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Immigration Law Attorney

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What is the EB-5 program?

EB-5 is an investment/employment based immigration pathway. In 1990, the U.S. Congress enacted the Immigration Act of 1990 Investor VISA program. Section 121(b)5 of the Immigration Act created the EB-5 immigrant visa category to stimulate the U.S. economy. 

This visa category is aimed to bringing in qualified foreign citizens who want to obtain permanent residency or citizenship in the U.S. by requiring them to invest $1 million to a business that will benefit the U.S. economy and create at least directly 10 full-time jobs for U.S. nationals, not including the members of the investor’s family for at least two years.

However, the program was no successful in attracting foreign investors. In 1992, Congress expanded the program to include the Immigrant Investor Pilot program (as known as Regional Center Program). In the Regional Center Program, if investors make capital investment in rural and high unemployment areas, they only need to invest $500,000 in lieu of $1 million.

In exchange of the investment, the U.S. Citizenship & Immigration Services (USICIS) gave investors’ family (spouse and children under 21) conditional permanent residence for two years. At the end of the two-year period, investors need to file additional documents to remove their condition and to apply for permanent residency (renew after every ten years). USCIS oversees this program. The law allows the USCIS to issue maximum of 10,000 Green Cards each year.

EB-5 Regional Center (“RC”)

 

In 1992, Congress created the temporary three-year Immigrant Investor Pilot Program to attract investors to the EB-5 visa by allowing them to invest $500,000 to a EB-5 Regional Center. This new program lowered the $1 million requirement and allowed investors to have the EB-5 Regional Center manage their investment without too much personal involvement. Basically, Congress allowed foreign citizens to spend $500,000 to buy the U.S. Green Cards.

Again, this new program was pampered with loopholes and investor frauds. The investors were not completing their total investments and jobs were not created as planned.

In 2002, to fix those programs, USCIS issued new guidelines requiring Regional Centers to invest the full $500,000 before submitting their I-526 petition. USICIS also increased its scrutiny on Regional Center compliance and checking for frauds.

The initial RC program was set to expire after 5 years of its enactment. But Congress has extended this RC program ever since. The most recent extension was made on December 22, 2017, President Trump signed Public Law 115-96, extending the RC program until January 19, 2018.

 

Two Options – RC and Direct Investment

Now, there are two distinct EB-5 pathways for an immigrant investor to apply for permanent residence— the Basic Program and the Regional Center Pilot Program. Both programs require the immigrant investor to contribute either $500,000 or $1,000,000 depending on whether the investment is a Targeted Employment Area (TEA). The invested regional central must create or preserve at least 10 full-time jobs within two years of the immigrant investment’s admission to the U.S. as a Conditional Permanent Resident, not including investor and investor’s family members. However, the full-time positions can be created either directly or indirectly by the business.

  • Direct jobs are the jobs that establish an employer employee relationship between the invested business and the persons it employs.

  • Indirect jobs are the jobs held outside the invested business, but they are created as a result of the invested business.

  • These jobs must be performed by U.S. citizens, lawful permanent residents, conditional resident, asylee, refugee, or other immigrants authorized to work in the U.S. (note H1B is a nonimmigrant visa).

  • Full-time means the employee must perform at least a minimum of 35 working hours per week. And these jobs should last at least 2 years.
     

A regional center seeking to participate in the Regional Center Program must submit a proposal using the Form I-924 (Application For Regional Center Under the immigrant Investor Program). USCIS may designate a regional center based on a general proposal for the promotion of economic growth, including increasing export sales, regional productivity, job creation, or increasing domestic capital investment. The Regional Center proposal may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from immigrant investors

 

What Can Investors Invest?

EB-5 investors need to make capital investments. These capital investments can be in forms of cash, equipment, inventory, other tangible property, and debts secured by assets owned by the investor only. Assets acquired via unlawful means are not counted as capital investments.

 

What is a Regional Center?

A Regional Center is not a geographic area. It is a business entity that coordinates foreign investment within that area in compliance with the EB-5 statutory, regulatory, and precedent decision framework. There can be multiple RCs in a geographic area.

A RC must:

  • Focus on a continuous geographical region of the U.S.

  • Promote economic growth through:

  1. Increased export sales (if any);

  2. Improved regional productivity;

  3. Job creation, and

  4. Increased domestic capital investment;

  • Demonstrate in verifiable detail how jobs will be created, either indirectly or directly.

  • Commit sufficient funds to promote and oversee capital investment opportunities in the RC.
     

Location of a RC

As mentioned earlier, RC must be principally doing business in a targeted employment area (TEA). A TEA is a “rural area or an area that has experienced high unemployment of at least 150 percent of the national average.” A rural area is “any area not within either a metropolitan statistical or the outer boundary of any city or town having a population of 20,000 or more according to the most recent decennial census of the United States.” Or a state government via a letter can designate a geographic or political subdivision located outside a rural area but within its own boundaries as a high unemployment area.

In Nebraska, a TEA can be requested to the State government. Then the State government will try to get the requested area designated.

 

How long does it take for a regional center proposal?

The USCIS website says it take approximately 4-5 months to process the proposal. While the application is pending, if you received investments, these investments must be deposited in a safe third-party escrow account. Do not spend a penny until the regional center has been approved.

 

How many projects can a RC have?

  • A RC may be associated with one or more new commercial enterprises.

 

Roadmap to a RC.

  • Must submit a proposal using the Application for Regional Center under the Immigrant Investor Program (Form I-924)

  • Prepare a proposal that must:

    • Clearly describes how the regional center focuses on a geographical region of the United States and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment;

    • Provide in verifiable detail how jobs will be created directly or indirectly;

    • Provide a detailed statement regarding the amounts and sources of capital which have been already committed to the regional center;

    •  Provide a description of the promotional efforts taken and planned by the sponsors of the regional center;

    • Include a detailed prediction how the regional center will have a positive impact on the regional or national economy based on factors such as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and

    •  Be supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, or multiplier tables.

    • Include a management and operational plan to administer, oversee, and manage the proposed regional center, including but not limited to how the regional center:

      • Will be promoted to attract immigrant investors, including a description of the budget for promotional activities;

      • Will identify, assess, and evaluate proposed immigrant investor projects and enterprises;

      • Characterizes the structure of the investment capital it will sponsor; for example, whether the investment capital to be sought for job-creating companies will consist solely of immigrant investor capital or a combination of immigrant investor capital and domestic capital, and how the distribution of the investment capital will be structured (for example, loans to developers or venture capital); and

      • Will oversee all investment activities affiliated with, through, or under the sponsorship of the proposed regional center.

  • Types of RC Projects

    • Actual Projects

      • A very detailed business plan supported by evidence.

      • Must file a Supplement to Form I-924A to renew its eligibility.
         

    • Hypothetical Projects

      • Business plan describe the hypothetical projects.

      • Must file a Supplement to Form I-924A to renew its eligibility.
         

    • Exemplar Projects

      • A more detailed business plan than hypothetical projects.

      • Must file a Supplement to Form I-924A to renew its eligibility.

Update:
 

The USCIS is going to publish its final rules on EB-5 Immigrant Investor Program. The new changes will mainly include:

  1. Raising the minimum investment amounts’

  2. Revising the standards for Regional Center registrations

  3. Allowing applicants to retain their priority date under certain circumstances.
     

Minimum Investment Amount

  • From $1 million to $1.8 million for direct investment;

  • From $500,000 to $900,000 for indirect investment through regional centers;

  • Future increase will be based on inflation and happen every 5 years.
     

Regional Center Registration

  • State government used to designate TEAs. Under the new rule, the USCIS will directly designate and approve TEAs.

 

These rules will become effective on November 21, 2019

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