US green cards through the EB-5 program are processed based on the country of birth and not nationality or residency
Recently, some GCC based EB-5 consultancy firms have published information which is inconsistent with the actual rules and regulations of the EB-5 Immigrant Investor Program and therefore, it has raised a concern among US lawyers and EB-5 industry experts in the GCC and abroad suggesting that such information could potentially harm the public at large. Preeya Malik, Managing Director at Step Global, clarifies in the interview below the current status of the EB-5 program for all those who are interested in receiving accurate information about this popular US Green Card Program.
Do UAE Residents or GCC Residents get priority under the US EB-5 Program?
No. The notion that UAE or GCC residents have a benefit or priority over other applicants in the EB-5 Programme due to their residency status, is simply incorrect. The statement ‘UAE residents are priority for the Green Card’ has been published multiple times recently in the UAE, and this statement has alerted EB-5 industry experts in the US with concerns as to how this misleading statement may negatively impact those considering the EB-5 program given this false expectation.
“There is no priority for UAE Residents under the EB5 Visa Program. Green cards are granted based on the country of birth and not on nationality or residence,” states Abhinav Lohia, a US licensed lawyer and director for a prominent EB-5 Regional Center based in California.
“The US EB-5 Program does not prioritize visa issuance based on where an applicant resides. Rather the State Department is supposed to issue visas first to non-backlogged countries and then to backlogged countries if there any visas leftover. Additionally, visa issuance is based on an applicant’s country of birth, not country of residence. For example, if you’re an Indian-born national living in Dubai, you fall into the India category, not Dubai,” says Niral Patel, US licensed lawyer and partner at KLD LLP.
The US government allocates 10,000 green cards annually under the EB-5 Programme with a seven per cent cap on each country. In order to assess an application, an applicant’s place of birth (a place which cannot be changed by attaining a new passport or residency) will be used to determine which country they fall into under the cap.
National Visa Center (NVC), the US government body tasked with processing US visa petitions has always allocated EB-5 visas on the basis of where an applicant was born and not where one resides or what passport one holds. Therefore, it is impossible that simply obtaining residency in a third country can give priority to an individual who has applied for a US Green Card through the US EB-5 Program, including for those who hold a UAE or GCC residency. There is no such provision in the EB-5 legislation.
Does the US Government run a US Golden Visa Programme?
No. The US government does not run any Golden Visa program and there is no such official visa category named US Golden Visa. The term US Golden Visa has been used outside of the US as a marketing tool to attract investors. The correct term for the US investment immigration program, and its reference made to by industry experts, is the US EB-5 Immigrant Investor Program. This term can be searched online to find any official US government correspondence about the option of investing for a US Green Card.
In fact, stating that the US is providing Golden visas is ambiguous and may confuse the general public as there are many significant technical and functional differences between golden visa category of other countries and the US Green Card. Namely Golden Visas provide a temporary residency status in its own immigrant category under the law. However, the US EB-5 program results in direct permanent residency with the same rights and benefits as any other green card holder in the US.
Can I get a US Green Card within months?
No. The statement that a green card can be obtained ‘within months’ is not relevant if we consider present processing times taken by the US authorities to process and issue the Green Cards. Consultants and lawyers with practical years of experience in the EB-5 industry can safely say in actuality it is impossible to obtain your green card in hand within months or less than a year at this point in time. As the EB-5 application must go through multiple departments and authorities such as USCIS, National Visa Center and local embassies, there is a certain amount of time that goes by while the above-mentioned agencies process the application.
Some EB-5 qualifying projects are approved for a National Expedite. These are projects which the US government deem as important or of national interest. Investors in those projects may experience quicker approvals of their EB-5 petition, however, the subsequent multistage process remains the same. Therefore, even in these cases, although one can get an approval within months, the actual green card will not be obtained within months.
Is there any way to get faster EB-5 processing?
Yes. Reserved categories introduced by the US government in March 2022, allow investors to be processed in separate lines depending on the category they choose. Reserved categories include projects in Targeted Employment Areas (TEA), rural, and infrastructure, for which the US government has set aside a certain number of visas specific to these categories. As a result of these categories being only one year old and being processed separately than the unreserved pool, it is assumed that these investors will be processed faster than anyone in the unreserved pool.
For investors born in India or China specifically, who are currently experiencing a backlog in the unreserved category, investing in one of these reserved or set-aside categories will allow them to avoid the backlog and get faster processing than those who have invested in unreserved categories.
Although in March 2022, USCIS also announced that they will give ‘priority’ to those who invest in a rural project, and although we expect all the reserved categories to be processed faster, it is too early to determine how fast the processing in these categories will actually be, and what the term priority means for rural investors.
Is there any way to access the US before getting the Green Card approval?
Yes. In March 2022, the US government also announced that those who have applied for a green card through the EB-5 Program and who are in the US on a legal visa status can concurrently file an Adjustment of Status to access the US immediately while their EB-5 petition is pending. Access includes legally living and working in the US while the applicant waits for a green card.
Through this process they will be able to obtain an open employment authorisation document and a travel document. Once approved, these will allow the applicant to openly work in the US for any employer without sponsorship, and travel in and out of the US while their EB-5 green card application is pending.
This option has been ideal and somewhat of a game changer for those who do not want to wait for their green card to be processed before reaping the benefits of being a US resident.
Has the US EB-5 Programme undergone any reforms recently?
Yes and No. Although the US government has introduced reforms to the US EB-5 Programme, the reforms are not recent as it has now been a year since these changes have been implemented. The US government passed the EB-5 Reform and Integrity Act in March 2022.
Under these reforms, many changes were made to the EB-5 Programme, including strict compliance for Regional Centers and projects, guideline and requirements for foreign consultants, greater protection and security for investors, and more oversight by the US government departments on the EB-5 Programme as a whole.
Does the US government regulate EB-5 consultants?
Yes. Previously, there was no US government supervision or checks on foreign EB-5 consultants. However, since the aim of the EB-5 Reform and Integrity Act of March 2022 was to clean up the EB-5 industry and offer greater protections to investors, the US government has also introduced strict compliance for those who are providing EB-5 marketing and immigration services outside of the US.
All foreign consultants must now file a form I-956K with USCIS so that they are registered in the US government database. The form must be signed by an authorised signatory of the foreign consultancy and background checks will be undertaken by the US government to ensure consultants do not have any criminal record.
Consultants will also produce their foreign trade license or any other certification, such that the US government can ensure consultants are properly licensed to provide EB-5 services abroad. Under the law there is an additional compliance requirement for any consultant who holds US Green Card and/or citizenship. Such consultant must be registered with US Securities and Exchange Commission.
Leading EB-5 Regional Centers who are following these new compliance guidelines heavily are also ensuring that any foreign consultants they are working with are aligned with these measures. For investors, choosing a consultant who complies with these regulations is also imperative to the success of the EB-5 petition and ongoing assistance throughout the EB-5 process.
Is it important to work with top EB-5 Regional Centers?
Yes. Choosing and working with only the leading Regional Centers in the EB-5 industry is extremely important. A Regional Center is an administrative body which has applied to the US government and been approved to host or take on EB-5 eligible project. Regional Centers partner with US based projects, raise funds from overseas investors for these projects, and assist investors and their consultants and lawyers with the project portion of the EB-5 application.
“Although all Regional Centers must be licenced, only a few have been in existence long enough to have successfully completed full EB-5 cycles for thousands of investors including return of EB-5 funds, cultivating high levels of experience in the industry including remaining up to date on current regulations, and taking government compliance very seriously to maintain their licensure,” states Preeya Malik, Managing Director of Step Global, a licensed EB-5 specialised advisory firm based in Dubai.
She continues, “As a US licensed lawyer, I have ensured that Step Global is compliant with both UAE and US government regulations as an EB-5 consultancy, and as a result, have been privileged to be the only GCC consultancy with projects from all top five Regional Centers in the EB-5 industry. Thus, conveniently providing investors from this region with access to all the best options in one place.”