November 29, 2023

Immigration Green Card

Immigration Is Good For You

Why EB-5 Immigrant Investors May Be Facing An Opportunity Of A Lifetime

4 min read

The Reform and Integrity Act passed in March of 2022 re-established the EB-5 regional center investor immigration program making it possible for foreign investors to immigrate to America. The regional center aspect is by far the most popular part of the EB5 program and over 80 percent of foreign investors have used it to apply for green cards. Most investors under the program in recent years have been arriving from China, India, and Vietnam. However, until now those investors were troubled by long backlogs that made the program untenable in many cases due to the long waiting periods involved. Not anymore, however.

Recap Of EB-5 Regional Center Program Requirements

To briefly restate the requirements of the regional center program, to qualify for immigration purposes foreign investors have to invest $ 800,000 in a rural, high unemployment or infrastructure program. Otherwise, the minimum investment amount is $ 1,050,000. The invested funds must create at least 10 new jobs within a period of about 2.5 years from when the petition is approved. Under the program, not only direct jobs but indirect jobs can be counted and economic studies are filed showing how a given project creates these indirect jobs. This is one of the best reasons why the regional center program is so successful. The regional center project must document how it will create at least 10 new jobs for each investor and the investor must document a lawful source and path of funds being invested. The two documented parts are filed together with the investor petition to start the process. The filing date of an I-526E petition for the investor is very important because it determines the priority date for the investor in the processing of applications. The money is tied up for a period of about five years with little or no interest paid on it.

Especially Useful To Investors Already In The USA

The EB-5 program is particularly useful to international students already in the USA, H1B workers, people with O, L visa status, and certain high net worth foreigners as well as even certain visitors to the USA. That is because the new act enables such individuals to file an application to adjust their status from within the United States to permanent resident status and to apply for an employment authorization document (EAD) as well as a travel document. While this is not possible for visitors who come to the USA with the intent to apply for permanent residence from inside, it is possible for those who come here for different reasons and then decide to apply. This so-called concurrent filing is not available to those who enter the USA on ESTA, however.

What is key is that the mere filing of an I-526E petition is sufficient to concurrently file to adjust status to permanent residence and for the work and travel benefits. Even certain individuals who have overstayed their period of authorized stay and even worked without a permit in certain cases can adjust under these provisions. But even investors who wish to apply from abroad will be able to benefit from the opportunity being presented although National Visa Center and overseas consular processing will take extra time before they will be able to arrive in the U.S.

Set-Asides Are The Key

The key development that is making everything possible is the creation of certain reserved visas, also called set-asides, that have been designated as priority areas for investment. That means those who invest in these areas, that is to say the rural projects (outside cities in areas with less than 20,000 people), high unemployment areas (with unemployment over 150 percent of the national average), and infrastructure areas will be processed on a priority basis, even ahead of those investors who are already lined up to be processed. Investors who invest in these set-asides go to the front of the line, (even Chinese, Indian, and Vietnamese investors), and they can all expect to be approved in say 2 to 3 years.

All these visa areas are current in the relevant State Department’s Visa Bulletin and are expected to stay that way for the rest of the 2023 fiscal year. Indeed, experts in the EB-5 area expect almost 11,000 unused visas to be available to EB-5 investor immigrants and their families in the 2023 fiscal year ending September 30th. That should be enough to make it possible for almost all applicants who apply for these set-asides at this time up until the end of September to qualify.

Indeed, according to Charlie Oppenheimer, currently an advisor with WR Immigration law firm and previously the person counting visas for the State Department under the EB-5 program, this year will be a unique year for the EB-5 program unlikely to be available again for foreign investors. Even those investors who are currently in the USA and have long ago filed their I-526 petitions can file for adjustment of status with a copy of their receipt notice evidencing the previously filed EB-5 petition.

Time To Act Now

In short, this is an outstanding time to apply to immigrate to the United States as a foreign investor. The door is open for the next eight months. It will take investors time to identify a suitable EB-5 regional center project, collect their funds, prepare the paperwork and establish the bona fides of their investments. This is the time to start.


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