating, you should consult with an experience EB-5 attorney to make sure all your family’s immigration needs are met. Please contact our experienced team of EB-5 professionals to see how you can start on your EB-5 journey from India to the U.S.A.
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Phone: +1 949.383.5369
David Hirson & Partners, LLP has over 30 years of experience in corporate, business & investment immigration law. Our business immigration practice provides a full range of services, including a nationally recognized EB-5 investment immigration practice.