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Frequently Asked Questions


This section contains useful Questions and Answers in various areas of EB-5 law.

Starting EB-5 case -- what potential EB-5 investor should know & do (26)

What potential EB-5 investor should know & do to begin your EB-5 case

It all depends in your individual needs and situation, but generally, if you and your family members are in your home country, you should do consular processing (apply and obtain immigrant visas at the American Embassy), but if you and your family members are already physically and lawfully residing in the U.S., then you and your family should obtain conditional green cards through I-485 adjustment of status.

It used to be that consular processing was much faster than I-485 processing, but now, both procedures take around same time, 5 to 7 months.

It's very difficult to estimate how long it takes for I-526 to be adjudicated. As of October 21st 2011, CSC Processing Times Report indicates 8 months time frame for I-526 adjudication. If there is a RFE, the time can get longer substantially.

Depending on your home country and whether your case receives a Request For Additional Evidence, I would say 9 to 13 months. Don't fall for some regional centers saying they can get your case a lot quickly. I personally had one I-526 petition case approved in 40 days and one I-526 approved in 9 months. The fact is CSC examiners decide your case, and each examiner works according to his or her schedule. There are only around 10 ~ 12 CSC examiners working on all kinds of EB-5 cases, so they do have a lot of work to do. And those I-526 packets are pretty huge -- and probably very boring to look at.

And no, there is no direct access telephone line to call the CSC examiners and beg them to adjudicate your case more quickly because your love for USA is making your heart burst, or to inform the CSC examiner handling your case that you are a great person whom the United States should be thankful to join its fold as a newly arriving immigrant.

First, most regional centers have not yet been in operation long enough for the initial project to have been completed and participating investors to be able to recoup their investments.

Having said this however, as far as we can tell, one regional center appears to have a good track record of investors who have been able to recoup their investments at the completion of their investment period.

Generally, where the immigration attorney is located should not matter. However, if the immigration is based near the project into which you are investing, the attorney could potentially visit the premises.

Also, when it comes to EB-5 cases, being located in Southern CA offers a convenient opportunity for the immigration attorney to attend several CSC EB-5 forums and CSC general forums that are held throughout the year at Laguna Niguel, CA location, the home of California Service Center which has the exclusive jurisdiction for adjudication of all EB-5 cases. This means the immigration attorney can easily attend these CSC forums and ask questions and clarifications on EB-5 law.

For example, Irvine, CA is less than 30 minutes away from 24000 Avila Road, Laguna Niguel, CA where the CSC is located.

According to CSC during the March 16, 2010 EB-5 Forum, around 95% of all filed EB-5 cases are regional center based cases! For better or worse, there must be certain reasons why overwhelming percentage of all filed EB-5 cases are regional center based cases. It appears that EB-5 investors prefer regional center based EB-5 cases to meet the EB-5 requirements.

By all means, if you have the time. Go and compare as much as you can. From our experiences, it definitely doesn't hurt if you can go see things personally. Although choosing a particular EB-5 project is a lot more important than choosing a car, we think it's similar: if you go and take a look at a car you are considering, you will have a lot better "feel" for the product. But if you are going to take a look at a hybrid car, you shouldn't go there expecting the car to drive like a BMW; in other words, you should have good ideas on what the product is designed to deliver before you view and take a test drive.

I would say evaluating the people who run the EB-5 project and the track record is more important than evaluating the project itself.

Before you start to compare attorney fees, first look at the scope of services described in the retainer agreement.

Basically, it means USCIS reviewed the regional center designation application and gave its approval that the regional center operator can set up EB-5 projects within the approved area pursuant to the investment structure and industries described in its regional center application, using the job calculation methodology described therein.

Note having a regional center designation does not mean that USCIS will automatically approve all I-526 petitions and/or I-829 petitions submitted under an EB-5 project carried out pursuant to such USCIS designated regional center program. Therefore, EB-5 investors should not mistakenly assume that the U.S. government has made some guarantee that investors will get their permanent green cards if they make necessary investments.

As of May 28, 2010, there are nearly 100 USCIS designated regional center programs in the United States, with approximately 50 more designation applications pending. This, in our opinion, is too many regional centers for the existing demand.

However, it should be noted that out of these regional centers, there are only a handful with substantial track record of having obtained I-829 conditions removals, mainly because the regional center EB-5 program has re-started in 2003. In other words, a majority of regional centers have not had sufficient time yet to rack up their track records in I-829 area.

No, you shouldn't be pursuing an EB-5 case, mistakenly thinking that an EB-5 case is a "cure-all" for ineligibilities related to unlawful presence bars or criminal records. If you or your family member has out of status, unlawful presence or criminal issues, you should get a thorough consultation with an experienced immigration attorney.

Each EB-5 case requires different documents, but generally speaking, you should start to make copies of following documents:

1. Identification documents such as biographic pages and visa pages of your passports, birth certificates.

2. Lawful source documents.

3. Bank wire documents.

4. Immigration status documents such as I-94.

Yes, U.S. immigration law, like U..S. bankruptcy law and U.S. maritime law, is a federal law; therefore, as long as an attorney is licensed in one of the 50 U.S. states, he or she can practice U.S. immigration law.

Very simple. Talk to the immigration attorney and ask questions. An experienced EB-5 practitioner should be able to give you answers quickly and succinctly, or tell you those particular issues where the EB-5 law is unclear. Therefore, we strongly recommend that you talk personally with the immigration attorney to consult with him or her before you decide to retain the attorney as your EB-5 processing lawyer. In addition, an experienced EB-5 should have some track record in I-829 approvals, not just I-526 approvals.

Whether you decide to pursue a direct EB-5 or a regional center EB-5 case, you should realize that there are several procedural components to your EB-5 case.

You can find out details on all the steps involved in an EB-5 case at: http://eb-5center.com/process.

First, there is a I-526 immigrant petition step. You have to submit this packet to California Service Center (CSC) and get it approved IF you wish to take EITHER Immigrant Visa consular processing or I-485 adjustment of status step to obtain conditional permanent resident (CPR) status for you and your dependent family members.

Second, you have to EITHER take Immigrant Visa consular processing OR do I-485 adjustment of status application, to obtain the CPR status. Which avenue you choose depends on many factors, such as whether you are in valid nonimmigrant status aou nd whether you have to travel outside the U.S. If you are in another country, then normally you should pursue IV consular processing through an American Embassy located in your home country.

Third, after you acquire CPR status, there are many issues as to maintaining your CPR status.

Fourth, between 21 and 24 months after you obtain CPR status, you and your family members can apply to obtain "permanent" resident status through filing of I-829 conditions removal petition.

Fifth, after you file I-829 petition, you need to do ASC biometrics and also obtain temporary I-551 stamp that evidences your continuing CPR status.

Sixth, you need to get I-829 approved and get your permanent green cards.

As with any legal case, you can represent yourself, but that's same with all kinds of services, such as repairing car, computer, doing your tax returns, defending a lawsuit, etc. Having said this, EB-5 case is more difficult to prepare than I-130 family petition case, for sure. It isn't a rocket science . . . but sometimes it can feel like it.

No. If you used one immigration attorney for your I-526 immigrant petition and IV consular or I-485 adjustment processing, you can decide to retain another immigration attorney to handle your I-829 conditions removal petition.

You must realize that EB-5 case does not just involve or consist of I-526 and/or IV consular processing (assuming you and your family are going to do consular processing. It also involve in future I-829 conditions removal processing and other services between your acquisition of conditional permanent resident (CPR) status and your obtaining permanent green card through I-829 conditions removal processing.

Aside from attorney fees (which may vary depending on the level of service, experience of individual attorney), there is I-526 filing fee which is $1,435. After I-526 immigrant petition is approved, and if you and your family decide to do consular Immigrant Visa processing through the America Embassy located at your home country, then there would be several hundred dollars per each Immigrant Visa applicant for National Visa Center fees and physical examination fees.

In our opinion, here is the absolutely bare, minimum information you should know before you begin your EB-5 case.

1. Basic understanding of EB-5 requirements. If you don't know the difference between a TEA and regional center benefits, you need to study this www.eb-5center.com website to gain sufficient understanding. The "Easy As EB-5" section above might be helpful. We strive to give you a solid understanding of the current state of EB-5 law and issues.

2. It takes at minimum around 9 months, depending whether you follow IV processing or I-485 adjustment processing, before you and your family can immigrate to the US as a conditional permanent residents. In all likelihood, it will take longer than this. The processing time depends on many factors, such as which country you are in, how fast CSC adjudicates your I-526 petition, etc.

3. If you plan to pursue a regional center based EB-5 case, the major types of regional centers, according to their investment structures.

4. Check to make sure the area where job-creation will take place qualifies as a TEA.

5. Know that job-creation (how and when the jobs will be created) is very, very important when it comes to getting your I-829 conditions removal petition approved in future. Therefore, you should know exactly how you will create the requisite jobs and when you are likely to create the jobs. Start putting together a simple business plan in your own words.

6. How you will come up with the requisite investment amount, and whether that will comply with the "lawful source" requirement of EB-5 law.

Unless you possess a good understanding of the above items, you are not ready to begin your EB-5 case. We would even advise you to pay consulting fees to find out as much as you can. After all, if you are going to be investing more than $500,000 USD in your EB-5 case, you should be willing to spend $1,000 or $2,000 to find out the requirements as clearly as you can to your satisfaction.

[Q] Which regional center is most suitable for me, and how do I go about selecting a suitable regional center EB-5 project for me?

Well, it really depends on what your goals are. We believe there are three (3) possible goals in your pursuit of EB-5 case.

1. Minimizing loss of your initial investment amount.
2. Obtaining "permanent" green cards for your family which will happen only if your I-829 is approved. Specifically, this means you need to make sure that requisite jobs will be created by the EB-5 project in a timely manner. This means you need to delve into how the jobs will be created and when the jobs will be created.
3. Making profit.

We believe obtaining all three goals is extremely tough in regional center EB-5 case. If goal number 3 is important to you, we suggest you pursue an individual, direct EB-5 case, rather than a regional center EB-5 case.

When it comes to a regional center EB-5 case, number 3 should not be all that important to you. Assuming, you decide that you want to pursue a regional center EB-5 case, we suggest that you keep in mind that in general, there are really only two types of investment structures when it comes to regional centers.

1. Pool funds from individual investors and put the money into an entity (usually a limited partnership) and then invest the pooled money as an equity in either a business or commercial real estate project and try to create the jobs that way. You can refer to this type as "Pool moneys and then do an equity investment" investment structure.

2. Pool funds from individual investors and put the money into an entity (usually a limited partnership) and then make a loan(s) to a for-profit or non-profit company engaged in job-creating project. You can refer to this type as "Pool moneys and then make investment loan" investment structure.

First, you need to know the advantages and disadvantages of these two types of investment structures, then you should move onto picking a regional center and the project.

If you wish to begin EB-5 Processing and you are already in the U.S. on non-immigrant visa status such as H-1B, E-2 and F-1, we strongly advise you to maintain non-immigrant status for you and your family members until you and your family obtain either Immigrant Visas or conditional lawful status. That is the safest course of action.

As you may know, your non-immigrant visa or status is deemed to expire automatically upon your obtaining Immigrant Visa issued from the American Embassy or upon approval of your I-485 adjustment application.

As Anais Nin said "We don't see things as they are, we see them as we are." This means our preference of the RC will probably reflect the way we are, our preferences and traits regarding risks and safety.

Having said this, we prefer a RC EB-5 project 1) that utilizes a job-calculation methodology that appears to be "reasonable" to common sense expectations; 2) that involves the job-creating business/companies which are solid, financially and business-wise; 3) that has good track record of approved I-526s and I-829s; and 4) is run by knowledgeable and experienced staff or professionals.

Although there appears to be many types of EB-5 projects, when you examine the actual investment structure, there are only two or three types of EB-5 investment structures. You should look at leading RCs for a particular type of investment structure.

  • Level of experience with EB-5 cases and with U.S. immigration cases in general.
  • Whether the immigration attorney seems to be knowledgeable and responsive to your questions regarding EB-5 law.
  • Whether the immigration attorneys seems to be prompt and responsive to your questions.
  • The types of legal services covered in the retainer agreement.
  • Whether the immigration attorney has handled many EB-5 cases.

I would say the primary considerations should be the track records for I-829 approvals, structure available to reduce the risk to your initial investment and whether the job-calculation methodology is "reasonable" to lead to the approval of I-829 condition removal.

As Anais Nin said, "We don't see things as they are, we see them as we are." Therefore, what you consider important to you will lead you to choose a specific RC-based EB-5 Project.

The total fees can be broken down into the following:

$500,000 USD (or $1 MM in non-TEA) investment

Subscription "issue" fee (sometimes called initial marketing & legal cost fee) which can range anywhere from $30,000 to $50,000 USD.

Immigration attorney retainer fee (make sure what services are covered). Attorney fees can vary depending on the types of services and levels of services covered and the experience of individual immigration attorney.

Filing fees for I-526, I-485 (if applicable) and I-829

National Visa Center fees if IV consular processing is chosen instead of I-485 adjustment processing.

Physical exam costs

This is a "chicken or egg" question, and there is no single right answer for everyone. It depends on your preference, but do note that in practice, many regional centers in practice require a particular immigration attorney(s) to file and submit EB-5 applications. The biggest problem for most potential EB-5 investors is that they do not know which RC Program is suitable for them; and although there is no easy answer, we believe ultimately the best guidance is the track record; the problem is only a handful of regional centers have significant track record so far. Therefore, you may want to first choose a knowledgeable and experienced immigration attorney and talk it over with the immigration attorney as to several regional centers which may fit your likes and dislikes and risks profile.

Some regional centers leave it up to you to choose your own immigration attorneys, but some regional centers prefer that you use their preferred immigration attorneys. It all depends on a specific regional center.

Generally speaking, the EB-5 investor must pay for the fees and filing fees, etc.

EB-5 Eligibilities & Requirements: I-526, CPR & I-829 (40)

Who are eligible or ineligible to pursue EB-5 case, and what are specific requirements for each type of petition or application?

USCIS has caused a great deal of confusion surrounding construction jobs, mainly because USCIS is not sticking with its own definition of direct vs indirect jobs. In practice, it is almost impossible for any construction jobs to be deemed as "direct" jobs per EB-5 law. Think about it: Under the EB-5 law, "direct" jobs are only those jobs directly employed by the NCE or JCE, but most, if not all, construction jobs are hired by general contractors or sub-contractors. This means all construction jobs are indirect jobs under the EB-5 law. Therefore, under the EB-5 law, it's logically flawed to count any construction jobs as "direct" jobs. However, in our opinion, USCIS seems to be very confused on this issue.

Anyway, we would be very, very cautious about any EB-5 projects that need to count "direct" construction jobs to meet the requisite job numbers, mainly because under the EB-5 law, there is no such thing as "direct" construction jobs; maybe economists will deem certain construction jobs as "direct", but that's logically flawed under the EB-5 law definitions of "direct" and "indirect" jobs.

USCIS still needs to clarify issues concerning EB-5 projects involving construction jobs, tenant-occupancy jobs or hotel related jobs. It's amazing how USCIS fails to provide clear enough guidance on these issues.

Update: As of July 16, 2013, an experienced EB-5 economist has stated that as long as the underlying construction activities last longer than 2 years (as supported by evidence), he has observed USCIS allow the counting of "direct" construction jobs.

USCIS has stated in October 2012 EB-5 teleconference that generally this arrangement will not be allowed. See also: http://www.uscis.gov/err/K1%20-%20Request%20for%20Participation%20as%20R...

No. See: http://www.uscis.gov/err/B7%20-%20Form%20I-526%20and%20I-829/Decisions_I...

In essence, requisite jobs must be created by an entity that qualifies as a NCE or JCE.

Recently in 2012, USCIS announced its "tentative" policy on "tenant-occupancy" issues. The new policy appear to make an office building development (to be rented out to various types of tenants) an extremely difficult EB-5 project. Is this the case?

The short answer is: "In theory, no; in practice, no one knows -- yet."

Theoretically, if USCIS holds firm to its recently-announced rationale, it would seem that such office building development would in practice be extremely difficult to be the basis for an EB-5 project, because practically speaking, it would be extremely difficult for an EB-5 investor/petitioner to show that the tenants' employees are "new" jobs which do not involve merely relocating from another location to the building. See http://eb-5center.com/node/1044 for a detailed explanation of USCIS' recent explanation on how it views the tenant-occupancy issues. The fact of the matter is most of the tenants' employees in this type of office building project would be relocating employees. Moreover, it is unlikely that there would be some business or financial relationship between the developer and the tenant as indicated by USCIS. However, we have not yet heard whether USCIS is intent on denying I-526s or I-924s for these types of projects. We will have to wait and see where USCIS wants to take this issue, as there are a slew of pending RFEs issued by USCIS involving this issue.

Our position is that regs seem to say "no", and as a result, we have advised clients accordingly. However, we did hear from other attorneys that they managed to get their I-526s approved even when unsecured personal loans were used. We must caution you that we also heard of RFEs on this very issue, with the RFE stating that the regs require only loans secured with personal assets. So, if you want to be a hero, go ahead.

[Q] I would like to invest $ 500,000 and get the conditional green card. I have 2 questions I didn't find in any Faqs:

1- when I got the conditional green card for my investment, could I get hired by a US employer and do another kind of job? Example: I invest in a *** Resort project, I get my conditional green card and my SSN, after that can I be an employee of Wells Fargo and work for them?

2- when is my investment "due"? When can I get my money back? After i got my unconditional green card?

Answers:

1. Being an EB-5 investor does not prohibit you from working for another US employer or staring another business.

2. The EB-5 project may have its own requirement, but generally speaking, there is no prohibition against an EB-5 investor getting his or her money back after getting I-829 approved. However, most EB-5 project requires a loan of at least 5 years for various reasons.

No, USCIS deems that the geographic region must be contiguous. If there are several non-contiguous geographic areas in which someone wants to operate EB-5 regional centers, that person must apply separately for multiple regional centers.

We have not yet seen an EB-5 project where a New Commercial Enterprise has been formed to just purchase state revenue bonds. If USCIS approves I-526s and I-829s for this type of project, it will be the first one, and all regional centers will copy the investment structure, that's for sure.

We can foresee many legal arguments on this issue, but we will keep it to ourselves at this point.

One difference I see is that where a LP is formed to make a commercial loan to a city agency for its infrastructure project, there is a precedent (Izumii case), but for purchasing bonds, there is no precedent case. We would not be surprised if this issue is revisited by USCIS in future.

[Q] I have several options for gathering the funds needed to invest for the EB-5. I wanted to know if I can use advances from credit cards to make it happen?

No. Review the definition of "capital" which excludes unsecured (personally-owned properties) loan.

[Q] I have a question regarding funding source that can also contribute to your website: Can a 200K unsecured personal loan from a family member and a 300K unsecured personal loan made by a recognized financial institution be used as my personal funding source for a EB5 business?

The answer to your question lies in the definition of "capital". The definition of allowable "capital" does not allow unsecured loan to be used as EB-5 investment funds. Any loan used must be indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.

[Q] Client wants to start new business in a city that has under 20,000 residents, but that city is a part of a Metropolitan Statistical Area. Could this qualify for a $500,000 investment because it qualifies as a "rural area", or does he need to invest $1 million?

Practically speaking, this is how USCIS defines "rural".

The immigration regulations define "rural" as "any area NOT within EITHER a metropolitan statistical area (as designated by the Office of Management and Budget) OR the outer boundary of any city or town having a population of 20,000 or more."

Even though the regulation uses the word "or," the USCIS interprets this definition as meaning that an area must be both OUTSIDE a metropolitan statistical area as defined by Office of Management and Budget and have a population of less than 20,000. This means some truly rural areas cannot qualify as TEAs for EB-5 purposes because they happen to be located in a sprawling MSA. If the USCIS refuses to change its interpretation of the definition, Congress should fix the problem legislatively.

This means if the Metropolitan Statistical Area (MSA) is sprawling and covers a lot of area, and there happen to be pockets of what look like rural areas within the MSA, they will not qualify as "rural areas". This definition sort of defeats the purpose as these pockets are precisely the type of lands which need developing. Anyway, this is another instance where USCIS could have easily and logically arrived at a different conclusion that jibes more reasonably with the real world of commerce.

You better discuss your case with an EB-5 practitioner with good knowledge of general US immigration laws. This is because while nothing prevents one from filing I-526 immigrant petition or getting I-526 approved, having been out of status or "unlawfully present" will pose big obstacles to your being able to adjust status to permanent resident via I-485 or obtaining immigrant visas via consular processing abroad.

Yes, if they can prove that the underlying fund was not obtained or earned while they were in unlawful presence in the U.S. and they can prove they are eligible and have been grandfathered under 245(i). 245(i) waives people who Entered Without Inspection.

INA 245(i) reads:

(i) (1) 2a/ Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States--

(A) who--

(i) entered the United States without inspection; or

(ii) is within one of the clas ses enumerated in subsection (c) of this section; 2a/

(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d) ) of--

(i) a petition for classification under section 204 that was filed with the Attorney General on or before 2a/ April 30, 2001; or

(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and 2a/

(C) 2a/ who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on the date of the enactment of the LIFE Act Amendments of 2000; may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such a pplication a sum equaling $1,000 3/ as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986 at any date, who-

(i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986;

(ii) entered the United States before May 5, 1988, resided in the United States on May 5, 1988, and is not a lawful permanent resident; and

(iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section. and

(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if-

(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and

(B) an immigrant visa is immediately available to the alien at the time the application is filed.

(3) 4/ (A) The portion of each application fee (not to exceed $200) that the Attorney General determines is required to process an application under this section and is remitted to the Attorney General pursuant to paragraphs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in subsections (m), (n), and (o) of section 286.

(B) Any remaining portion of such fees remitted under such paragraphs shall be deposited by the Attorney General into the 4a/ Breached Bond/Detention established under section 286(r) , 4a/ except that in the case of fees attributable to applications for a beneficiary with respect to whom a petition for classification, or an application for labor certification, described in paragraph (1)(B) was filed after January 14, 1998, one-half of such remaining portion shall be deposited by the Attorney General into the Immigration Examinations Fee Account established under section 286(m) .

8 CFR 245.10 contains regulation governing 245(i)

§ Sec. 245.10 Adjustment of status upon payment of additional sum under Public Law 103-317. (Added 10/1/94; 59 FR 51091) (Heading amended 3/26/01; 66 FR 16383 )

(a) Definitions . As used in this section the term: (Added 3/26/01; 66 FR 16383 )

(1)(i) Grandfathered alien means an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act) of:

(A) A petition for classification under section 204 of the Act which was properly filed with the Attorney General on or before April 30, 2001, and which was approvable when filed; or

(B) An application for labor certification under section 212(a)(5)(A) of the Act that was properly filed pursuant to the regulations of the Secretary of Labor on or before April 30, 2001, and which was approvable when filed.

(ii) If the qualifying visa petition or application for labor certification was filed after January 14, 1998, the alien must have been physically present in the United States on December 21, 2000. This requirement does not apply with respect to a spouse or child accompanying or following to join a principal alien who is a grandfathered alien as described in this section.

(2) Properly filed means:

(i) With respect to a qualifying immigrant visa petition, that the application was physically received by the Service on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and accepted for filing as provided in § 103.2(a)(1) and (a)(2) of this chapter; and

(ii) With respect to a qualifying application for labor certification, that the application was properly filed and accepted pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21.

(3) Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act.

(4) Circumstances that have arisen after the time of filing means circumstances similar to those outlined in § 205.1(a)(3)(i) or (a)(3)(ii) of this chapter.

(b) Eligibility . An alien who is included in the categories of restricted aliens under § 245.1(b) and meets the definition of a "grandfathered alien" may apply for adjustment of status under section 245 of the Act if the alien meets the requirements of paragraphs (b)(1) through (b)(7) of this section: (Redesignated as paragraph (b) and introductory text revised 3/26/01, previously paragraph (a); 66 FR 16383 )

(1) Is physically present in the United States;

(2) Is eligible for immigrant classification and has an immigrant visa number immediately available at the time of filing for adjustment of status;

(3) Is not inadmissible from the United States under any provision of section 212 of the Act, or all grounds for inadmissibility have been waived; (Revised effective 4/1/97; 62 FR 10312 )

(4) Properly files Form I-485, Application to Register Permanent Residence or Adjust Status on or after
October 1, 1994, with the required fee for that application; (Revised effective 3/26/01; 66 FR 16383 )

(5) Properly files Supplement A to Form I-485 on or after October 1, 1994; (Revised effective 3/26/01; 66 FR 16383 )

(6) Pays an additional sum of $ 1,000, unless payment of the additional sum is not required under section 245(i) of the Act; and (Revised effective 4/1/97; 62 FR 10312 ) (Revised 7/23/97; 62 FR 39417 )

(7) Will adjust status under section 245 of the Act to that of lawful permanent resident of the United States on or after October 1, 1994. (Revised effective 3/26/01; 66 FR 16383 )

(c) Payment of additional sum . An adjustment applicant filing under the provisions of section 245(i) of the Act must pay the standard adjustment application filing fee as specified in § 103.7(b)(1) of this chapter. Each application submitted under the provisions of section 245(i) of the Act must be submitted with an additional sum of $1,000. An applicant must submit the additional sum of $1,000 only once per application for adjustment of status submitted under the provisions of section 245(i) of the Act. However, an applicant filing under the provisions of section 245(i) of the Act is not required to pay the additional sum if, at the time the application for adjustment of status is filed, the alien is: (Redesignated as paragraph (c) and revised 3/26/01, previously paragraph (b); 66 FR 16383 ) (Introductory text revised effective 4/1/97; 62 FR 10312 ) (Introductory text revised 7/23/97; 62 FR 39417 )

(1) Unmarried and less than 17 years of age;

(2) The spouse of a legalized alien, qualifies for and has properly filed Form I-817, Application for Voluntary Departure under the Family Unity Program, and submits a copy of his or her receipt or approval notice for filing Form I-817; or

(3) The child of a legalized alien, is unmarried and less than 21 years of age, qualifies for and has filed Form I-817, and submits a copy of his or her receipt or approval notice for filing Form I-817. Such an alien must pay the additional sum if he or she has reached the age of 21 years at the time of filing for adjustment of status. Such an alien must meet all other conditions for adjustment of status contained in the Act and in this chapter. (Amended 3/26/01; 66 FR 16383 )(Revised 7/23/97; 62 FR 39417 )

(d) Pending adjustment application with the Service or Executive Office for Immigration Review filed without Supplement A to Form I-485 and additional sum. An alien who filed an adjustment of status application with the Service in accordance with § 103.2 of this chapter will be allowed the opportunity to amend such an application to request consideration under the provisions of section 245(i) of the Act, if it appears that the alien is not otherwise ineligible for adjustment of status. The Service shall notify the applicant in writing of the Service's intent to deny the adjustment of status application, and any other requests for benefits that derive from the adjustment

application, unless Supplement A to Form I-485 and any required additional sum is filed within 30 days of the date of the notice. If the application for adjustment of status is pending before the Executive Office for Immigration Review (EOIR), EOIR will allow the respondent an opportunity to amend an adjustment of status application filed in accordance with § 103.2 of this chapter (to include Supplement A to Form I-485 and proof of remittance to the INS of the required additional sum) in order to request co nsideration under the provisions of section 245(i) of the Act. (Revised 3/26/01; 66 FR 16383 ) (Revised 7/23/97; 62 FR 39417 ) (Revised 10/23/97; 62 FR 55152 )

(e) Applications for Adjustment of Status filed before October 1, 1994 . The provisions of section 245(i) of the Act shall not apply to an application for adjustment of status that was filed before October 1, 1994. The provisions of section 245(i) of the Act also shall not apply to a motion to reopen or reconsider an application for adjustment of status if the application for adjustment of status was filed before October 1, 1994. An applicant whose pre-October 1, 1994, application for adjustment of status has been denied may file a new application for adjustment of status pursuant to section 245(i) of the Act on or after October 1, 1994, provided that such new application is accompanied by: the required fee; Supplement A to Form I-485; the additional sum required by section 245(i) of the Act; and all other required initial and additional evidence. (Revised 3/26/01; 66 FR 16383 ) (Revised 7/23/97; 62 FR 39417 ) (Amended 10/23/97; 62 FR 55152 )

(f) Effect of section 245(i) on completed adjustment applications before the Service . (1) Any motion to reopen or reconsider before the Service alleging availability of section 245(i) of the Act must be filed in accordance with § 103.5 of this chapter. If said motion to reopen with the Service is granted, the alien must remit to the Service Supplement A to Form I-485 and the additional sum required by section 245(i) of the Act. If the alien had previously remitted Supplement A to Form I-485 and the additional sum with the application which is the subject of the motion to reopen, then no additional sum need be remitted upon such reopening. (Paragraph (f) revised 3/26/01; 66 FR 16383 ) (Paragraph (f) added 7/23/97; 62 FR 39417 ) (Paragraph (f) revised 9/30/97; 62 FR 50999 ) (Paragraph (f) revised 10/23/97; 62 FR 55152 )

(2) An alien whose adjustment application was adjudicated and denied by the Service because of ineligibility under section 245(a) or (c) of the Act and now alleges eligibility due to the availability of section 245(i) of the Act may file a new application for adjustment of status pursuant to section 245(i) of the Act, provided that such new application is accompanied by the required fee for the application, Supplement A to Form I-485, additional sum required by section 245(i) of the Act and all other required and additional evidence.

(g) Aliens deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status . Section 237(a)(4)(B) of the Act renders any alien who has engaged, is engage d, or at any time after admission engages in any terrorist activity, as defined in section 212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of the Act, persons who are deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status under section 245(a) of the Act. Any person who is deportable under section 237(a)(4)(B) of the Act is also ineligible to adjust status under section 245(i) of the Act. (Paragraph (g) added 7/23/97; 62 FR 39417 )

(h) Asylum or diversity immigrant visa applications . An asylum application, diversity visa lottery application, or diversity visa lottery-winning letter does not serve to grandfather the alien for purposes of section 245(i) of the Act. However, an otherwise grandfathered alien may use winning a diversity visa as a basis for adjustment. (Added 3/26/01; 66 FR 16383 )

(i) Denial, withdrawal, or revocation of the approval of a visa petition or application for labor certification . The denial, withdrawal, or revocation of the approval of a qualifying immigrant visa petition, or application for labor certification, that was properly filed on or before April 30, 2001, and that was approvable when filed, will not preclude its grandfathered alien (including the grandfathered alien's family members) from seeking adjustment of status under section 245(i) of the Act on the basis of another approved visa petition, a diversity visa, or any other ground for adjustment of status under the Act, as appropriate.

(Added 3/26/01; 66 FR 16383 )

(j) Substitution of a beneficiary on an application for a labor certification . Only the alien who was the beneficiary of the application for the labor certification on or before April 30, 2001, will be considered to have been grandfathered for purposes of filing an application for adjustment of status under section 245(i) of the Act. An alien who was previously the beneficiary of the application for the labor certification but was subsequently replaced by another alien on or before April 30, 2001, will not be considered to be a grandfathered alien. An alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien. (Added 3/26/01; 66 FR 16383 )

(k) Changes in employment . An applicant for adjustment under section 245(i) of the Act who is adjusting status through an employment-based category is not required to work for the petitioner who filed the petition that grandfathered the alien, unless he or she is seeking adjustment based on employment for that same petitioner. (Added 3/26/01; 66 FR 16383 )

(l) Effects of grandfathering on an alien's nonimmigrant status . An alien's nonimmigrant status is not affected by the fact that he or she is a grandfathered alien. Lawful immigration status for a nonimmigrant is defined in § 245.1(d)(1)(ii) . (Added 3/26/01; 66 FR 16383 )

(m) Effect of grandfathering on unlawful presence under section 212(a)(9)(B) and (C) of the Act . If the alien is not in a period of stay authorized by the Attorney General, the fact that he or she is a grandfathered alien does not prevent the alien from accruing unlawful presence under section 212(a)(9)(B) and (C) of the Act. (Added 3/26/01; 66 FR 16383 )

(n) Evidentiary requirement to demonstrate physical presence on December 21, 2000 . (1) Unless the qualifying immigrant visa petition or application for labor certification was filed on or before January 14, 1998, a principal grandfathered alien must establish that he or she was physically present in the United States on December 21, 2000, to be eligible to apply to adjust status under section 245(i) of the Act. If no one document establishes the alien's physical presence on December 21, 2000, he or she may submit several documents establishing his or her physical presence in the United States prior to, and after December 21, 2000. (Added 3/26/01; 66 FR 16383 )

(2) To demonstrate physical presence on December 21, 2000, the alien may submit Service documentation. Examples of acceptable Service documentation include, but are not limited to:

(i) A photocopy of the Form I-94, Arrival-Departure Record, issued upon the alien's arrival in the United States;

(ii) A photocopy of the Form I-862, Notice to Appear;

(iii) A photocopy of the Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, issued by the Service on or prior to December 21, 2000, placing the applicant in exclusion proceedings under section 236 of the Act (as in effect prior to April 1, 1997);

(iv) A photocopy of the Form I-221, Order to Show Cause, issued by the Service on or prior to December 21, 2000, placing the applicant in deportation proceedings under section 242 or 242A of the Act (as in effect prior to April 1, 1997);

(v) A photocopy of any application or petition for a benefit under the Act filed by or on behalf of the applicant on or prior to December 21, 2000, which establishes his or her presence in the United States, or a fee receipt issued by the Service for such application or petition.

(3) To demonstrate physical presence on December 21, 2000, the alien may submit other government documentation. Other government documentation issued by a Federal, state, or local authority must bear the signature, seal, or other authenticating instrument of such authority (if the document normally bears such instrument), be dated at the time of issuance, and bear a date of issuance not later than December 21, 2000. For this purpose, the term Federal, state, or local authority includes any governmental, edu cational, or administrative function operated by Federal, state, county, or municipal officials. Examples of such other documentation include, but are not limited to:

(i) A state driver's license;

(ii) A state identification card;

(iii) A county or municipal hospital record;

(iv) A public college or public school transcript;

(v) Income tax records;

(vi) A certified copy of a Federal, state, or local governmental record which was created on or prior to December 21, 2000, shows that the applicant was present in the United States at the time, and establishes that the applicant sought on his or her own behalf, or some other party sought on the applicant's behalf, a benefit from the Federal, state, or local governmental agency keeping such record;

(vii) A certified copy of a Federal, state, or local governmental record which was created on or prior to December 21, 2000, that shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, state, or local governmental agency keeping such record;

(viii) A transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities, accredited by the State or regional accrediting body, or by the appropriate private school association, or maintains enrollment records in accordance with State or local requirements or standards.

(4) To demonstrate physical presence on December 21, 2000, the alien may submit non-government documentation. Examples of documentation establishing physical presence on December 21, 2000, may include, but are not limited to:

(i) School records;

(ii) Rental receipts;

(iii) Utility bill receipts;

(iv) Any other dated receipts;

(v) Personal checks written by the applicant bearing a bank cancellation stamp;

(vi) Employment records, including pay stubs;

(vii) Credit card statements showing the dates of purchase, payment, or other transaction;

(viii) Certified copies of records maintained by organizations chartered by the Federal or State government, such as public utilities, accredited private and religious schools, and banks;

(ix) If the applicant established that a family unit was in existence and cohabiting in the United States, documents evidencing the presence of another member of the same family unit; and

(x) For applicants who have ongoing correspondence or other interaction with the Service, a list of the types and dates of such correspondence or other contact that the applicant knows to be contained or reflected in Service records.

(5)(i) The adjudicator will evaluate all evidence on a case-by-case basis and will not accept a personal affidavit attesting to physical presence on December 21, 2000, without requiring an interview or additional evidence to validate the affidavit.

(ii) In all cases, any doubts as to the existence, authenticity, veracity, or accuracy of the documentation shall be resolved by the official government record, with records of the Service and the Executive Office for Immigration Review (EOIR) having precedence over the records of other agencies. Furthermore, determinations as to the weight to be given any particular document or item of evidence shall be solely within the discretion of the adjudicating authority (i.e., the Service or EOIR). It shall be the responsibility of the applicant to obtain and submit copies of the records of any other government agency that the applicant desires to be considered in support of his or her application.

[Q] I bought and is still the sole owner of a franchise as a H1-B visa holder currently, the biz is on "autopilot" and I don't get involved in actively managing the biz. Would this affect the EB-5 application?

No, you can be in H1-B status and still own a business, as long as you don't actively manage the business.

According to another EB-5 practitioner, Boyd Campbell, "although Iranian Transaction Regulations do not require a U.S. business to get an OFAC license in order to accept Iranian citizens' investments from Iranian banks, but USCIS requires the license anyway, and OFAC has obligingly issued them, citing no authority to do so."

However, we heard that at least in one instance USCIS recently rejected an I-526 application whose money been deposited into a project's escrow account BEFORE OFAC license had been issued to the investor. This may or may not be a shift in USCIS policy towards Iranian applicants. This raises a question of whether under the current OFAC license application procedure and mechanism, an OFAC license can even be obtained BEFORE the funds gets deposited into an escrow account. Perhaps someone can enlighten us.

[Q] My wife and I are currently in E-2 status with an approaching E-2 expiration date. We are considering an EB-5 case. Any potential issues?

Whenever applicant in NIV status is considering an EB-5 case, there are issues involving maintaining NIV status. Therefore, a detailed paid consultation is recommended to elicit key facts and then decide on the best course of action.

What my George Washington tax law professor said about the tax law applies equally to immigration law: "Everything about tax law (substitute the immigration law here) and sex is about the timing."

The funny thing is that's the only thing I remember about the class.

Yes, but it should be noted that certain banks in Iran are on the prohibited list of United States governmental agencies. You need to make sure the bank used to wire funds is not on this prohibited list. If the bank does appear on the prohibited list of banks, then you need to obtain a license clearance from a U.S. governmental agency. This definitely is an extra burden for Iranians that will make Iranian cases tougher to get approved.

We found out from an EB-5 seminar held at October 19, 2009, Iraqi banks are not on a prohibited banks list. Things can get political when it comes to certain countries that are "at odds" with the interests of the United States.

Helpful links for Iranian EB-5 cases:

http://www.bis.doc.gov/policiesandre...tions/Iran.pdf

http://www.ustreas.gov/offices/enfor...ran/iran.shtml

Another good resource: 31 C.F.R. Section 560 and Appendix A to part 560

Yes, with any EB-5 case involving a purchase of an existing business, such as restaurants or car wash, the problematic issue is not with whether such business will qualify as a "new commercial enterprise" -- it will if the business has been originally established after November 29, 1990 -- but with how the EB-5 investor's investment into such business will create 10 additional, new full-time positions?

Some people have told me "Hey, I will just purchase a business which laid off all its employees" or "I will just purchase assets, without its employees, and then re-hire or hire new employees of my own"; but good luck if you wish to climb up this dangerous tree.

[Q] I obtained E-2 visa 3 years ago by buying hotel for $2 Million USD and expanding and hiring additional 12 full-time jobs. Can I now go for EB-5 case based on this past investment and job creation?

Generally, the answer is YES, but how your investment for E-2 visa amount was spent and where it came from should be analyzed. For example, if the E-2 business itself invested its profit, then such investment would not qualify, because such spending would be deemed as "reinvestment" rather than a personal investment from the EB-5 investor. Also, if the investments were made little by little over a long period of time, that might pose some problems in demonstrating that you iinvested the requisite amount. You should also see if your business can maintain those jobs you created during your E-2 visa period for next several years. Then, if everything checks out, you can file I-526 petition to start the process rolling. Under the EB-5 law, just because you already invested and created the jobs, you cannot go straight to LPR status; you have to go through I-526 petition, CPR status and then LPR status via I-829 condition removal application.

See www.eb-5center.com/OFAC_Iranian

There is nothing in U.S. immigration law prohibiting Iranian national from applying for EB-5 case. If there is nothing under the laws of Iran prohibiting Iranian nationals from pursuing EB-5 avenue, then it could be done. However, we would not be surprised if EB-5 cases for Iranians were more strictly scrutinized to make sure all requirements have been satisfied, including lawful source element, ㅆhe U.S. governmental agencies are pretty sensitive about EB-5 investors not using any banks on the prohibited lists, and there appears to be such a prohibited list of banks not to use for Iranian EB-5 investors.

Yes, under the EB-5 law, if you, the principal investor, dies you and your family acquire CPR status, your dependents can apply for I-829 separately and are eligible to receive permanent green cards.

If you do EB-5 case, your spouse and unmarried children under 21 years old can immigrate together. Step-children qualify under if certain conditions are met. They do not have to immigrate with you, if they do not wish to.

No, your parents cannot immigrate with you. They can do a separate EB-5 case, however.

Most DUIs do not make applicants ineligible to receive immigrant visas. However, in the event you have one DUI record during the last 3 years before the immigrant visa interview or total of more than two DUI records at any time, you will have to obtain a medical opinion letter from a designated medical doctor to show that you are not addicted to alcohol, before you receive immigrant visa. This may take additional month or two. Therefore, you may have to make plans accordingly.

Yes, under the U.S. immigration law, two separate cases to obtain green cards may be pursued at the same time, but you cannot obtain green card status through another classification if you already have a green card status until your green card status is terminated or abandoned. A careful evaluation of what stage you are currently in the middle of your labor certification and whether there is a real need for you to pursue the second avenue need to be conducted.

Yes, under the EB-5 law, a child under 21 years of age at the time I-526 is received by the USCIS qualifies to immigrate as a dependent, assuming of course that the I-526 immigrant petition is approved. Therefore, it is crucial for the USCIS to receive the I-526 petition before your daughter turns 21 years of age. Otherwise, your child will have to file as the principal applicant.

The Child Status Protection Act controls the analysis. Therefore, as long as the above requirements are met, even though your daughter is past 21 years of age at the time she interview for immigrant visa or at the time she enters the U.S. as an intending immigrant -- she can immigrate as a dependent.

Under the U.S. immigration law, certain criminal records, especially those involving crime of moral turpitude, will not be eligible to receive immigrant visas or to qualify for I-485 adjustment. However, many facts must be ascertained, including whether the family member with the criminal record will need to immigrate, etc. Complicating the scenario is the fact that the criminal law among countries differ: What is criminal under one country might not be deemed to be criminal act that makes one ineligible to receive immigrant visa under the U.S. immigration law. Therefore, a detailed consultation with a qualified U.S. immigration attorney is in order.

Yes, under the U.S. immigration law, when a child reaches 21 years of age, he or she cannot qualify to immigrate as a dependent of the parent who is the principal applicant. Therefore, there is no choice but to have the 21 year son proceed as the principal applicant. This means requisite funds probably has to be gifted to the son to meet the lawful source requirement. If the son wishes to continuously stay in the United States, he or she can choose to proceed under I-485 adjustment applicant for conditional green card rather than consular process, assuming I-526 has been approved, of course.

There is no specific minimum age requirement under the US immigration law, as far as we can see. Probably, the individual state's law on minimum age required to enter into valid contracts controls. However, the key requirement that consular officer will look for when the principal applicant is relatively young is whether that person possesses an ability or capacity to truly understand the requirements of the EB-5 project and other legal requirements and participate in the management of the new commercial enterprise -- nothing more, nothing less.

The CSC was kind enough to address this particular issue as follows:

While there is no minimum age requirement directly under the INA, the investor must establish competency in either the country or state of residence when signing contracts, agreements and other documents relating to the investment. Further, the investor must also establish that he or she is competent to engage in the management of the enterprise.

The nature and the length of your "illegal" stay has to be determined and then evaluated under the U.S. immigration law to determine if you are eligible to immigrate. Therefore, talk to your U.S. immigration attorney.

You, as the principal applicant, should probably be at least over 18 years old, not have serious criminal records, past fraudulent visa records, show that you earned the money lawfully.

Aside from the individual eligibility requirements, EB-5 Program and Project have to show that they meet the EB-5 law requirements, but this is not your job, although it should be your concern to choose a specific EB-5 Program and Project which meets the EB-5 requirements and has a good track records.

You can file I-526 petition at any time, any where. However, to obtain immigrant visa or I-485 adjustment approval, you and your dependent family members need to show that you are not subject to the 2-year home residency requirement, you satisfied the 2 years home residency requirement or you and your family have obtained a waiver of the 2-year home residency requirement. Of course, whether you would want to pursue I-526 petition process in this circumstance is another question altogether.

This is just one example of how in certain EB-5 cases, a good understanding of overall U.S. immigration law is a prerequisite to becoming a good EB-5 practitioner. I dare anyone to try to become a good EB-5 practitioner without having at least many years (something like 10 years) experience in general areas of U.S. immigration law.

[Q] I would like to know if the following situation would meet the lawful source requirement. Let's say I had 1 Million USD sitting in my bank account for 5 years, and I used a portion of this money for EB-5 case. Will this meet the lawful source requirement?

Yes and no. Yes, it shows that you had the legal control over the money at the time of investing, but you still have to show that you "lawfully" earned that money which has been sitting in your bank account for the last 5 years. However, USCIS is pretty reasonable when it comes to the types of documents that you need to submit to prove that the money in the bank account has been lawfully earned or received.

However, it should be noted that the level of scrutiny that CSC examiners will apply to the lawful source issue varies like temperatures affected by the political mood, etc.

The answer and the kinds of documents needed depends on individual facts of the case. Some applicants have an easier time meeting this documents without too many documents, but some need to submit more documents. In this aspect, a U.S. immigration attorney with a lot of experience in having handled EB-5 cases would be a definite plus. However, USCIS takes a "reasonable" approach when it comes to adjudicating the lawful source requirement. Without applying the reasonable standard, many EB-5 cases would not be able to meet the lawful source requirement. This fact alone is a significant improvements in the USCIS' handling of EB-5 cases.

[Q] I am a single mom who did not make substantial money. Can I receive the requisite funds as a gift from my relatively rich father and immigrate under EB-5 Program?

Yes, the lawful source requirement can be met by a gift. However, it still has to be shown that your father lawfully earned the money gifted to you. As to the format of the actual gifting, talk to the qualified U.S. immigration attorney regarding how the gifting should be structured, etc.

Under the EB-5 law, there is no age limit to pursue EB-5. In this respect, even though the U.S. EB-5 law has some requirements and restrictions, it reflects the free enterprise philosophy of the U.S. system in that as long as you made the money "lawfully", then there is no age limit, as long as you are above the minimum age to legally enter into a binding contract, which usually is above 18 years old. Of course, the consular officer, during the immigrant visa interview, will make their own determination as to whether you are "mentally capable" or "senile", in which case you will not be issued immigrant visa. In this sense, it's not advisable to crack some off-the-wall jokes with the consular officer, since the officer may determine that you are senile based on your bad jokes. :)

U.S. immigration law permits step-children to immigrate as dependents of their natural parents as long as certain requirements are met. You should consult with a qualified U.S. immigration attorney to evaluate the facts.

[Q] I have a handicapped child. Will this pose a problem in proceeding with EB-5 Program?

In most cases, having a handicapped child will not pose any problem. However, specific nature of the handicap should be explored to see if such handicap will cause a danger to others or require extraordinary public benefits.

[Q] I am currently in the removal proceedings. Can I proceed under EB-5 Program later on and obtain permanent resident status?

Being in a removal proceedings may deprive you of any future benefits of doing EB-5. Whenever you are in a removal proceedings and you wish to proceed under EB-5, you should promptly consult a qualified U.S. immigration attorney to evaluate the nature of the removal proceedings and how you can terminate the removal proceedings so you can still proceed to do EB-5 Program.

EB-5 Law & Related U.S. Law (123)

FAQs on EB-5 law and related immigration law

See: http://www.dazlaw.com/index.php?option=com_content&view=article&id=117:g...

The above article says:

Yes, if you meet certain requirements. There are two ways to bring your daughter to the United States as a permanent resident after her birth abroad. One way is very quick, while the other way may take a year to complete.

The law bestows U.S. citizenship on all people born within this country’s boundaries. The citizenship of a newborn child’s parents does not matter with births inside the United States. Children born outside the United States can also be considered U.S. citizens at birth depending on the citizenship of the child’s parents. If a child’s parents are only permanent residents when a child is born abroad, the child is not a U.S. citizen at birth. However, the law allows children born overseas to green card holders to obtain permanent residence status in two ways.

The best way to establish permanent residence for a child born overseas is to bring the child back to the United States when you first return here. The immigration laws permit a child born overseas to get a green card upon first entry to the U.S. in two situations. First, if the child is born after an immigrant visa is issued at a consulate, but before the parents arrive in the United States for the first time, the child will be given permanent resident status upon entry. The child’s birth does not have to occur before the visa is issued to the parents. As long as the immigrant visa is still valid when the child is born and the parents bring the child upon their first arrival to the U.S., the child will be given permanent resident status.

The second situation considers when a permanent resident mother has a child overseas while on a short trip outside the United States. The immigration laws also permit a child born overseas during a temporary visit to obtain permanent resident status if the child is brought back with the mother on the mother’s first return to the United States. This scenario has a few additional conditions that must be met. First, the child must be accompanied by the mother upon entry to the United States. In the previous example, either accompanying parent could bring the child, but when the child is born during a temporary trip abroad, the mother must accompany the child. Second, the child must be brought to the United States before his or her second birthday. If the child is already two years old, then this option is not available. Third, the child must be brought to the United States upon the first trip back here by the mother. If the child is left behind when the mother arrives, then the child must obtain permanent residence through another method.

If the first entry method is no longer an option, a parent can still file an immigrant petition to bring the child to the United States. Fortunately, newborn children petitioned this way will not have to wait years and years to arrive. Unlike most other petitions filed by green card holders, petitions filed for children born on temporary trips abroad are exempt from limits and quotas. These petitions are processed immediately, and the child may be able to arrive in the United States in less than one year. Either parent can file the petition, although it is usually easier if the mother files for the child. There is no age limit in the law, but it is presumed that filing at a young age will present a stronger case for approval.

No, you have to marry before you obtain your Immigrant Visa if you and your spouse both want to obtain CPR status.

See below from a recent BIA decision regarding aged-out children under CSPA.

In summary, we conclude that an alien may satisfy the “sought to acquire”
provision of section 203(h)(1)(A) of the Act by properly filing the application
for adjustment of status with the DHS. Additionally, the alien may meet the
requirement by establishing, through persuasive evidence, that an application
he or she submitted to the appropriate agency was rejected for a procedural
or technical reason or that there were other extraordinary circumstances,
particularly those where the failure to timely file was due to circumstances
beyond the alien’s control.

DOS interprets it as a payment of IV Fee bill within one year. See:

http://www.abilblog.com/1/post/2012/01/state-departments-visa-office-tak...

Note this is a separate requirement from the termination of registration requirement for immigrant visa under 9 FAM 42.83 PN1 NO RESPONSE TO THE IMMIGRANT VISA APPOINTMENT PACKAGE OR FOLLOW-UP INSTRUCTION PACKAGE FOR IMMIGRANT VISA APPLICANTS OR REFUSAL UNDER INA 221(G)

http://www.state.gov/documents/organization/87927.pdf

Under 8 CFR 103.2(a)(7), the “receipt date” is the date on which the properly completed petition or application was actually received by USCIS, accompanied by the required filing fee.

(i) General. An application or petition received in a USCIS office shall be stamped to show the time and date of actual receipt and, unless otherwise specified in part 204 or part 245 or part 245a of this chapter, shall be regarded as properly filed when so stamped, if it is signed and executed and the required filing fee is attached or a waiver of the filing fee is granted. An application or petition which is not properly signed or is submitted with the wrong filing fee shall be rejected as improperly filed. Rejected applications and petitions, and ones in which the check or other financial instrument used to pay the filing fee is subsequently returned as non-payable will not retain a filing date. An application or petition taken to a local USCIS office for the completion of biometric information prior to filing at a service center shall be considered received when physically received at a service center. (Amended effective 6/18/07; 72 FR 19100 ) (Amended 6/1/01; 66 FR 29961)

[Q] Assume my family and I obtain CPR status through an EB-5 case, but we have an approved I-130 or I-140 whose priority date is not yet current. If the priority date becomes current, can we adjust at that time and obtain LPR status even though we are in CPR status?

Yes, because obtaining CPR status through an EB-5 case does not make the rights associated with an approved I-130 or I-140 immigrant petition disappear. You might have to submit a form giving up your CPR status though before you can be accorded LPR status via I-485 or IV consular processing based on an approved I-130 or I-140 immigrant petition.

USCIS is saying that their newly-hired economists and examiners want more explanations and justifications from the regional center operators and/or petitioners on why tenants' employees should be counted, and that this request for additional explanations or justifications is not a change in USCIS policy but just a request for more details.

In our opinion, USCIS should just come out and say this request for additional explanations and justifications reflects USCIS' belief that this is a more "reasonable" way of applying input/output methodologies, but the problem is that some of USCIS' requests go beyond normal information supplied in job-creating projects pursued even by the government, and this request for the "excess demand" or request for proof that the subject EB-5 project is not displacing jobs from competitors in the geographic region is frankly a very unrealistic and unachievable requirement. If it's clarity that USCIS wants, it should just clearly say that they will no longer accept tenants' employees as new jobs period because they feel there is not enough nexus. This way, at least there will be no more confusion. Now, no one knows what USCIS wants. Or allow an open communication between USCIS economists and private economists so that they can run by their studies in advance to arrive at a conservative job numbers acceptable to both USCIS and regional centers.

Yes, there have been some regional centers who intentionally or mistakenly misapplied the IO methodologies, but to be honest, both USCIS and regional centers had to go through the process of learning. The EB-5 community is disappointed because USCIS gave no advance warning or explanations on what they expect and then suddenly unleashing RFEs. There seems to be no real communication between USCIS and the EB-5 community.

USCIS has its own info at its official website:

www.uscis.gov/eb-5centers

In our opinion, USCIS should and could do a better job posting more helpful info on EB-5 area, including a FAQ on various issues regarding EB-5.

Yes, as the applicant is deemed to be in nonimmigrant status during the 60 days grace period.

Go to: http://eb-5center.com/overview for an overview. You should always read this section before getting into more detailed info.

Yes, but I rather go with a LP (per Uniform LP Act) as it is specifically mentioned in the reg. Why try to be a hero?

The concept of "material change" always existed in a factual context where immigrant petitions, including I-526s, were pending and not yet adjudicated. In essence, the "material change" concept prohibited an immigration petition which did not comply with the requirements for approval of the immigrant petition from being approved through a fix of the deficiency while the immigrant petition was filed, pending and not yet adjudicated. For example, in context of a U.S. citizen filing I-130 immigrant petition for his alien spouse, if the U.S. citizen petitioner was still married to another woman at the time of filing I-130, then legally, the I-130 cannot be approved. And if the U.S. citizen obtains a divorce during pendency so that the I-130 would now be approvable, the pending I-130 would have to be withdrawn and refiled because there had been a "material change" regarding the specific requirements for the approval of I-130. This concept is very simple and based on common sense; and is represented by Katigbak and Matter of Izumii case.

However, USCIS has -- in our opinion, unlawfully and mistakenly -- morphed this simple concept of "material change" to govern a totally different factual scenario where an I-526 petition has already been approved. Katigbak and Izummi simply do not govern or apply to an I-829 scenario where the I-526 has already been approved. If I-526 has already been approved without misrepresentation, the specific I-829 requirements must control and decide the I-829 conditions removal petition. Otherwise, why have the specific I-829 requirements at all? Now, if anyone disagrees with me up to this point, then there is no possibility that we will agree on further logical conclusions to be drawn.

In some sense, USCIS was forced to come up with this unlawful and mistaken reinterpretation of the concept of "material change" because of another wrong analysis USCIS reached regarding the holding of the 9th Circuit Chang case. The Chang case held that in context of I-829 petition, the petitioner has the right to rely that the I-829 petition will be approved if the terms of I-526 have been followed through. Basically, the Chang court held that USCIS could not apply the changed EB-5 law (the change occurring after I-526 approval but before I-829 adjudication) to the pending I-829. In other words, USCIS could not retroactively apply the changed EB-5 law to deny I-829 when I-526 had already been approved and the terms of I-526 have been complied with substantially.

Now, in support of its holding, the Chang court said that I-829 cannot be decoupled from I-526. However, it should be noted that the Chang court did not hold that if there has been certain change to the terms of I-526 business plan AFTER I-526 approval, the I-829 petition must necessarily be denied. The Chang court said, if I-526 petition terms have been followed through, the petitioner has the right to expect that I-829 will be approved. But this did not mean that if some aspects of the terms of I-526 petition were altered, I-829 should be necessarily denied. It could be denied, or it could be approved -- depending on whether specific I-829 requirements were still met, despite the change. Otherwise, any minor, small change occurring after I-526 approval, would necessarily doom I-829 petition. And the Chang case certainly never meant to support this absurd result. Therefore, USCIS came up with a proposition that only where there is "material change" after I-526 approval, will I-829 be denied. But this means whether a change is "material" or not depends specifically on whether such change makes it not feasible for the petitioner to meet the specific I-829 requirements. If the I-829 requirements have been met despite the change, how can such change be deemed "material"? This is what I am getting at.

Now, all this must lead to a single question: What is the "material change", as opposed to "immaterial change"? The logic dictates that any change is "material" if such change would lead to the petitioner not being able to meet one or more of the very specific I-829 requirements. By definition, if despite the change, all specific I-829 requirements are met, that change can not be deemed "material".

But that's not USCIS' position on this matter. To date, we have not heard USCIS provide a clear rationale on this issue. We sincerely hope that someone at USCIS will see that their position is not supported by the logic or common sense, and that the "material change" concept has no place in a scenario where I-526 has already been approved, because in deciding whether an I-829 petition should be approved or denied, only the specific I-829 requirements should govern and control. Otherwise, there will be no end to the list of what change is material and immaterial.

You have to distinguish between "out of status" and unlawfully present. When you become "out of status" or fail to "maintain your status", you may or may not be deemed to be accruing "unlawful presence". Basically, you have to avoid acquiring unlawfully presence period of 180 days or more, and avoid 3 year and 10 year bars from obtaining any immigrant or nonimmigrant status.

If you cannot maintain your status all the way until you obtain conditional green card, you better talk to an experienced immigration attorney regarding your case because this has serious legal and practical consequences to your future ability to obtain any kind of visa or status (both nonimmigrant and immigrant status).

This is one of the reasons we do not advise any potential EB-5 investors residing abroad to come into US as tourists and then try to start and complete their EB-5 cases.

Relevant regulations state:

(ii) In the case of a high unemployment area:

(A) Evidence that the metropolitan statistical area, the specific county within a metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150 percent of the national average rate; or

B) A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area. The letter must meet the requirements of 8 CFR 204.6(i).

8 CFR § 204.6 Petitions for employment creation aliens.

(i) State designation of a high unemployment area. The state government of any state of the United States may designate a particular geographic or political subdivision located within a metropolitan statistical area or within a city or town having a population of 20,000 or more within such state as an area of high unemployment (at least 150 percent of the national average rate). Evidence of such designation, including a description of the boundaries of the geographic or political subdivision and the method or methods by which the unemployment statistics were obtained, may be provided to a prospective alien entrepreneur for submission with Form I–526. Before any such designation is made, an official of the state must notify the Associate Commissioner for Examinations of the agency, board, or other appropriate governmental body of the state which shall be delegated the authority to certify that the geographic or political subdivision is a high unemployment area.

[Q] I have a question about the EB5 scheme which I hope you can help with. I do not have $500k cash. However, I do have $500k cash sitting in my personal pension fund for which I can prove that I am the beneficial owner and it has been lawfully gathered. Can I use this cash, via the trustees of the pension fund, to invest in the EB5 scheme to gain a green card in my name?

Although USCIS has not given a definitive guidance on this issue, the answer is probably not, because the pension under the control of the trustee is considered to be another entity, and the investment money has to come directly from you, individually.

Many foreign EB-5 investors want to be able to wire directly from the pension account to an escrow account to avoid tax consequences, but the EB-5 regulations say the investment must be from the investor. You could argue that the pension money belongs to investors, but legally speaking, although the investor has beneficial interest, the trustee has control, so I think USCIS is right about this one.

USCIS has stated:

The Security Exchange Commission (SEC) is the appropriate source to provide guidance regarding whether an entity and/or particular capital investment instrument is subject to SEC regulations. USCIS does not oversee EB-5 Regional Center compliance with SEC regulations. It is important to note that many other federal government agencies are involved in the oversight of business entities and capital investment instruments that are utilized for investments within the United States, to include the SEC. Unlike the Executive Order 12959 requirements regarding USCIS’s assistance with OFAC regulations, USCIS typically has no role in regulating aspects of EB-5 capital investment unrelated to immigration.

USCIS has stated:

Answer: Every EB-5 investor must create at least 10 jobs as a result of his or her capital investment. However, meeting the job creation requirements through job maintenance in a “troubled business” also involves demonstrating that the number of existing employees were maintained at no less than the pre-investment level during the EB-5 investor’s two year period of conditional permanent residence. [See 8 CFR 204.6(j)(4)(ii) & 8 CFR 216.6(c)(1)(iv).]

8 CFR 204.6(j)(4)(ii) reads:

(ii) Troubled business. To show that a new commercial enterprise which has been established through a capital investment in a troubled business meets the statutory employment creation requirement, the petition must be accompanied by evidence that the number of existing employees is being or will be maintained at no less than the pre-investment level for a period of at least two years. Photocopies of tax records, Forms I-9, or other relevant documents for the qualifying employees and a comprehensive business p lan shall be submitted in support of the petition.

And 8 CFR 216.6(c)(1)(iv) reads:

(iv) The alien created or can be expected to create within a reasonable period of time ten full-time jobs to qualifying employees. In the case of a "troubled business" as defined in 8 CFR 204.6(j)(4)(ii) , the alien maintained the number of existing employees at no less than the pre-investment level for the previous two years.

The above regulations show that the number of existing employees to be maintained must be "no less than the pre-investment level for the previous two years", but this is problematic because it is unclear whether the number of employees cannot dip below the pre-investment level. And it is for this reason, I would not advise anyone to pursue a troubled business EB-5 case.

Not really. This is why sometimes you will see USCIS or CSC disavow any answers provided at these EB-5 stakeholders meetings. If you look at any presentations prepared by USCIS or CSC, it reads:

This presentation is intended to provide a guide for discussion at the stakeholders’ meeting and to explain current USCIS policy and practice. It is not intended to be an official statement of USCIS policy, and does not supersede any existing statutes, regulations, or policy memoranda. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in any way.

Basically, the presentation and answers provided at EB-5 stakeholders meetings is supposed to explain how USCIS stands on certain issues, but the problem is, as expressed by many EB-5 practitioners and regional centers, often, the expressed positions stated in these EB-5 stakeholders meetings are not reflected in CSC examiners' decisions or RFEs. This is why many EB-5 practitioners feel that actual CSC examiners who decide EB-5 cases should be present and express their interpretations.

[Q] If 2 investors (me and my friend) invest 1 million dollars each to set up a new restaurant, do we have to create 20 employees (10 employees each) or can we create 10 employees only?

The answer depends on whether all investors in a new commercial enterprise are EB-5 investors. If only you are investing and applying for an EB-5 case, whereas others are investing and not pursuing EB-5 cases, then all jobs created from the new business project can be allocated to you, who are pursuing an EB-5 case.

As an example, if the new business will create 25 full-time jobs from the investment from you and your U.S. citizen or green card holder partners, then you can get credit for all 25 jobs.

See what USCIS said on this issue.

USCIS stated that the investor’s Form I-526 petition must show that the area in which the capital investment has been made qualifies as a “rural” area or an area of “high unemployment as of the date of filing of the Form I-526 petition or the date of the capital investment, whichever occurs first. For additional information regarding the statistics to use in making TEA determinations, stakeholders may contact the Local Area Unemployment Statistics (LAUS) division within the U.S. Bureau of Labor Statistics (BLS) as the BLS has published technical bulletins on this topic.

Moreover, two avenues by which someone can establish an area as a TEA are by providing the statistical documentation directly to USCIS or by obtaining a TEA determination from the state in the area in which the investment is going to be made. In every case, the TEA determination is made as part of an I-526 petition adjudication.

Let's examine the regulatory definition of TEA.

Targeted employment area

means an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 per cent of the national average rate.

Rural area

means any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more.

According to some EB-5 practitioners, even though the regulation uses the word "or," the USCIS interprets this definition as meaning that an area must be both outside a metropolitan statistical area and have a population of less than 20,000. This means some truly rural areas cannot qualify as TEAs for EB-5 purposes because they happen to be located in a sprawling MSA. If the USCIS refuses to change its interpretation of the definition, Congress should fix the problem legislatively. Personally, USCIS' interpretation seems more convincing here, but the real question is does this reflect the statutory goal, because the regulations are made up by USCIS, and USCIS did not have to define "rural area" in this restrictive manner. I know many areas within populated city or county which is undeveloped and should be considered "rural area".

Again, this seems to be a very restrictive approach. Why take this approach if the underlying purpose of the EB-5 Program is to create jobs. Let businesses create jobs, and the government should interfere as little as possible. Again, it quite doesn't make sense to this author what is the benefit of trying to kick out EB-5 investors who have not committed crimes and who undoubtedly did help the US economy, although may not have met the 10 full-time jobs creation requirement.

Yes, even if EB-5 investors compose a minority portion of all investors (EB-5 and non-EB-5 investors) in the project. Theoretically, even if out of 100 investors only one investor is EB-5 investor, all jobs from the project can be allocated to this single EB-5 project, in which case a single EB-5 investor can be credited with creating 500 jobs or more. This is another way of saying if a project creates 500 jobs, and there was only one EB-5 investor in the project, all 500 jobs could be allocated to this single EB-5 investor for his or her I-829 petition.

Let's see what INA 274B(a)(6) states:

A person's or other entity's request, for purposes of satisfying the requirements of section 274A(b), for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1)."

If it can be shown that (a) the employer is requesting documents for a purpose other than satisfying the I-9 requirements of 274A(b), and (b) the request for documents was not made for the purpose or with the intent of discriminating against an individual, then it appears that it would not be an unfair immigration-related employment practice or "document abuse

It seems to me that as long the US employer can show that the USCIS requires this for non-I-9 purpose and non-discrimination purpose, the employer will be insulated from any lawsuits by employees.

Probably not. USCIS stated that its legal position is that municipalities cannot act for a state by issuing high unemployment area designation letters. Specifically, Texas better change its policy to comply with this USCIS position.

No, under the regs, a state cannot designate a specific area as "rural"; they can only provide a designation letter for a high unemployment area.

Yes, in regional center and also troubled business context. In other words, if an EB-5 project is a regional center affiliated and also qualifies as a troubled business, then direct, indirect and induced job numbers created OR saved can make up the 10 full-time positions required.

EB5 or more accurately EB-5 stands for Employment Based 5th category. Basically, it's a 5th (and last) category of all employment-based immigration categories.

More accurately, it is often referred to "employment creation category" or "investor immigrant category", rather than "employment based 5th category", because this category is supposed to create jobs not be employed by a U.S. employer.

We believe if run properly, the EB-5 category can truly help the U.S. economy and U.S. workers by creating much-needed jobs for American workers. Anyway, we do not like hazy and confusing ways to count the jobs created; we believe USCIS has to require a simpler and more transparent job counting methodologies to maintain the integrity of the EB-5 Program.

This new concept was first referred in the Neufeld Guidance Memo of December 2009. Basically, USCIS has left the term to the "when we see it, we will know it" standard. Obviously, this will not work. Logically, one cannot say something is "material", without first asking "in respect to which requirement"? Obviously, the requirements here are the specific I-829 requirements stated in the regulations.

The strange thing is why did USCIS feel the need to bring in this new concept, because either you meet the specific I-829 requirement or you don't.

USCIS is legally wrong to bring the Matter of Izumii case to aid their argument, as this case is completely inapplicable to I-829 situation.

USCIS is also legally wrong to say that this concept existed in the past. However, that's what USCIS is saying. And until USCIS changes its policy (of which there is some chance as USCIS specifically asked for comments on the Neufeld Memo) or there is a court decision stating so, the concept of "material change" will impact I-829 petitions. It's just an unfortunate situation of USCIS missing the ball and muddying the water.

The bottom line is you either met the specific I-829 requirements or you don't. Why does USCIS need to bring in the "material change" concept? You only bring in a new concept when you have no legal basis to deny. That's why.

Matter of Katigbak, 14 I&N Dec. 45 (Comm’r 1971).

Katigbak held that an I-140 beneficiary must meet all requirements specified on her employer’s labor certification application as of the date of the application’s submission. Specifically, the Katigbak case found: You must determine whether the beneficiary has met the minimum education, training, and experience requirements of the labor certification at the time the application for labor certification was filed with DOL. You cannot approve a petition for a preference classification if the beneficiary was not fully qualified for the preference by the priority date of the labor certification.

As you can see, this was a very narrow holding involving a labor certification based I-140 immigrant petition. The Service appears to be intent on applying this case with a very narrow holding to the situations where changes occur AFTER I-526 approvals. That's just a bad reasoning because no one is arguing that I-526 should be approved where the I-526 does not meet the legal requirements at the time of filing. Instead, we are talking about changes that occur due to good faith business necessities or economic factors AFTER I-526 approval, based on the I-526 petition which did meet all legal requirements at the time of submission.

After many years of practicing in the EB-5 area, the best practical answer we can give is "EB-5 law is whatever USCIS says it is UNLESS the Congress or federal court says otherwise." :) Forget a long legalese explanation; this is the best practical definition we can provide.

Yes, legally speaking, neither petition will be adversely affected by the other. This is because H-1B nonimmigrant petition is a "dual" immigrant and nonimmigrant intent -- that is H-1B petitioner may possess an immigrant intent as shown by the submission of I-526 immigrant petition.

Of course, the Child Status Protection Act (CSPA) applies to all family-based and employment-based immigration cases. As you know, EB-5 stands for Employment-based Fifth Category. :)

As usual, USCIS and DOS interpret CSPA narrowly.

For the reasons explained below, we believe there is no legal support under the current U.S. immigration law for the outlined procedure of reacquiring CPR status just given up via Form I-407 by filing I-485 adjustment of status application. What the Memo is espousing is in fact a violation of the U.S. immigration law.

The December 11, 2009 Neufeld Memorandum states that the conditional resident who abandons his or her conditional residence via Form I-407 is eligible to adjust status to a new two years period of conditional residence. But upon detailed examination, this position appears not to have legal support.

First, INA Section 245(f) prohibits the adjustment of status of an alien lawfully admitted for conditional residence under Section 216A -- which presumably includes any aliens who initially obtained CPR status under Section 216A, even if the CPR status was abandoned through submission of Form I-407 -- but in Matter of Stockwell, 20 I & N Dec. 309 (BIA 1991), the Board has interpreted the implementing regulations (8 CFR Sec. 245.1(c)(5)) as allowing adjustment of status to those aliens whose conditional status have been terminated, which presumably supports the underlying assumption in the Neufeld Memo that if the investor abandoned his CPR status via Form I-407, then he can adjust again to reacquire the new CPR status.

But the problem with the above argument is that INA Section 245(c)(7) prohibits adjustment of status for any alien seeking adjustment under employment based categories and is not in a lawful nonimmigrant status. In essence, the adjusting alien must have a lawful NONIMMIGRANT status in order to adjust, but if the alien gives up his CPR status, which is NOT a nonimmigrant status anyway, where is the lawful NONIMMIGRANT status required for adjustment of status? There simply is no lawful nonimmigrant status from which to adjust status. By filing I-407 concurrently with the new I-485 adjustment of status application, the alien may be in a lawful immigration status, but the alien certainly is not in any lawful NONIMMIGRANT status, which is a clear requirement.

Lastly, from a practical perspective, USCIS examiners looking at the new I-485 adjustment of status application will probably deny such I-485 application under the existing immigration laws governing I-485 adjustment of status, no matter what the Dec 11, 2009 Neufeld Memo says. After all, the Neufeld Memo is not a law, as the Memo states at the end.

This shows you that the procedure outlined in the Dec. 11, 2009 Neufeld Memo lacks legal foundation. Basically, you can't carry out what is outlined in the Memo without violating the existing U.S. immigration law!

[Q] Two questions. Can two individuals join and invest 100% of either $500k or $1m as single investment entity and would such investment still be valid to qualify for EB5?

Let's say it's a TEA case, and the requisite capital investment amount is $500,000. Two EB-5 investors cannot together come up with this amount; neither investor will satisfy the capital investment amount. An easy way to understand is to realize that both the capital investment amount and job-creation requirement must be met by each EB-5 investor, separately.

[Q] Sometimes, EB-5 projects may encounter delays to projects caused by various factors that make it tough to create jobs within 2 years of CPR period. Will this be deemed a "material change" under the December 11, 2009 Neufeld guidance memo and therefore require a new, 2nd I-526 filing?

Yes, if one chooses to accept the argument that "material change" after I-526 approval must require a new, 2nd I-526 petition filing. However, USCIS has not explained why is some change "material" in respect to what I-829 requirement and why? The memo appears to not set forth a clear standard for determining what changes are indeed "material" -- to what? Or why a simple amendment to the already-approved I-526 cannot be a solution.

USCIS should not say some change to the project after I-526 approval is material without first explaining how and why such change is material to what specific requirement of I-829.

[Q] I am planning on doing a direct, individual EB-5 case based on a lowered $500,000 investment in a rural area, i.e. TEA qualification. I am planning on investing $200,000 of my own money and coming up with the remaining $300,000 from a collateralized bank loan. Is this permissible?

It all depends on which asset is used to collateralize the loan of $300,000 from the bank. If the underlying EB-5 investment asset was used as a collateral to obtain a loan of $300,000, then forget it -- you can't do it. But if your own personal asset, such as your house, was used as a collateral to obtain additional $300,000, then that would be fine.

Rationale: The definition of permissible "capital is defined in such a way to exclude any loans obtained using the underlying EB-5 business as a loan collateral or security.

[Q] As per the new EB 5 guidelines contained in the December 11, 2009 Neufeld guidance memo governing "material change", I may need to apply for a fresh I-526, and once this gets approved I need to abandon my CPR using form 407 and reapply for adjustment of status again. My question is what would be my status after abandoing of CPR and waiting for adjustment of status the second time around? Can I live and work here legally while waiting for adjustment of status the second time around? Also I read somewhere that you cannot apply twice for adjustment of status under INA 245(a) - if so what does one do?

First, in the event you accept the validity of the Neufeld memo as the correct application of the EB-5 law AND you accept the fact that there was "material change" -- which USCIS has not explained or defined clearly -- then yes, you may file a new, second I-526 immigrant petition and file I-407 to give up the existing CPR and then submit a new I-485 to acquire a new CPR. Your status would be the same status you would have whenever someone files I-485 -- which is legal status which allows you to work and travel as long as you apply for EAD and Travel Permit.

Presumably, USCIS allows an alien who entered the U.S. as a CPR to adjust under 245(a) because he or she gave up the CPR.

[Q] Let's say a troubled business has 50 jobs, and 4 alien EB-5 investors invested and saved 40 jobs, will all of them get their permanent green cards?

Common sense would say "Of course." However, according to a recent EB-5 stakeholders meeting, USCIS orally "opined" that all of a troubled business’ jobs must be saved in order for any investor to qualify for condition removal. In other words, if a company has 50 jobs, and the investments of 4 investors saved 40 jobs, none of the 9 investors would get I-829s approved, since all in effect 10 jobs were lost.

Folks, this interpretation, if really true, is not only against common sense, but practically makes EB-5 cases through a troubled business impossible. We sincerely hope that USCIS "corrects" or clarifies its opinion on this matter.

Again, where is the statutory or regulatory support for this "opinion"? Oh yes, USCIS is sort of correct if they take the position that "there is nothing in the statute or regulation which specifically says otherwise." But then, there is nothing in the statute or regulation which supports what USCIS says. On the other hand, their "opinion" on this issue goes against the common sense and policy of EB-5 Program. Yes, let's allow the troubled business to go down under and not even try to save some jobs. This kind of policy promotes inefficiency: why should alien EB-5 investors save all jobs when they can operate the troubled business with less than all jobs?

This is why we inform any potential EB-5 investors trying to do an EB-5 case through a troubled business, we tell them to think twice.

Answer: If the petition was denied, then it is not possible to submit the second petition. If it remains pending, you can submit withdrawal of the I-829 along with the second I-526.

Source: CSC Stakeholders Meeting on April 28, 2010 at Laguna Niguel California.

[Q] I’m currently on F-1 visa status, and am planning to marry my boyfriend (who is also on OPT status in the US) in the next few months. Can we file our application together with me as the principal applicant, and my boyfriend as the dependant? Do we have to get married before we submit the EB-5 application, OR can we get married after the application has been submitted, and is under review?

Under the general U.S. immigration law, you don't have to marry your boyfriend BEFORE you submit the I-526 immigrant petition in order to include him in your EB-5 case; but you do have to marry him before you obtain immigrant visas. However, practically speaking, to avoid a delay in the processing, I would just marry before submitting the I-526 immigrant petition.

No, I guess USCIS does not want to encourage people from working in out-of-status.

No, not unless they are divorced, or the principal applicant is dead. This can create all kinds of sticky situations for attorneys and everyone involved.

No, the two concepts are separate and different. An EB-5 project can be regional center based but require $1 Million USD investment. Any EB-5 project must be one of below four categories.

1. Non-regional center based and non-TEA: Only direct, full-time positions can count, and $1 Million USD investment required per each EB-5 investor.

2. Non-regional center based and TEA: Only direct, full-time positions can count, and $500,000 USD investment required per each EB-5 investor.

3. Regional center based and TEA: Direct, indirect and induced positions can count, and $500,000 USD investment required per each EB-5 investor.

4. Regional center based and non-TEA: Direct, indirect and induced positions can count, and $1 Million USD investment required per each EB-5 investor.

Having said this, almost all of regional center based EB-5 projects are TEA projects to take advantages of the benefits offered under both concepts.

[Q] Dec 11, 2009 Neufeld guidance memo discusses "material" changes to EB-5 projects AFTER I-526 petition approval that make I-829 conditions removals fatal and therefore, require new, additional I-526 filings, in addition to longer CPR status. What are the legal differences between "material" and "immaterial" changes to EB-5 projects?

This is big "black hole" issue which has not been well articulated by USCIS/CSC and needs to be addressed quickly.

In our opinion, if one reviews I-829 requirements carefully, the only "reasonable" conclusion that can be reached is that only those changes to the EB-5 project -- after I-526 has been approved -- which would be fatal to meeting I-829 requirements should be considered to be "material" changes -- and therefore require filing of new, additional I-526 petition. Any other changes should be considered "immaterial" and I-829 petition submitted which contains any "immaterial" changes should be reviewed and approved, without subjecting the case to go through another filing and approval of I-526 petition -- and also without subjecting petitioner to undergo additional CPR time periods.

It's an entirely different story if the changes occur before I-526 is approved, or while I-526 is pending.

No, you can't use 245(k) to adjust in the U.S. based on approved I-526 immigrant petitions.

Only aliens in the following preference categories are eligible to take advantage of Section 245(K) if you otherwise meet the conditions mentioned above:

* Employment-Based First Preference (EB-1) – All priority workers.
* Employment-Based Second Preference (EB-2) – Professionals with advanced degrees or aliens of extraordinary ability (National Interest Waiver).
* Employment-Based Third Preference (EB-3) – Skilled workers, professionals or other workers.
* Employment-Based Fourth Preference (EB-4) – Religious workers (only).

The section also applies to spouses and children of eligible aliens.

As stated above, INA 245(k) allows some aliens, who are eligible for permanent residence based on a family relationship or job offer to become lawful permanent residents (with green cards) without leaving the United States. Most aliens who have entered the United States without being inspected, overstayed their visa or otherwise violated the immigration laws of the United States in some way, are unable to adjust status to lawful permanent resident without leaving the United States.

Unfortunately, EB-5 category is not covered as one of the classifications allowed to use 245(k). We do not know what the rationale is in excluding EB-5 category from the benefit of 245(k) though.

Dependents would also lose their conditional PR status also. Until the Principal Applicant obtains permanent green card status, dependents' status depends on PA's status.

[Q] If an alien investor makes requisite investment into a business and turns 12 part-time positions into 12 full-time positions, will this count as more than 10 full-time jobs?

Interesting question. We think (we are not sure as CSC has not answered this one definitively) that CSC would say "no", because they would argue that these were existing part-time positions which got "upgraded" to full-time positions and therefore, they are not "new" jobs. However, one can easily argue that even though the existing part-time jobs were NOT "new", full-time jobs are indeed "new".

Again, one can make a strong argument that there is nothing in the EB-5 statues and regulations prohibiting this kind of "full-time" jobs from being counted, but here is the problem: USCIS can also argue there is nothing in the EB-5 statues and regulations that says you can do this. Who's right? We believe where the issue is grounded in real life situation, and relevant EB-5 statues and regulations do not prohibit specifically, USCIS should follow practical approach and count this kind of full-time jobs.

Does this make sense? We do not think so. Anyway, this question should be posed to CSC directly.

The reason why we believe EB-5 Program has not reached its potential is precisely because there is no clear guidance on this type of questions. It's weird when the EB-5 Program has been in existence for over 15 years but to date, there has been no answers to these kinds of important questions. We, as EB-5 practitioners, should not be timid about asking this type of questions.

[Q] Potential EB-5 investor client is going to establish a new (2010) corporation. His new corporation plans to purchase a nursing home, which has been in business since the 1970s. Based upon my reading of the relevant case law (Matter of Soffici), it is the age of the nursing home operation in question that is controlling, and not the fact that this new corporation was formed in 2010. It appears that USCIS could argue that this will not be a "new" commercial enterprise because the nursing home was in operation prior to 1990.

We believe that USCIS will rule that this is not the "new" commercial enterprise. We believe there was AAO case law on this. Also, common sense would dictate this conclusion. Therefore, unless there is a requisite "expansion" or "restructuring", no "new" commercial enterprise has been established. Basically, under the EB-5 law, "restructuring" is a very hazy concept which USCIS has not bothered to clarify; therefore, it's best to avoid any "restructured" EB-5 project. Also, when it comes to proving "expansion", not that easy in practice.

Even if the above structure qualifies as a "new" commercial enterprise, as readers of the www.eb-5center.com site knows, additional jobs must be created in addition to any existing jobs.

[Q] EB-5 Investors (each with $1 million or more to invest)want to invest with me to form a new direct EB-5 investment company whose business will be to make direct loans to other businesses that will have job creation enough to reach 10 new jobs per investor. Can this new business loan company be structured as a direct investment for the EB-5 Investors?

No, you cannot, because direct, individual EB-5 cases require jobs to be created directly. Jobs that are created by making loans to job-creating business(es) are all indirect and/or induced jobs.

[Q] Imagine a situation where a current E-2 investor has 3 companies in which he has invested approximately $400K in each (total $1.2 million investment). He is the 100% owner of all 3 companies. One of the companies owns the job-creating business, let's say a car wash, which already created 10 full-time positions. The other 2 companies own real estate leased to the business. The investments were made several years ago.

To try to qualify for EB-5 case, can the investor form a holding company in which he would be 100% owner, and then transfer all of his shares in each of the 3 separate companies to the holding company? In this way, there would be one holding company and the 3 corporations would be wholly-owned subsidiaries of the holding company. Would this structure comply with the definition of commercial enterprise at 8 CFR 204.6 and, as a result, allow all investments in the 3 separate companies to be pooled for purposes of showing $1m investment?

This is an interesting question and happens more often that one thinks.

Now, EB-5 law says one holding companies which wholly-owned subsidiaries can be treated as a New Commercial Enterprise for EB-5 purpose. Also, the investment and jobs created in the past can qualify for EB-5 case, as long as the jobs are maintained for a new CPR period after I-526 approval. However, we would not take the case if we were the processing attorney for the following reasons:

1. CSC could argue that not all $1 MM (assuming this is a regular, non-TEA EB-5 case) went towards the job creation. In the instant case, only $400,000 was applied towards the job-creation, and that the remaining two companies (now wholly-owned subsidiaries) did nothing.

2. CSC could argue that since you materially change the original structure, you now have to make an entirely new investment.

All of the above arguments that could be made by CSC might not be practical or fair, but they could and will likely make those arguments and deny your EB-5 case. No, we would not take the above case, given this possibility.

In a direct EB-5 case, the answer is "no", because the underlying new commercial enterprise must create jobs directly, and only for-profit entities can be new commercial enterprises. However, in a regional center EB-5 case where a new commercial enterprise is engaged in making loan(s), i.e., Izumii case, borrower entity creating jobs can be a non-profit organizations such as museums and non-profit hospitals or churches.

{Q} Would a loan backed by future cash flows qualify? Can an EB-5 investor argue that the loan is collateralized by his business which generates the future income? Basically, does this loan qualify as "capital"?

In our opinion, USCIS will have some issue with this arrangement, because basically this loan is given on the borrower's good credit or name. It's like Bill Gates going to any bank and getting a loan purely based on his perceived ability to make money. What is a loan collateralized by personal asset is sometimes a grey area, because one could argue that one's good name is personal asset also.

[Q] USCIS requires that the EB-5 petitioner, a holding company that owns a restaurant 100% (the job creating entity), show that it has made the full amount of money available to the restaurant, per Izumii. Izumii does not define what "make available" actually means. Are there cases or memos that define what it means for a holding company to "make available" the full amount of money to its wholly owned job-creating entity?

There is no other case or memo, although it is true that the full amount of money must be made available to the entity most closely related to the job-creation. The best guidance for the phrase "make available"is dictionary definition and common sense: either loan (in case of regional center based EB-5 project), invest, give or provide money to the job-creating entity, i.e., restaurant subsidiary in this case and use it some way towards the job creation.

You must have a nice friend. :) The EB-5 regulations state that the capital must have been obtained "through lawful means." 8 CFR 204.6(j)(3). Therefore, the emphasis of proof should be on showing that the giver of this gift made money "lawfully", rather than showing that the gift tax was paid.

It should be noted that different countries have different laws about gifts. Some countries do not impose tax on gifts, while some countries require receivers, rather than givers, to pay tax on the gifts.

[Q] Can an I-526 be filed and approved based on the requisite investment and 10+ job-creation in or by a new commercial enterprise where both the investment and the job creation took place 4 or 5 years in the past, without having to create additional jobs after the I-526 petition is approved? Also, if the answer is "Yes", do the previously created 10+ jobs have to be maintained during the conditional resident period for the I-829 to be approved?

USCIS Answer: Yes, the jobs created a number of years ago still count, and yes they must be maintained during the conditional resident period.

If the new commercial enterprise entity just changes its name and EIN number but remains the same in other respects, USCIS will accept the entity as the same entity, but if any additional changes are involved, USCIS will decide on case-by-case basis.

Having said this, we have seen situations where USCIS or AAO will not accept the successor-in-charge concept, so realize that the EB-5 law as understood by USCIS varies among examiners.

According to USCIS, at the time of filing (not at the time of investment) I-526 petition. Even if TEA designation changes in future, it's OK, as long as this initial requirement has been met.

Note USCIS later clarified the controlling time as either the filing date or time of investment, whichever is earlier. Where an escrow mechanism is used, the controlling point of time is when I-526 petition is filed, but if no escrow is used, it's time of capital investment. See Dec 11, 2009 Policy Memo, pages 16 to 17.

The above position seems to have changed, as USCIS stated most recently during the January 23, 2012 Q & A meeting the following:

TARGETED EMPLOYMENT AREAS

Q: Please clarify whether a TEA exists only for a specific application, allowing geography to change to meet investment need or if a TEA in a metropolitan area is set for a period of time (one year from approval) making the TEA community sensitive.

A: The following is taken directly from the December 11, 2009 policy memo, Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and Form I-829 Petitions:
“If the regional center proposal bases its predictions regarding the number of direct or indirect jobs that will be created through EB-5 investments in the regional center, in whole or in part, by offering investment opportunities to EB-5 investors with the reduced $500,000 threshold, then the Targeted Employment Areas (TEAs), Rural Areas (areas with populations under 20,000 people) and areas of high unemployment (areas with unemployment rates 150% or more of the national rate), should be identified.

Note: An alien filing a regional center affiliated Form I-526 must still establish that the investment will be made in a TEA within the regional center at the time of filing of the alien’s Form I-526 petition, or at the time of the investment, whichever occurs first, to qualify for the reduced $500,000 capital investment threshold.” Therefore, the current policy is Form I-526 specific; i.e., each alien investor must demonstrate that his/her investment has been made or is in the process of being made within an area of high unemployment as part of the Form I-526 process.

It's a form used to give up one's permanent residence status in front of a consular office at the American Embassy abroad. Under the U.S. immigration law, a permanent resident can "give up" his or her permanent residence at the American Embassy by giving a written affidavit statement.

[Q] Many USCIS Field Offices refuse to stamp passports of people who have pending I-829s with temporary evidence of permanent resident status with I-551 stamp, on the ground that I-829 receipt notice should suffice for work and travel purposes. However, this view does not take into account the fact that CPB often wants to see temporary stamps. Will you issue a memo to all USCIS Field Offices telling them that all pending I-829 applicants should get their permanent resident stamps in their passports?

In USCIS' own words:

USCIS is in the process of updating the language regarding this issue on the Form I-829 receipt notice which will resolve this issue.

[Q] If an I-829 petition is denied because of a determination that the jobs will not be created within a reasonable time or because the investor was not aware of the need to file an amended I-526 petition, will the investor be placed into removal proceedings in order to renew the I-829 before an immigration judge? What are USCIS’ procedures to place an EB-5 investor in removal proceedings? We have heard stories of EB-5 investors waiting months before a notice to appear is issued. During that time, what is the investor’s status until the removal proceedings are initiated? If the investor or a family member is outside the United States, what document will be issued to enable the investor or family member to be reunited with the remainder of the family or to appear in the removal proceeding?

USCIS' answer:

In accordance with 8 CFR 216.6(d)(2), if after review of the petition, the director denies the petition, he or she shall place the investor in removal proceeding by issuing a Notice to Appear (NTA). The investor may seek review of the petition during removal proceedings. Petitions are sent to CSC’s NTA unit after the denial of the petition. The NTA unit prepares the NTA and issues it to the investor via mail. The investor's lawful permanent resident status and that of his or her dependent spouse and children are terminated as of the date of the director's written decision. Generally an NTA is not issued if USCIS determines that an investor or a family member is out of the United States and their status is terminated. If an investor or a family member is out of the United States at the time that their status is terminated, then he or she will be put into removal proceedings at the time of their application for admission. An alien investor retains conditional resident status and is entitled to proof of that status while he or she obtains review of the USCIS termination in removal proceedings.

[Q] An EB-5 investor invests in a company that operates several retail outlets. The company’s headquarters office is in a designated TEA, but the retail stores directly owned and operated by the company are not in TEAs. Assume 5 jobs will be created in the headquarters location and 5 jobs will be created at retail stores that are not in TEAs. How much money must the investor invest: $500,000 or $1 million?

This is what USCIS stated on this issue.

This question cannot be answered in the abstract without a clear presentation of the facts in the record of proceeding. Whether a particular case with this fact pattern can be approved is dependent upon a review of the specific evidence of record.

Actually, in our opinion, USCIS did not need to hedge their answer. In our opinion, the answer would be "no" based on the USCIS' past rationale on a similar issue and the Izummi precedent AAO case, because the entity closest to job-creation are retail stores and they must be located in TEA; otherwise, the requisite investment should be $1 MM case.

[Q] Pursuant to 8 C.F.R. § 204.6(i), please confirm that a targeted employment area (TEA) may consist of a geographic area designated by a governor's delegate, that is described by a collection of wards, census tracts, and/or other political descriptions (such as sets of city blocks), even when the precise location of a particular commercial enterprise is located in a ward or census tract that does not by itself have an unemployment rate of 150% of the national average.

Because this question is very important, USCIS' answer is quoted below in its entirety.

The regulation at 8 CFR 204.6(i) provides that a state government may designate a particular geographic or political subdivision located within a metropolitan statistical area or within a city or town having a population of 20,000 or more within such state as an area of high unemployment (at least 150% of the national average rate.) The following reasoning for involving states in this process was noted in legacy INS’ final rule implementing the initial EB-5 regulations, Employment-Based Immigrants, [56 FR 60897]:
Twelve commenters called for the Service to change the definition of targeted employment area. The Service cannot, of course, alter the statutory definition of targeted employment area. The Service has concluded, however, that the designation of smaller geographic or political areas within metropolitan statistical areas or within cities or towns with a population of 20,000 or more as areas of high unemployment would comport with the intent of Congress regarding targeted employment areas. [emphasis added]

This part of the rule contains a method for the designation of such geographic or political areas as areas of high unemployment. Under the final rule, a state government may delegate to any agency, board, or other appropriate state governmental entity the authority to certify that geographic or political subdivisions of non-rural areas within the state qualify as areas of high unemployment. The delegation must be reported to the Immigration and Naturalization Service through the Associate Commissioner for Examinations prior to the issuance of any area designation. The evidence of such area designations that a state provides to a prospective alien entrepreneur should include a description of the boundaries of the geographic or political subdivision and the method or methods by which the unemployment statistics were obtained.

This part is not intended to place any unnecessary burden upon any state. With respect to geographic and political subdivisions of this size, however, the Service believes that the enterprise of assembling and evaluating the data necessary to select targeted areas, and particularly the enterprise of defining the boundaries of such areas, should not be conducted exclusively at the Federal level without providing some opportunity for participation from state or local government. This part of the rule is merely intended to afford the states a method by which particular areas of high unemployment within their boundaries may qualify as “targeted,” and to allow alien entrepreneurs the opportunity to invest in such areas under the targeted employment area guidelines, including lowered investment amounts.

Based upon the reasoning provided in the final rule, state-issued TEA designations under 8 CFR 204.6(i) must be in accordance with the statutory definition of targeted employment in INA §203(b)(5)(B), which requires that a targeted area either be “rural” or an “area of high unemployment.” Further, 8 CFR 204.6(i) does not provide states with the authority to make TEA designations regarding whether a certain area qualifies as “rural”. Any state TEA designation must involve the assembly and evaluation of data in a manner sufficient to arrive at a defensible finding of high unemployment within the bounds of the area to be designated in a manner that is in keeping with the statutory requirement. That is why 8 CFR 204.6(i) provides that state designations be accompanied by a description of the boundaries of the geographic areas, and explain the method or methodologies by which the unemployment statistics were obtained. While state governments clearly have the authority to make TEA designations, states governments do not have the authority to designate areas as high unemployment that do not in reality qualify as a targeted area under INA §203(b)(5)(B).

It appears that this question solicits confirmation from USCIS that state-sanctioned attempts to “gerrymander” a finding of high unemployment that is not in accordance with the statutory requirement, through the cobbling together of various portions of political subdivisions so that an investment in a commercial enterprise in a location that is not a high unemployment area would ultimately qualify as one, is an acceptable business practice for EB-5 purposes. On its face, this supposition blatantly frustrates the congressional intent behind INA §203(b)(5)(B). As such, USCIS cannot confirm that this is an acceptable business practice for states to use in making TEA designations.

Whew . . . a long answer, huh? Whenever an answer is this long, that means they want to hedge both ways: they want to allow and disallow . . . at the same time.

[Q] Can an EB-5 investor use funds unrelated to the EB-5 investment to purchase insurance from a third party (e.g., Lloyd’s of London) in which insurance proceeds would be paid to the investor if the commercial enterprise fails to repay the investor? Assume the third party is unrelated to the commercial enterprise or a regional center.

Let me quote USCIS' answer to this particular question in its entirety, because this issue opens up interesting stuff.

Yes, as long as the alien investor’s capital is “at risk”, and the indemnity policy does not constitute a redemption agreement or a guaranteed buy-back arrangement for the alien investor’s investment in the commercial enterprise. A determination as to whether a specific indemnity policy is contrary to the statutory and regulatory requirements has to be made on a case-by-case basis.

USCIS, to make sure that EB-5 investors do not rush into buying insurance (assuming they can get an insurance for this kind of thing), states that a "case-by-case basis" determination will be made. This kind of language usually means: "It's legally possible but we don't think it's a good idea."

We would not be surprised to see this arrangement being attempted in near future.

CSC takes the position that such relocated jobs cannot count. Their rationale is as follows:

This question asks that if a large architecture firm moved offices from New York City to San Francisco, would those relocated jobs count for EB-5 purposes since San Francisco would benefit from an increase in jobs? The answer is no, because jobs that were in existence prior to the alien investor’s capital investment into the commercial enterprise cannot be credited towards the requisite creation of 10 jobs per each alien investor.

This is a curious answer given the fact that USCIS readily admits that

USCIS is unaware of any statutory or regulatory requirement, or of any vetted and published policy guidance that addresses the “discounting of relocated jobs” within a regional center’s economic analysis.

Basically, USCIS had an opportunity to choose a more practical position, but it simply chose to stick to a position which does not jibe with the real world needs, perhaps fearing that it would not have the means to check whether such relocation was truly necessary due to bona-fide business reason.

We believe a federal court will not agree with USCIS on this issue. Common sense wise, if a job is "new" to SF, and there was a bona fide business reason why the relocation was necessary, and there is a nexus between the alien investor's investment in SF and the "new" jobs being relocated to SF, then all EB-5 requirements have been met. Really, the heart of the issue goes to whether the jobs are "new" from the perspective of the United States, or are "new" from the perspective of SF, the underlying region. Where USCIS already stated that indirect jobs created outside the underlying region cannot count towards I-829 petition, it seems incongruous or illogical to state that the jobs relocated into the region should not count: if the jobs are "new" to the underlying region, and such relocation was due to bona fide business reason, then the relocated jobs should count as "new" to the underlying region.

Of course, disagreeing with the USCIS is one thing; spending a lot of money and time to fight USCIS is an entirely different matter.

[Q] Can an EB-5 investor purchase an existing business created AFTER November 29, 1990, and not have to expand or restructure this business and still qualify it as a "new" commercial enterprise?

Yes, because of the Section 11036 of the 21st Century Department of Justice Appropriations Authorization Act, Public Law No. 107-273, the alien investor does not have to have been involved in the creation of the existing commercial enterprise as noted above. Moreover, the alien’s investment would qualify without the need to show that the “new” commercial enterprise was “expanded” or “restructured/reorganized” under 8 CFR 204.6(h)(2) and (3).

However, the alien EB-5 investor still has to create the requisite 10 full-time employment.

Therefore, an EB-5 investor can purchase an existing business, as long as the business was established AFTER November 29, 1990, and meet the "new" commercial enterprise requirement; but the investor still has to create ten, new jobs, and cannot rely on the existing jobs.

By the way, CSC will not like the buyer-investor purchasing just assets (excluding existing employees) and then rehiring the same laid off employees.

In context of a regional center based EB-5 project where a new commercial enterprise engages in making loan(s) to job-creating businesses, while a non-profit cannot act as a new commercial enterprise entity (NCE), as the very definition of NCE precludes non-profits, a NCE can pool money and loan such pooled funds to non-profit which creates jobs. Why, simply because there is no prohibition, and jobs are jobs whether created by a non-profit or a profit entity. For example, a limited partnership can be set up to pool investors' funds and then loan such funds to a non-profit arts organization to construct a museum in a regional center geographic area.

The answer is "no". Don't try it, even though such action would save a lot of tax for the EB-5 investor. USCIS or CSC will deny your case. Their current position is that any transfer of money into a new commercial enterprise other than from the EB-5 investor's personal bank account does not comply with EB-5 law. We do not know if USCIS will allow transfers into a new commercial enterprise from a trust in which the EB-5 investor is a beneficiary.

The key is not get too creative, or you will get slammed.

[Q] EB5 Question regarding the targeted employment areas – the regs require that the investment must be made in a new commercial enterprise in a “targeted investment area”. And the definition of targeted investment area is defined by having a high unemployment rate or you also have rural area. Question – for the 10 employees – do they have to be in the same area or if the business in located in the TEA or Rural but jobs are somewhere else? I am thinking that by the definition of TEA and Rural, this would be circumventing the intent of the law?

I assume this is a non-regional center but TEA EB-5 case. The answer is "yes". Since this is a non-regional center EB-5 case, only direct jobs would count; therefore, those direct jobs created should be in the underlying TEA area in which the new commercial enterprise is located in. Otherwise, you can have a new commercial enterprise located in Hawaii and the jobs created in California. USCIS would not like that too much.

Each investor in a “troubled business” must show that the investment will save ten jobs. Therefore, 4 more jobs must be created. Basically, although 6 full-time jobs can be saved, 4 more full-time positions must be created. An EB-5 project involving a "troubled business" may offer some advantages, but from a marketing point of view, potential alien investors are afraid of investing in any business that is considered to be "troubled".

A flippant but not a false answer is "EB-5 law is whatever USCIS decides the EB-5 law is." There are certain broad EB-5 statutes and USCIS regulations promulgated pursuant to these statutes, plus precedent AAO decisions, guidance memos and some federal court cases. The problem is that there is no clear guidance on many of the issues arising from real-world scenarios. Also, if USCIS ever decides to construe adjudications of cases strictly, more denials will occur. Because the EB-5 law is not very clear aside from some basic requirements, you almost have to sacrifice the business side of the new commercial enterprise in order to satisfy the I-829 requirements.

Having said this, there have been some important improvements and efforts made by USCIS in the EB-5 area during the last 5 years, but not enough and not fast enough. Oh well, I sound like a broken record . . .

[Q] I invested over $1 Million USD in two coffee shops and one restaurant several years ago and obtained E-2 visa. I am operating two coffee shops via Corporation A, and one restaurant via Corporation B, both of which are owned by me 100%. Coffee shops created 3 new full-time jobs, whereas the restaurant created 9 full-time new jobs, even though $800,000 USD was invested in the two coffee shops, while $400,000 was invested in the single restaurant. Can I now form a holding company with two subsidiaries and apply for direct individual EB-5 case?

The relevant issue is as follows. Although it is permissible for the fund to be invested in different businesses and different businesses created different number of jobs, this holding company (to be considered a new commercial enterprise) is contemplated to be formed "after the fact", and the holding company did not exist at the beginning of the investment period. Therefore, my answer would be no.

If the holding company had been formed before the relevant facts have transpired and then the two subsidiaries were formed, received funds and then operated the respective businesses, then the answer would be "yes", but that's not the case here.

People might disagree on the answer, but in our opinion, USCIS denied a majority of I-526 petitions during this "black" period for EB-5 Program primarily for two reasons. First, they did not believe jobs were being created in the applicable region. Second, promissory notes were being used so that eb-5 investors were not investing that much money to begin with, i.e., often deposited around $125,000 of the requisite $500,000 USD and carried the remainder on a promissory note. Third, limited partnerships contained provisions stating that it would guarantee payments, etc.

Like any new program, there were some new programs that just "bent" the rules too much, and honestly, USCIS had also issued inconsistent or conflicting guidelines. This is why USCIS does not want to make the same mistake again and is now being very sensitive about making sure any guidance memos they issue are at least consistent and comply with their interpretation of the EB-5 statutes.

[Q] USCIS recently stated during June 2009 stakeholders teleconference that it is in the process of drafting and releasing several guidance memos on various important EB-5 issues. When will such guidance memos be released?

No one knows. We don't even think USCIS itself knows because they are very busy, and they need to think through very carefully before they release anything. Also, such guidance memos need to be reviewed by many USCIS officers and revised before they can be released. Based on how long USCIS took to release the first guidance memo -- the Neufeld memo of June 2009 -- we would not be surprised if it takes several years for next 3 or 4 guidance memos to be released. There is some chance that EB-5 statutes might be amended before then. :)

There is a regulatory provision which specifically prohibits a new commercial enterprise from non-commercial activity such as owning and operating a personal residence. Although legally speaking, you would be using the houses for commercial activities in housing your employees and customers, I would make sure not to count the houses in the capital amount of your investment. It would all depend on the individual examiner reviewing and adjudicating your I-526 and I-829 submissions, but spending 80% of the requisite investment amount towards the purchase of a house (used for whatever purpose) will not look good and raise suspicions all over the place.

Commercial enterprise

means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and its wholly-owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. This definition shall not include a noncommercial activity such as owning and operating a personal residence.

The word "new" in the context of "new commercial enterprise" is defined as any commercial enterprise formed after November 29, 1990. If the commercial enterprise is formed before this date, then to fall within the definition of "new", the existing, i.e., already-established commercial enterprise must be "restructured" or "expanded". No one is sure what is meant by "restructured"; therefore, proceeding through a "restructured" case is not recommended.

The "commercial enterprise" is defined as "any for-profit entity formed for the ongoing conduct of lawful business." Therefore, a limited partnership or corporation can and does qualify as a new commercial enterprise.

[Q] Does the amount of tax I pay during the 2-year CPR period affect my I-829? I ask this is because I'm planning to transfer the ownership of my current company abroad to one of my parents before I become a CPR.

No, the approval of I-829 and the U.S. tax obligations are two separate matters. Tax planning, where appropriate, is recommended in advance of obtaining CPR status.

We have no doubt that these cases will be scrutinized more closely from both security and lawful source angles, although there is no formal words from USCIS stating such; and I don't think USCIS will ever make such formal statements. Having said this, there is no prohibition on Iranian EB-5 cases and they are doable. Following links are relevant to Iranian EB-5 cases:

http://www.bis.doc.gov/policiesandre...tions/Iran.pdf

http://www.ustreas.gov/offices/enfor...ran/iran.shtml

Another helpful resource is: 31 C.F.R. Section 560 and Appendix A to part 560

[Q] Several years ago, I invested $1 MM in direct, individual EB-5 case. I filed I-829 and I believe it will be denied for fialure to create 10 full-time jobs because I only created 3 or 4 jobs. What can I do at this point?

Our advice is that you immediately sit down with your current EB-5 attorney or with another EB-5 attorney and figure out what are your options. Do not wait until you get a I-829 denial to do this because it may be too late by then: You will be deemed to be "out of status" upon your receiving a I-829 denial notice from USCIS, and this will prohibit you from applying for adjustment or change of status in the United States.

Go to www.eb-5center.com/eb-5_requirements to read an overview of the essential requirements of EB-5 case. Many articles helpful to your understanding of the EB-5 law are posted at "Easy as EB-5" section above.

[Q] Regional Center EB-5 has many Units for multiple investors. What are the restrictions imposed on the marketing of these Units (spots) to potential EB-5 investors. both within and outside the United States?

I am no expert on the U.S. Securities law, but the below is my understanding. Most, if not all, Regional Center EB-5 projects are offered or marketed to potential EB-5 investors without SEC and/or state registration requirements under either Regulation D or Regulation S exemptions, because such registration requirements are onerous. This means they can be (according to my understanding) offered to potential EB-5 investors as follows:

Within the United States: In reliance upon Rule 506 promulgated by the SEC, to only those persons who are deemed to be "Accredited Investors" within the meaning of Rule 501 promulgated by the SEC. Accredited Investor is defined as any person whom the issuer reasonably believes at the time of subscription to be:

  • any natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his purchase exceeds $1,000,000 USD;
  • or

  • any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of two most recent years, and has a reasonable expectation of reaching the same income level in the current year.

Outside the United States: In reliance upon Regulations promulgated by the SEC, only to those persons who are not "U.S. Persons" within the meaning of such Regulations. U.S. Persons are defined as any natural person "resident" of the United States. "Resident" presumably means who are not physically residing in the United States, and as such, non-immigrants will probably not qualify as "non-U.S. Persons".

Attorney named Jennifer Moseley appears to be very knowledgeable in this area, so we recommend that you talk to her.

[Q] Can I purchase an existing business by paying purchase price of $1 MM to owner or shareholder of the business, and then counting this $1 MM to meet the requisite investment amount, assuming of course, that I will create 10 new jobs?

I-526 can be filed based on the investment made in the past and requisite jobs created in the past, but those jobs must be maintained during CPR period. In some sense, with the jobs already created, USCIS might be more inclined to approve I-526 without any hassle.

Under the relevant regulation, EB-5 project (whether RC project or non-RC project) can involve a "troubled business".

Troubled business

means a business that has been in existence for at least two years, has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the twelve or twenty-four month period prior to the priority date on the alien entrepreneur's Form I-526, and the loss for such period is at least equal to twenty per cent of the troubled business's net worth prior to such loss. For purposes of determining whether or not the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

The regulations confer certain benefit(?) to an EB-5 project involving "troubled business", as follows:

(ii) Troubled business. To show that a new commercial enterprise which has been established through a capital investment in a troubled business meets the statutory employment creation requirement, the petition must be accompanied by evidence that the number of existing employees is being or will be maintained at no less than the pre-investment level for a period of at least two years. Photocopies of tax records, Forms I-9, or other relevant documents for the qualifying employees and a comprehensive business p lan shall be submitted in support of the petition.

The non-legal problem with an EB-5 project involving a "troubled business" is a negative connotation associated with the troubled business. Many potential EB-5 investors may say rightly or wrongly "I don't want to invest in an EB-5 project if it's troubled."

Also, certain undetermined issues related to "troubled business" EB-5 project is whether there must be 10 or more full-time jobs at pre-investment point of time. For example, if there were only 7 full-time jobs at the pre-investment point of time, can this qualify? What if 3 new full-time jobs are created in addition to maintaining 7 full-time jobs that pre-existed? As you can see, the questions remain.

[Q] I lawfully earned over $500,000 USD in the US, and that money is in my US bank acct. I also brought additional money from abroad. Do I have to show that these money brought from abroad was also lawfully earned?

The answer is No. If you had to show lawful source for all 100% of your entire assets, even Bill Gates would not be able to do that. Usually, the only thing that is required is for you to show that you lawfully earned the requisite investment amount for EB-5. Having said this, however, in limited cases, USCIS might ask for additional docs and proof; therefore, a careful planning might be required; and you should discuss in detail with your U.S. immigration attorney.

Pursuant to EB-5 law, an EB-5 investor must create 10 full-time positions. The regulations allow two part-time positions which qualify as "job-sharing" positions to combine and count as one full-time position. What is meant by such "job-sharing" arrangement?

"Job sharing" is defined as a form of part-time employment in which the schedules of two part-time employees are arranged to cover the duties of a single full-time position. For example, each job sharer may work a portion of the day or week.

Only in a limited circumstances can two part-time waiter/waitress positions be argued to fall under a "job-sharing" arrangement, but I guess one can try to make that argument.

Why do we believe that the above reg. is flawed? Because of the very fact that it is too hard to make a distinction between one regular part-time position and a "job-sharing" part-time position. No matter how you slice an apple, it's still an apple. In addition, 0.5 + 0.5 should equal 1.0. In other words, jobs are jobs, whether they are part-time positions or full-time positions.

We believe that it would make more sense to allow two part-time positions of the same job duties to be combined to count as one full-time position. For example, it does not seem to us to be unreasonable that two "part-time" waitress positions at the same restaurant where each is working 25 hours per week should be allowed to be combined to count as one "full-time" position for EB-5 purpose, regardless of whether they are in a "job-sharing" arrangement?

[Q] I understand that there was in the past a requirement that an EB-5 investor "establish" the New Commercial Enterprise, and that this requirement was done away with around 2002 that helped "revive" the EB-5 Program in general. Can you explain what this is all about?

Let's examine how this "establishment" requirement used to adversely affect both the regular, direct, individual EB-5 project and Regional Center EB-5 project.

In context of regular EB-5 project, the "establishment" clause meant that the investor could not just purchase an existing business even though the business was "new" -- that is, it was created after November 1990. This meant if the investor decided to acquire an existing business, he had to "materially" alter the business, so he could argue that he "established" a new business (or new commercial enterprise). This was the kind of requirement that prohibited bona-fide EB-5 projects to take place, because there is really no reason why you should discourage foreign EB-5 investors to invest in existing U.S. businesses.

In context of Regional Center EB-5 project, since the new commercial enterprise was usually a limited partnership or a like-kind legal entity into which the pooled moneys of individual EB-5 investors were invested, the requirement that an individual EB-5 investor(s) "establish" this Limited Partnership meant that such individual investors had to be the very individuals who initially set up and put in their investment at the beginning. This was totally contrary to the real-world commercial requirements, because in the real world, an incorporator establishes a corporation or limited partnerships and then goes about attracting investments from individual investors. Anyway, this is just one amendment which had to take place to make the Regional Center EB-5 Program work.

Therefore, this was a "hardware" amendments which were made to at least make the RC Program feasible, and some "software" improvements or changes were made, but more are supposedly underway. Of course, some people are concerned that these changes may not really be improvements but rather impairments. We just have to wait and see, but at least now, USCIS is more sensitive to the needs of EB-5 Program, but is vigilantly guarding against any RC Programs that are not bona-fide.

There is INS memo by Weinig, Acting Asst. Comm. Adjudications (Aug 5, 1992), reprinted in 11 AILA Monthly Mailing 776 (Oct. 1992) that says this is allowed. In practice, this should be no problem.

[Q] Let's say in a $100 Million USD project, $30 Million USD comes from foreign EB-5 investors seeking green cards, where as the remaining $70 Million comes from USC or green card holders or corporations. Let's assume 700 jobs are created in total (directly and indirectly). Can all 700 new jobs be allocated to the 60 foreign EB-5 investors only?

Yes, the regs specifically allow this. Here is the regulation on point.

Employment creation allocation. The total number of full-time positions created for qualifying employees shall be allocated solely to those alien entrepreneurs who have used the establishment of the new commercial enterprise as the basis of a petition on Form I-526. No allocation need be made among persons not seeking classification under section 203(b)(5) of the Act or among non-natural persons, either foreign or domestic. The Service shall recognize any reasonable agreement made among the alien entrepreneurs in regard to the identification and allocation of such qualifying positions.

[Q] My wife was the principal investor, and based on her I-526 petition approval, my wife, our children and I obtained CPR status. The time to file I-829 to remove conditional status is fast approaching. Can I still get permanent resident green card even though I am now divorced from my wife?

You should not lose your immigration status if you become divorced after having obtained CPR status, and the viability of I-829 does not depend on your divorce. In fact, the immigration regulations specifically state that "the former spouse of an entrepreneur, who was divorced from the entrepreneur during the period of conditional residence, may be included in the alien entrepreneur's petition [to remove conditions - Form I-829] or may file a separate petition."

[Q] My friend in Los Angeles owns a successful Chinese restaurant that was set up in 1999 with about 10 full-time and 5 part-time employees. He wants me to invest $1 Million USD to expand his restaurant, create new positions and split the profit. I saw the restaurant, and it seemed to be doing well. My question is: Can I go for $1 Million direct, individual EB-5 case based on the facts?

Yes, this issue was answered recently by USCIS in a liaison meeting minutes. See below copied content from this liaison meeting minutes on point. Basically, as long as you create 10 new, full-time positions (in addition and separate from the existing full-time positions), you can go for an EB-5 case. However, creating 10 new, full-time positions for an existing restaurant is easier said than done. And no, you cannot fire all the existing restaurant employees and then hire new employees to replace the existing employees who were let go. That comes close to a fraud. Of course, if there is a bona-fide business reason why the business being purchased did not have any existing full-time positions, then it would be permissible not to have any full-time employees at the time of purchase.

ii. Does Congress' deletion of the establishment requirement in 2003 (which did away with the requirement that the alien entrepreneur personally establish the commercial enterprise) mean an EB-5 investor can purchase an existing business that was created after November 1990 (meaning the commercial enterprise is "new"), as long as job requirements are met, without having to restructure the commercial enterprise? Section 22.4(h) of the Adjudicator's Field Manual seems to suggest this interpretation.

Response: Yes, an alien may demonstrate that a new commercial enterprise has been established by proving that it was established after November 29, 1990. In such cases, the alien does not need to further restructure, reorganize, or expand the business in order to meet the requirements of 8 CFR, 204.6(h).

The first requirement of any investor after they receive the visa at the United States overseas consulate office is to enter into the United States within 180 days of visa issuance from the consulate. The investor must then establish residency in the United States. Evidence of intent to reside includes opening bank accounts, obtaining a driver's license or social security number, paying state and federal income taxes, renting or buying a home. The United States resident may work overseas if required based upon the nature of the business or profession. For those permanent residents living outside the U.S., we suggest the investor and family re-enter the U.S. no less than once every six months. The longer the investor and family are present in the U.S., the less likely the government is to claim that the investor "abandoned" the United States as a permanent residence – thereby endangering his green card status. In some cases, investors may seek the issuance of a "reentry permit" which allows the Investor permission to remain outside the U.S. for as long as two years without having to reenter the country to maintain permanent resident status.

An accredited investor is a term defined by various security laws that describes investors permitted to invest in certain types of higher risk investments, limited partnerships, hedge funds and angel investor networks. In the U.S. an individual is considered to be an accredited investor if they have a net worth of at least $1 million US dollars or have made at least $200,000 US dollars each year for the last two years ($300,000 with spouse if married) and have the expectation to make the same amount in the current year.

See below for recent change:

Dodd-Frank Act makes immediate changes to accredited investor standard in private placements

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the Act) was signed into law on July 21, 2010. The Act modifies the net worth standard for an “accredited investor,” authorizes the SEC to review and adjust “accredited investor” standards as they apply to individuals and prohibits the offer or sale of securities under Regulation D by certain “bad actors.”

Immediate Change to Net Worth Standard for Accredited Investors

Effective July 21, 2010, the date of enactment of the Act, Section 413(a) of the Act changed the net worth standard for an individual accredited investor to exclude the value of the individual’s primary residence. The net worth threshold for an accredited investor remains $1 million, either individually or jointly with a spouse; however, individuals are no longer permitted to include the value of their primary residence for purposes of reaching the $1 million net worth standard. The SEC recently provided guidance, in a July 23, 2010 Compliance and Disclosure Interpretation, that the amount of any indebtedness that is secured by a primary residence up to the value of the residence should also be excluded in determining net worth, but any such indebtedness in excess of the value of the residence should be considered a liability and deducted from an individual’s net worth.

This change affects the definition of an accredited investor for Regulation D offerings.1 Rule 505 of Regulation D permits sales to be made to an unlimited number of accredited investors and up to 35 non-accredited investors as long as the size of the offering does not exceed $5 million. Rule 506 of Regulation D permits sales to be made to an unlimited number of accredited investors and up to 35 financially sophisticated non-accredited investors without any limit on the size of the offering. In either case, substantial disclosure must be provided to non-accredited investors.

The $1 million standard (excluding a primary residence) remains fixed for four years following the Act’s passage. After the initial four-year period, the SEC may further adjust the accredited investor net worth standard.

Given that the change was immediately effective on July 21, 2010, any issuer conducting a private placement under Regulation D or Section 4(6) should revise its subscription documents to incorporate the new net worth standard.

Subsequent Review and Adjustment by the SEC

Discretionary Review and Adjustment of Accredited Investor Standards. The Act authorizes, but does not require, the SEC to review its accredited investor standards, as applicable to individuals, to determine whether the standards should be adjusted for the protection of investors, in the public interest or in light of the economy. Currently, an individual is an accredited investor if he or she had an income above $200,000 individually or $300,000 jointly with a spouse in each of the two previous years, as well as a reasonable expectation of maintaining those income levels, or a net worth (individually or jointly with a spouse) of at least $1 million. The Act authorizes the SEC to adjust these income and net worth standards for individuals, except that the $1 million net worth standard (excluding the value of a primary residence) may not be adjusted until four years after the date of enactment. This change applies to the accredited investor standard as applicable to both Section 4(6) and Regulation D offerings.2

Adjustments for Inflation. Although the Act does not specifically address this point, any review by the SEC of the accredited investor standards for individuals may consider that the income and net worth have not previously been adjusted to account for inflation. The $1 million net worth and $200,000/$300,000 income standards were established in 1982. If the accredited investor income standards were fully adjusted for inflation, the required annual income currently would be approximately $449,000 individually and $674,000 jointly with a spouse, and the net worth standard would be approximately $2.25 million. Such an adjustment would, of course, significantly reduce the number of persons who qualify as accredited investors. At this point it is unclear whether the SEC will adjust for inflation, and, even if it does, whether it would set standards to account for the full effect of inflation since 1982.

Prohibition on Offering or Sale of Securities by Certain “Bad Actors”

The Act requires the SEC, not later than one year after the Act’s passage, to issue rules disqualifying any offer and sale of securities under Regulation D by certain “bad actors.” The new rules disqualifying such “bad actors” from Regulation D exempt offerings must be substantially similar to the disqualifying provisions of Rule 262, and must disqualify any offering of securities by a person that (1) is subject to a final order barring the person from engaging in the business of securities, insurance or banking; (2) is subject to a final order that is based on a violation of any law or regulation prohibiting fraudulent, manipulative or deceptive conduct within the ten years prior to the new offering; or (3) has been convicted of any felony or misdemeanor in connection with the purchase or sale of any security or involving false filings with the SEC. Rule 262’s disqualification provisions cover directors and officers of an issuer and beneficial owners of 10% or more of any class of equity securities of an issuer.

SEC Review of Regulation D Offerings Not Required

The Act as signed into law does not include a provision, contained in an earlier version of the bill, that would have required the SEC to review Regulation D offerings. A prior version of the bill would have mandated SEC review of Regulation D offerings and given the SEC 120 days to complete its review. If the SEC did not complete its review within 120 days, the securities being issued would lose their exempt status and would become subject to state securities laws. The final Act does not contain the proposed Regulation D review requirements.
http://www.lexology.com/library/detail.aspx?g=2786cfd0-c190-4ece-b8f7-e7...

There are specific risk factors for each limited partnership, which are included in the offering materials for the limited partnership. Risk factors differ for each partnership but general risks include economic conditions, failure to meet job requirements and denied immigration status under the USCIS EB-5 Immigrant Visa Program.

The above risks are set forth in standard language, similar to the risk disclosure whenever you purchase mutual fund, etc.

Sure. A limited partnership, used by most Regional Center EB-5 project as a New Commercial Enterprise, is a business organization with one or more general partners, who manage the business and assume legal debts and obligations, and one or more limited partners, who are liable only to the extent of their investments. Limited partners also enjoy rights to the partnership's cash flow, but are not liable for company obligations.

No, unlike the Canadian Investor Immigrant Program, the EB-5 investor is not required to have any prior business experience. Likewise, the investor is not required to demonstrate any minimum level of education. The only requirement for the investor is that he or she has the required net worth and capital and prove that the funds are legal, through proper documentation.

The EB-5 program allots 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least ten (10) full-time jobs for U.S. workers. Three thousand (3,000) of these immigrant visas are set-aside for aliens who invest through regional centers. But it should also be noted that additional 3,000 of these immigrant visas are set aside for aliens who invest in TEA area.

Yes, but all CPRs or LPRs are subject to certain parameters of being away from the U.S. for a prolonged period of time. Therefore, you should discuss with your U.S. immigration attorney in detail your need to travel outside the U.S. after you acquire CPR status.

I don't know if it's such a good idea for friends to go into a business together, but even if each of you invest the required amount, each of you also must create the requisite jobs -- meaning each of you must create 10 full-time jobs. As long as you can do that, both of you can process EB-5 cases.

Legally speaking, the regs say the requisite employment must be created within the two-year period immediately following the investor acquiring conditional permanent resident (CPR) status. However, for practical purposes (and in our opinion, the only logical interpretation) is that the requisite jobs must be created by the time I-829 is reviewed, or if USCIS allows in its discretion, within "a reasonable period of time therefrom". In our opinion, the two years definitely is not from the submission or approval of I-526 petition, because that would lead to a totally incongruous results, because CPR acquisition date definitely does not equal the I-526 submission or approval date. Some sort of "reasonable" interpretation must be applied to any statutes and regulations. This is not to say that some portions of EB-5 statutes and regulations are unclear; they are unclear, and read literally, leads to an unworkable results.

The problem might have been created by sometimes inconsistent interpretations of the statutes and regulations utilized by USCIS. An argument can be made that USCIS appears to ignore the literal languages of the statutes and regulations, while at other times, USCIS appears to apply the literal language. This is okay, as long as there is an over-arching philosophy or objective behind where the EB-5 Program should be headed, but often, the principals of USCIS governing EB-5 Program changes. It is sincerely hoped that more consistent, reasonable and practical interpretations of relevant statutes and regulations be applied and implemented by USCIS examiners. After all, it's the examiners who decide each individual I-526 and I-829 cases, not the policy-makers or Congressmen.

No, but your relative or friends can fill the positions, as long as the positions are bona-fide positions, and they really will be working.

"New" means any for-profit entity established after November 29, 1990. For practical purposes "new commercial enterprise" can take any one of four forms: 1) the creation of new business; 2) the purchase of an existing business, which is reorganized to form a new enterprise (you don't want to try this!); 3) the expansion of an existing business; or 4) the saving of a failing business.

Note that the new commercial enterprise entity and the job-creating entity may differ, depending on investment structure of a particular EB-5 project.

Legally, you can show that you have invested or be in the process of investing, but in the latter case, you have to prove availability of the funds and an actual commitment of the required fund. Therefore, it is a lot more difficult route that you should avoid in all cases.

Although both statutes and regulations are silent on this point, the AAO has held, however, that construction jobs do not qualify for direct job creation, but USCIS has stated that it is willing to allow the indirect and induced job creation from construction jobs in EB-5 regional center cases, but of course, not in direct, individual EB-5 case.

The practical difficulty in counting direct, construction jobs is that often these jobs are not full-time and are independent contractors of sub-contractors. Perhaps a certification letter from the General Contractor overseeing the entire project might work for I-526 purpose, but it might be very hard to get all documentation needed to prove Direct jobs at I-829 stage.

The advantages of Regional Center EB-5 (the "RC EB-5) case over E-2 visa are:

1. Since E-2 is a nonimmigrant visa/status, obtaining E-2 does not lessen the need to obtain permanent resident status.

2. With RC EB-5 case, you can reside anywhere in the U.S., whereas with E-2 visa, you have to reside near the location of your E-2 business.

3. With E-2 dependent children, once they become 21 years old, they automatically fall out of E-2 status. This means they have to, on their own, apply for other NIV status -- usually F-1 student status. With RC EB-5 case, as long as the I-526 petition was submitted prior to their reaching 21 years of age, the dependent children's ability to obtain LPR status will not be adversely affected.

4. RC EB-5 Investor does not need to exert energy towards the day-to-day or even primary managerial control over the new commercial enterprise.

5. RC EB-5 Investor can pursue other jobs and/or activities, whereas for E-2 Investor, that is pretty difficult in practice.

6. In many cases, the amount of investment is not a lot. Many E-2 business investment requires more than $300,000 USD and even close to $500,000 USD, which is the same amount that RC EB-5 case that also combines TEA feature.

7. With RC EB-5, there is rarely a need to contribute additional capital infusion, but with E-2 investment, additional capital infusion may be required depending on the business situation.

8. There is a greater chance to fail in E-2 investment than with RC EB-5, at least from our perspective.

The bottom line is this. E-2 may seem like a great deal, but if the business doesn't do well, the business dream of being an E-2 Investor may turn into a nightmare.

No, under the EB-5 law, investor and family members cannot be included in the 10 full-time jobs to be created. Also, only CPR, LPR or USC workers qualify, meaning someone who is on F-1 visa cannot be included in the 10 new positions.

The "EB-5 law" is a term of convenience and has a broad meaning. It refers to the law governing EB-5 under the U.S. immigration law system. This means appropriate immigration statutes must be examined, then immigration regulations promulgated pursuant to these statutes, then agency rules, Department of State or consular regulations, as well as USCIS guidances. The term also includes precedent Administrative Appeals Office (AAO) on EB-5 cases, as well as some federal court cases deciding on some key issues of EB-5 law. Furthermore, the term also includes what is "understood" to be allowed and disallowed by USCIS EB-5 Headquarters. At this time, the USCIS is trying to make their positions more clear on various material issues related to EB-5 projects.

Therefore, sometimes it is a challenge for even an an experienced U.S. immigration attorney to keep up with all the nuances and developments within the EB-5 area.

Under the EB-5 law, the EB-5 project has to be either Targeted Employment Area or Rural Area, to permit only $500,000 USD investment. Definitions of these terms are as follows:

Rural area

means any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more.

Targeted employment area

means an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 per cent of the national average rate.

Since the TEA concept includes rural area concept, the simple answer is that the EB-5 project has to be a TEA area project. Note being a Regional Center EB-5 project has nothing to do with the amount of investment required; it has to do with the way the requisite jobs can be created.

Under the EB-5 law, the principal applicant's spouse and the children who were under 21 years of age at the time I-526 immigrant petition was received by USCIS office can obtain CPR and LPR status.

It should be noted that even in case of the principal applicant's death or divorce, the dependents can obtain permanent resident status assuming all conditions, such as job-creation, are met.

Not at all. Since under the EB-5 law, an EB-5 project located in the Targeted Employment Area (TEA) or Rural Area (RA) legally requires only $500,000 rather than the $1 Million USD required in the regular EB-5 project, there are no advantages and disadvantages resulting from the investment amount.

No, EB-5 law does not allow corporations or companies to apply because permanent status can only be given to individuals. Also, the money cannot come from a corporation or company, even though the individual may be the 100% shareholder in the company.

[Q] During the conditional resident status, if I, the principal applicant/investor give up or get taken away such conditional resident status by USCIS/CBP, does this affect the same conditional resident status of my dependent family members?

If you are the principal investor and applicant, and then you abandon or get taken away your conditional green card status during the CPR period, then your dependents will also be deemed to have lost their conditional green cards. However, after "permanent" green cards are obtained, one family member's loss of permanent green card status has no adverse effect on the other family members' permanent green card status.

The Canadian Investor Program does not require job-creation, and either the federal program or the regional government guarantees the return of the investment, so there is less risk. However, the Canadian Investor Program requires previous management experience and additional eligibilities of the applicant and takes longer to immigrate under than the U.S. counterpart. The Canadian Investor Program also gives a permanent green card straight away.

The significance of an EB-5 project being located in a Rural Area is that the required investment amount is only $500,000 USD, not $1 Million USD. Therefore, if a particular EB-5 project is located in either TEA or Rural Area (RA), then the required investment amount is only $500,000 USD.

Rural Area (RA): An RA is a geographic area situated outside a metropolitan statistical area, or an area which is part of the outer limits of any city or town with a population of 20,000 or less. In a less densely populated state, an approved statewide probably holds both TEAs and RAs.

TEA is commonly referred to both TEA and RA interchangeably. As the Targeted Employment Area signifies, it's an area where the job-creation is more needed than other areas either because of the 150% or higher unemployment rate or because the area is a Rural Area. The problem with the projects being located in a Rural Area rather than TEA area is that it's hard to create EB-5 projects involving large companies on a continuous basis mainly because there are lack of large demand markets.

It's refers to either a rural area or a geographical area that has experienced unemployment rate of at least 150% of the national average unemployment rate. Of the 10,000 immigrant visas available for investors, 3,000 are set aside for TEA EB-5 cases. In the regulations, TEA is defined as:

A TEA is a geographic area or political subdivision set within a metropolitan statistical area OR inside a city or town with a population of more than 20,000 and an unemployment level at least 150 percent of the national unemployment rate. Governors identify and designate TEAs within a state (except the District of Columbia , where the mayor makes the designation). A typically seeks to include one or more TEAs, which within a large city are those delineated census track areas, identified according to measured population unemployment rates within these locations.

The significance of TEA is that only $500,000 USD investment is required instead of $1 Million USD investment.

[Q] I heard it's important to submit I-526 immigrant petition before one's child turns 21 years of age. Why is that?

That is true only where the subject child wishes to immigrate as a dependent child of the principal alien investor. However, if the child wishes to apply as the principal alien investor, then it does not matter whether the child exceeds 21 years of age.

To clarify, it's important that the I-526 petition be received at an appropriate USCIS office before the dependent child wishing to immigrate together turns 21 years old.

It stands for Employment-based 5th category. Under the U.S. immigration law, there are five different categories of immigrating through employment-based avenues, and since EB-5 deals with employment-creation, it's been designated as the 5th category of Employment-based methods of immigrating. EB-5 is also commonly referred to as Investor Green Card or Investment Green Card.

No, under the EB-5 law, an individual investor can individually invest in only for-profit entity, such as a for-profit limited partnership entity. In the context of a regional center EB-5 project, however, an individual investor (usually along with numerous other individual investors) may invest in a for-profit limited partnership enterprise, which in turn can loan the money to a non-profit entity, such as a quasi-governmental development agency, creating jobs.

[Q] Does EB-5 law require that the investor and/or family members live close to where the EB-5 project is located?

The answer depends on whether the investor has participated in a Regional Center project or Direct Individual EB-5 case. Although there is no specific legal provision on point, it is understood that for Regional Center project, an investor (who acts as a limited partner in a Limited Partnership) or his family members do not need to live in the same area of the Regional Center EB-5 project. But in the latter case, where the investor is taking part in the day-to-day management of the business, the investor will probably have to live in the same geographic area.

You can go to the "Easy as EB-5" section in this site, which has been specifically created for laymen who wish to obtain solid understanding of EB-5 law and requirements. You can click: www.eb-5center.com/easy_eb-5.

[Q] I know Regional Center and Targeted Employment Area (TEA) concepts are separate and different concepts. What types of EB-5 projects can result from an interplay between these two concepts?

Yes, Regional Center and Targeted Employment Area (or Rural Area) are two different concepts. The following four types can result from an interplay between these two concepts:

1. Regional Center and TEA/RA project -- that is a project in which 10 positions can be created indirectly and also requires only $500,000 USD investment instead of $1 Million USD investment.

2. TEA/RA project that is not a regional center -- that is the project requires only $500,000 USD investment but requires Direct job-creation of 10 new positions.

3. A Regional Center project that is not TEA/RA -- that is $1 Million USD investment is required but the requisite jobs can be created Indirectly.

4. A project that is neither Regional Center nor TEA/RA -- that is $1 Million USD investment is required and the requisite jobs must be created Directly.

Obviously a good project that falls within the Type 1 category is the best from an EB-5 investor's point of view.

[Q] I heard often that practically speaking, a regular, direct investment EB-5 case may have a difficult time meeting the 10 full-time direct job-creation requirement. Is this true, and if yes, what are some of the reasons?

Practically speaking, it is often true, for the following reasons:

1. Direct EB-5 case requires the creation of requisite jobs directly. This means the business has to create ten new (not existing) jobs directly. This is easier said than done.

2. Often, businesses set up are very sensitive to economy, and enough positions may not be created.

3. Often the required jobs may not be created by the time I-829 is adjudicated, since if it involves a new business that is often a small business.

For the above reasons, many people are choosing Regional Center Program over regular, direct EB-5 case.

Yes, in theory and practice. For example, there are several EB-5 Programs in Washington state and Washington, DC geographic areas. For example, in NY, CA and Florida, there are many regional centers doing similar types of projects in the same regions.

[Q] If the project offering documents or the project Limited Partnership includes a provision which states that the fund will be returned in the event of I-829 denial, is this allowed under EB-5 law?

No, USCIS recently made it clear through an official statement that this kind of arrangement will not be allowed. The released statement reads:

If your clients have pending I-526s at a USCIS Service Center or have had approved I-526s returned by NVC that contain subscription agreements that promise to return their investment if their I-829 is denied then the subscription agreement needs to be amended. That wording has been deemed to constitute a redemption agreement and such an agreement is prohibited.

The above statement makes it clear that such provision will be deemed to constitute a redemption agreement and will be prohibited.

As of January 29, 2009, there are around 30 designated Regional Centers which have been approved by USCIS to put together EB-5 projects which comply with the parameters of their approved Regional Center. Note however that many of the Regional Centers are relatively new, and many of them have scant track records, and some have not even completed a successful project, let alone have any records of successful I-829 conditions removal cases. Therefore, selecting a suitable regional center and a suitable EB-5 project, in itself is an important and difficult task to a layman. Of course, our opinion is a smart and practical layman might do a better job than a lazy and dumb professional any day (see what happened to the Wall Street), but a helping hand of an experienced and capable professional in the U.S. immigration field will probably help.

Just like cars, there are better known car companies and lesser-known car companies; but a lesser-known car company does not mean its car is not suitable for you or vice-versa. However, having said this, cars and regional center programs are not the same types of products.

Yes, under the U.S. immigration law, a conditional permanent resident has the same rights and obligations as the "permanent" resident. See below regulation.

Sec. 216.1 Definition of conditional permanent resident.

A conditional permanent resident is an alien who has been lawfully admitted for permanent residence within the meaning of section 101(a)(20) of the Act, except that a conditional permanent resident is also subject to the conditions and responsibilities set forth in section 216 or 216A of the Act, whichever is applicable, and § 216 of this chapter. Unless otherwise specified, the rights, privileges, responsibilities and duties which apply to all other lawful permanent residents apply equally to conditional permanent residents, including but not limited to the right to apply for naturalization (if otherwise eligible), the right to file petitions on behalf of qualifying relatives, the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed; the duty to register with the Selective Service System, when required; and the responsibility for complying with all laws and regulations of the United States. All references within this chapter to lawful permanent residents apply equally to conditional permanent residents, unless otherwise specified. The conditions of section 216 of the Act shall not apply to lawful permanent resident status based on a self-petitioning relationship under section 204(a)(1)(A)(iii) , 204(a)(1)(A)(iv) , 204(a)(1)(B)(ii) , or 204(a)(1)(B)(iii) of the Act or based on eligibility as the derivative child of a self-petitioning spouse under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act, regardless of the date on which the marriage to the abusive citizen or lawful permanent resident occurred. (Amended 5/23/94; 59 FR 26587 ) (Amended 3/26/96; 61 FR 13061 )

[Q] Under the U.S. immigration law, is there any other immigration classification which requires an applicant to have to go through conditional residence status before obtaining "permanent" residence status?

Yes, an applicant is required to first go through the conditional residence status when the alien applies for green card based on his or her marriage to a U.S. citizen. For example, if an alien marries a U.S. citizen in May 2009 and interviews for immigrant visa let's say in December 2009, the alien will be given conditional residence status. Just like EB-5 category, the alien will have to apply for "permanent" residence status or often referred to as "conditions removal" 21 ~ 24 months after the acquisition of conditional permanent residence (CPR) status.

The CPR status in context of EB-5 case is necessitated by the real world constraints that the applicant show that his or her investment has been maintained for some time and also necessary job-creation has taken place. USCIS is justifiably trying to prevent a situation where an applicant invests and then pulls out the investment right after obtaining green card.

EB-5 Processing & Procedures (82)

FAQs on step-by-step procedures involved in all phases of EB-5 processing

Regarding tabs, USCIS issued a useful instruction as follows:

Question 1: The perennial question regarding tabs versus colored dividers has resurfaced. We would appreciate your thoughts on best practice in terms of both the lockbox, and direct filings at the Service Center. The USCIS website indicates that tabs should be placed on the bottom of the packet; however, during a recent stakeholder meeting, USCIS indicated that such tabs would be removed and that USCIS preferred colored paper instead (AILA Doc. No. 12031666).

Question 1a: Please clarify whether USCIS prefers tabs or colored paper.
Response 1a: For direct filings with the Service Center, we prefer that applicants submit documentary evidence using bottom tabs. For filings with the lockbox, it is preferred that colored paper dividers be used. The lockbox process involves scanning each page in the package, which means disassembling packages (except I-140 tabbed supporting documents, which will not be disassembled or scanned. For premium filed I-140 documents filed directly with the Service Center, tabs may be used.)

USCIS has answered on this issue that under the USCIS regulations, after I-829 denial, the regulations mandate that NTA "shall" be issued, so they have no choice. Of course, very often, USCIS can take long time before issuing NTA.

Depending on the facts and the reason for the denial, you can win on the removal proceedings. Therefore, we encourage you to consult with an experienced immigration attorney.

This notation stands for "Conditional Resident I-89 form". I-89 form was a white data collection form previously used by USCIS on which fingerprints and signature was collected AFTER I-485 or I-751 or I-829 was approved. Now days, USCIS does not use I-89 data collection form but instead captures necessary information through ASC biometrics procedure. However, it appears that USCIC automatic email notifications still contain "CRI89" references causing confusion.

It is a procedure allowed by USCIS whereby a regional center submits, in a form of an amendment to the regional center designation -- I have no idea why USCIS should consider a new project as an amendment of the designated RC when all one is asking is to confirm that the proposed EB-5 project falls within the parameters of the approved RC designation and complies with the EB-5 law -- for a pre-approval of a particular EB-5 project the regional center will embark on in a very near future. This procedure was set up by USCIS to give some consistency and shorten adjudication time frames for I-526 petitions filed in connection with a particular EB-5 project. Supposedly, if CSC gives a pre-approval of the EB-5 project to be embarked upon, all project-related issues would be deemed to have been approved, and only investor-related issues, such as lawful source issues, would need to be reviewed and decided by CSC examiners. This would supposedly lead to shorter processing times for I-526s. [Note we are talking about the pre-approval where there is no material change (or misrepresentation) in the project or project documents from the time the pre-approval is issued to I-526 filing date. If there is any material change, we would be the first one to say that USCIS has the right to question the project at the time of I-526 review even if the project obtained a pre-approva.]

However, this is not the way things are turning out. Read the below article written by another EB-5 practitioner regarding this issue:

http://eb-5center.com/node/963

Something has to be done by USCIS/CSC to address and fix this so-called "pre-approval" procedure, because it is not a "pre-approval" at all.

However, another former insider offered his perspective on this issue.

The idea for an exemplar I-526 came from EB-5 Stakeholders. USCIS did not want to do it. It was pushed on to USCIS via political lobbying and pressure from EB-5 stakeholders and their Congressional supporters.

The idea is to allow a Regional Center to file an exemplar I-526 as an I-924 amendment because a RC cannot file an I-526. Only an alien investor can file an I-526. Rather than ask an investor to be a test case and risk denial, the RC files the I-924 which is NOT a visa petition and therefore is not subject to a showing of "eligibility at time of filing". Once the underlying plans and standardized transaction documentation is fully EB-5 Compliant and fully vetted by USCIS, the RC can market the package as vetted and compliant with a specific notice from USCIS for that package of prima facie evidence of eligibility. The exemplar is not tied to an actual EB-5 priority date so the substandard documents can be changed and it is not an impermissible material change no matter how huge the changes that are made prior to real I-526s being filed en masse by investors.

The problem comes from RC sponsors and foreign agents who have misrepresented it as a "sure thing" and then they either have altered the documents to fall out of legal compliance through illegal and unethical "bait and switch" tactics or the actual project runs into problems or simply fails outright.

However, if the following is indeed what happened, USCIS did not do a good job of making its position clear. Many RC sponsors and EB-5 practitioners, who are outsiders to the internal goings on at USCIS, had no idea on how USCIS viewed the "pre-approval" procedure. [For example, we participated in all USCIS sponsored EB-5 teleconferences, and we had absolutely no idea that this was how USCIS viewed the pre-approval procedure!] In addition, if RCs knew that this is how USCIS viewed the pre-approval procedure, many of them would not have obtained the pre-approvals for their projects -- indeed many EB-5 practitioners would not have recommended RCs to go for the pre-approvals -- in the first place.

Everyone is right and wrong on this one, simply because it's unpredictable how long CSC will take to decide I-526 cases, even when there has been a pre-approval on the project. Many EB-5 practitioners have a valid point in asking what is the point of the "pre-approval" if one cannot rely on the pre-approved project.

Based on our experience and other EB-5 practitioners, I-526s adjudication time frames range from 1 month to over 14 months: that's correct, 14 months after the submission. Of course, when a RFE is issued, it will delay the adjudication. However, even after RFE response has been submitted, CSC can take anywhere ranging from one month to 7 months from the time of RFE submissions.

Again, based on our experience and other EB-5 practitioners, we would say that it's not infrequent that I-526 adjudication time frame goes over 8 months. Many U.S. companies and EB-5 practitioners complain that a good project can get killed waiting for I-526s to get approved.

Some EB-5 practitioners also say that whenever there is some issue the examiner does not understand or like, for whatever the reason, your I-526 can sit there very, very long time, until CSC examiner talks to whoever they have to talk to and decide. [They also think luck plays some part in which CSC examiner looks at your case.]

Also, if CSC can deny and then certify the denied I-526s to AAO for its review and decision. And whenever the case goes up to AAO on certification after CSC denies it, it's pretty much a death knell, as we have not come across any reversal by AAO in the history of the EB-5 Program. And many EB-5 practitioners know that AAO is very, very good at finding a way to deny a case that's been certified. And it's very hard to take I-526 denials to the federal court level, simply because investors do not want to wait around any longer; they rather get their money back and do another EB-5 project.

In conclusion, whenever I hear an EB-5 project say their I-526s are being approved in less than 2 months, I say to myself "I had I-526s approved in less than a month, so no big deal", but I know that won't continue; and whenever I hear someone's I-526 has been pending for over 14 months, I believe it.

The only predictability is no predictability when it comes to EB-5 case adjudication; and that's sort of problematic.

P.S. In fairness to CSC and trying to be as accurate as we can, we would say around 50% of I-526s get adjudicated within 7 months.

Personally, I am not a big fan of this course of action or anyone telling potential EB-5 clients to consider doing this. There are many reasons for my stance, but let me give you a few reasons. First, in all likelihood, there will not be sufficient time to accomplish your objective on a tourist visa. Second, it's not guaranteed that your I-526 will be approved. Currently, USCIS is denying or delaying adjudicating I-526s often for reasons that are not really justified under the EB-5 law. Well, let me put it this way: one can always come up with a way to deny I-526s if one wanted to. Third, it's better to not rush things by moving your family before I-526 is approved and immigrant visas are obtained.

Therefore, my advice for someone currently residing at a home country is to start and finish your I-526 and consular processing in your home country before entering the U.S. with conditional green cards.

See here:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176...

Direct Email Communication with EB-5 Regional Center Applicants
Questions and Answers

Introduction
U.S. Citizenship and Immigration Services (USCIS) is implementing the first phase in a series of proposed enhancements to the EB-5 program. Beginning today, Form I-924 applicants will be able to communicate directly with USCIS adjudicators via email in an effort to streamline the process and quickly raise and resolve issues and questions that arise during the adjudication process.

The EB-5 Program, also known as the Immigrant Investor Program, is designed to stimulate the U.S. economy through job creation and capital investment by foreign investors. Form I-924 is the Application for Regional Center under the Immigrant Investor Pilot Program.

Questions and Answers
Q1. What are the goals of direct email communication between USCIS and Form I-924 applicants?
A1. Direct email communication is a customer-service tool to enhance communication between USCIS and Form I-924 applicants. Form I-924 applicants may email USCIS questions regarding pending applications, including questions related to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) issued by USCIS. USCIS may email Form I-924 applicants to informally ask for clarification on certain issues to facilitate review, understanding and adjudication of the application. USCIS may also send a courtesy copy of an RFE or NOID to the email address listed on the I-924 and, if applicable, to the email address listed on the Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, associated with the application.

Q2. How will the direct email communication process work?
A2. Form I-924 applicants with pending applications will be sent an email with a unique identifier and a specific email address to use when corresponding with USCIS. Once assigned an email address, applicants may use this contact information to send and respond to emails to discuss—either informally or through the RFE or NOID process—issues raised in their regional center applications. An applicant will receive an email with instructions shortly after his or her Form I-924 application is accepted by USCIS for filing.

The direct email communication process is only available to entities that have a pending Form I-924 application. It is not available to regional center promoters who have pending regional center applications that were filed prior to the implementation of Form I-924 on Nov. 23, 2010.

Q3. Will USCIS use email to issue RFEs and NOIDs, and can Form I-924 applicants use email to provide evidence in response to such notices?
A3. USCIS may email a courtesy copy of an RFE or NOID to Form I-924 applicants and, if applicable, to attorneys or representatives of record listed on the Form G-28 associated with the application. However, applicants may not formally respond to an RFE or a NOID via email.

If an RFE or a NOID is issued in regard to a Form I-924 application, USCIS will follow standard procedures and will mail a hard copy of the RFE or NOID to the address listed on the Form I-924 or, if applicable, to the attorney or accredited representative listed on a valid Form G-28.

USCIS cannot accept an applicant’s formal response to a RFE or NOID via email. Once an applicant is ready to submit the formal response to an RFE or NOID to USCIS, he or she should follow the response submission instructions provided on the RFE or NOID.

Q4. How will USCIS ensure that the attorney or accredited representative listed on the Form G-28 is included in email communication between USCIS and the applicant?
A4. USCIS can only communicate via email with counsel representing a Form I-924 applicant if the associated Form G-28 includes a valid email address for the representative. If a valid email address is not provided in the Form G-28, the attorney or accredited representative should provide USCIS with an updated Form G-28 that includes a valid email address. This updated Form G-28 should be sent as a PDF to USCIS’s general EB-5 mailbox at uscis.immigrantinvestorprogram@dhs.gov. An original, fully executed Form G-28 will also need to be mailed to USCIS for inclusion in the Form I-924 application.

Q5. Can the direct email communication process be used to discuss issues regarding individual Form I-526 and Form I-829 petitions or other EB-5 issues not directly related to a pending Form I-924 application?
A5. No. The direct email communication process is solely for discussing issues regarding pending I-924 applications. It is not a forum for general policy and legal questions about adjudicative procedures or decisions, or for questions relating to Form I-526, Immigrant Petition by Alien Entrepreneur; Form I-829, Petition by Entrepreneur to Remove Conditions; or Form I-290B, Appeals or Motions.

USCIS will not respond to emails received concerning issues unrelated to a currently pending I-924 application. For more information about how to make other EB-5 inquiries, visit the EB-5 Inquiries page on the USCIS website at www.uscis.gov.

Q6. What if an applicant has questions about his or her Form I-924 after it has been adjudicated?
A6. Applicants may contact USCIS with other questions regarding the EB-5 Program at uscis.immigrantinvestorprogram@dhs.gov.

The regulation governing I-829 conditions removal, 8 CFR 216, reads:

(3) Physical presence at time of filing . A petition may be filed regardless of whether the alien is physically present in the United States. However, if the alien is outside the United States at the time of filing, he or she must return to the United States, with his or her spouse and children, if necessary, to comply with the interview requirements contained in the Act. Once the petition has been properly filed, the alien may travel outside the United States and return if in possession of documentation as set forth in Sec. 211.1(b)(1) of this chapter, provided the alien complies with the interview requirements described in paragraph (b) of this section. An alien who is not physically present in the United States during the filing period but subsequently applies for admission to the United States shall be processed in accordance with Sec. 235.11 of this chapter.

It's very important to notify USCIS of your address change via online address change notification method and filling out and sending in AR-11 address change form for EACH individual family member.

Most criticisms seem to echo the following:

1. CSC seems to be applying a stricter standard than the "preponderance of evidence" standard (more likely than not) to adjudicate EB-5 petitions.

2. CSC does not seem to appreciate or understand the broader meanings behind the four precedent AAO cases. For example, Matter of Ho requirement for a business plan specifically states that a business plan will vary according to the type of business or industry, and many aspects of the business plan described is applicable to a small non-regional center business.

3. USCIS policies governing new issues that come up seems to treat past cases unfairly and retroactively. USCIS' setting new policies to deal with prospective cases is fine, but USCIS should deal in a fair manner with past cases which were adversely impacted by USCIS' new policies.

4. There seems to be no forum to discuss changes that are needed to improve the EB-5 Program and how to implement these changes.

5. Adjudications by CSC examiners seem to be very inconsistent in that some of petitions in the same project with exactly the same facts will be approved by one examiner but then later will denied by another examiner.

6. Many EB-5 practitioners feel that CSC Processing Times for EB-5 cases are not helpful and misleading because the processing times listed reflect the times it take for the case to reach the examiner's desk, not the actual processing times.

Since USCIS decides to either deny or approve the case, it cannot appeal the case to AAO. However, USCIS has some discretion to "certify" the case to AAO for a detailed review, while at the same time explaining its decision. USCIS is supposed to certify the case to AAO for review only where a complex or novel legal issue is present, but when the EB-5 law is as unclear as it is, there are many areas which are novel or complex.

Not really. First, whether the job-creation requirement has been met depends on each I-829 case. Second, even if the job-creation requirement for all 50 I-829 petitions have been satisfied, the way CSC adjudication seems to work, each examiner makes his or her determination even where all relevant facts are the same; therefore, even though some examiners may have already approved I-829s in a particular EB-5 project based on the same facts, another examiner may decide 3 or 4 months later to issue RFE or deny the I-829. Although from a legal perspective, each petition stands on its own, logically or common sense wise, as many of our users point out, this makes absolutely no sense.

This may be the case because CSC does not appear to have any data system to track multiple I-526 or I-829 petitions filed for one EB-5 project, or because each examiner may have a different understanding of the preponderance of evidence standard or sometimes different understanding of the controlling EB-5 law. Therefore, even if it appears that CSC has been approving multiple I-829s for the same project for the past 6 months, this does not guarantee future I-829s will be approved, even if the job-creation has been met.

Many of our users have aptly noted that this points out the issue of inconsistency in adjudication at CSC, but currently, there appears to be nothing we can do except complain.

As of July 1, 2011, our experience has been around 4 to 6 months.

We are not sure of the internal workings of USCIS, but Service Centers Operations (SCOPS) and CSC administer the EB-5 Program, but increasingly, the USCIS Director appears to make the EB-5 Program more business friendly pursuant to the Obama Administration's SelectUSA policy. See http://selectusa.commerce.gov

I hope they put pressure on USCIS to make the EB-5 Program more investment friendly to attract foreign investment that create jobs and get rid of hyper-technical requirements that do not encourage the underlying purpose of the EB-5 Program which is to attract foreign investments that lead to the creation of jobs for American workers.

Iranian EB-5 cases require an OFAC license, and need to show the movement of their funds via an affidavit, receipts and bank statements, if available at all. OFAC license requires all transactions be included, even those transactions already completed. The problem is even if OFAC license is obtained, USCIS does not automatically approve the lawful source aspect, although USCIS does give some deference. On the opposite hand, if the OFAC license does not cover the transactions, expect a nice RFE from USCIS and make your day.

Because of this additional requirement, Iranian EB-5 clients may incur additional costs to do their EB-5 cases.

USCIS has stated:

Response: Both an RFE and NOID are notice of ineligibility. Pursuant to 8 CFR 103.2(b) and Section 10.5(a) of the Adjudicators Field Manual, an RFE may be issued when initial or additional evidence are missing. A NOID may be issued where USCIS has evidence of ineligibility or derogatory information. A NOID may also be issued based on a mandatory basis for denial.

[Q] Regarding OFAC issue with Iranians, what is USCIS policy on getting an OFAC license for Iranian investors? At what stage of the EB-5 process does the license need to be acquired? Does USCIS and OFAC coordinate these policies? If so, how?

Updates:

New OFAC regs released -- read pages 84 ~ 102 related to general immigration and 100 to 101 related to EB-5 cases: http://eb-5center.com/files/OFAC_Regs.pdf

http://www.exportcompliancematters.com/2012/10/23/the-gates-have-opened-...

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USCIS has stated:

The Office of Foreign Assets Control (OFAC) of the US Department of the Treasury administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States. OFAC acts under Presidential national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze assets under US jurisdiction. Many of the sanctions are based on United Nations and other international mandates, are multilateral in scope, and involve close cooperation with allied governments. [See www.treasury.gov ]

31 CFR 560 Prohibits certain U.S. Transactions with Iran, known as the “Iranian Transaction Regulations”. (ITR)

␣ Pursuant to Section 3 of Executive Order 12959, all federal agencies are “directed to take all appropriate measures within their authority to carry out the provisions” of the ITR.
␣ Civil monetary penalties ITR violation can be $250,000 or twice the value of the transaction at issue, whichever is greater.
␣ Criminal penalties can include a fine of up to $1,000,000, and possible incarceration of up to 20 years. The statute of limitations on these violations is 5 years.

USCIS has met with OFAC in order to learn about how ITR requirements may impact lawful source of funds requirements in EB-5 petitions. OFAC has confirmed that:

1. the U.S. recipients of funds from Iranian investors as well as any individuals involved in structuring/facilitating these transactions would be in violation of the ITR unless OFAC licensure procedures have been followed.

2. Investment of funds that have passed through prohibited banks would also be in violation of the ITR. For a list of prohibited banks and Specially Designated Nationals (SDN) [See: http://www.treasury.gov/resource-center/sanctions/SDN- List/Pages/default.aspx.]

3. These investors are required to apply for and received a license from OFAC, or a letter stating that no license is needed.

4. OFAC will determine if such transactions will get a license or not via the application procedure set forth in 31 CFR 501.801(b ).

The only instance where a license would not be required is when the Iranian national resides outside of Iran and the money is shown to be obtained through a lawful source and transferred to the United States without having traveled through a prohibited bank.

␣ In all other situations, any U.S. recipient of prohibited funds and facilitators of such transaction (attorneys, accountants etc.) should apply for a license from OFAC , who will determine if the transaction is or is not prohibited by the ITR and, if prohibited, whether to grant a license to permit the transaction.

␣ OFAC has indicated that each individual transaction must be licensed separately.

The lawful source of an EB-5 investor’s capital investment must be established at the time of filing of the Form I-526 petition. The application for licensure with OFAC must be resolved prior to the filing of a Form I-526 petition by an EB-5 investors if the lawful source of the capital investment may be impacted by OFAC licensure requirements.

␣ The Administrative Appeals Office recently issued an unpublished decision which examines OFAC licensure requirements in the EB-5 context which may be helpful to those who wish to have further information on this topic.

If the OFAC license appears to be limited and does not appear to cover all of the transactions presented in the I-526 petition, then the petitioner has failed to establish lawful source of funds.

␣ If the license does not authorize any transactions that occurred prior to the date of issuance, then the license cannot cover the transfer of funds from Iran included in the petition where the license was obtained after the petition was filed.

The current situation seems to be many RFEs issued by USCIS regarding OFAC License. Thus, just having an OFAC License does not guarantee I-526 approval. The Request for an OFAC License has to be comprehensive so when the License is issued it would include many of the Source of Fund issues. There is nothing one can do with regard to the time that US Treasury is talking to issue an OFAC License. Currently, that time frame is about 6 months. The worst case is getting an RFE from USCIS regarding OFAC and they only give you 80-90 days to Respond. A nightmarish situation.

Definitely not good. Many problems associated with this system:

1. Takes too long to issue receipt notices.

2. Often makes mistakes in returning petitions incorrectly.

3. Often forwards the case file to wrong Service Centers.

Where CSC adjudicates all EB-5 cases, it doesn't make sense to file EB-5 cases to Lockbox.

Despite what many are saying, not really, for the following reasons:

1. It takes just too long to obtain the pre-approval: 6 months or longer.

2. Even with the pre-approval, CSC is known to issue RFEs on the very project which was pre-approved, even though no aspect of the EB-5 project changed after the pre-approval was obtained.

3. In fact, USCIS representative during a recent public meeting stated that USCIS had in fact never encouraged regional centers to obtain pre-approvals! We do not agree with this statement, but USCIS can offer a revisionist version, I guess.

As of first quarter of 2011 fiscal year, denial rates of both I-526s and I-829s are over 25% each, which is unacceptable. We hear a lot of complaints from RCs on unreasonable RFEs and inconsistencies in the adjudication all the time.

This means the real denial rates for both petitions are really higher, because some petitions are voluntarily withdrawn and refiled or abandoned.

[Q] We reside in Japan. Someone told me that I should file I-526, and then our entire family can enter the US on tourist visas and then file I-485 adjustment of status to obtain conditional green cards? Is this recommended?

Not at all. We do not recommend this approach, not only because it can be deemed unlawful to use tourist visas to enter the US with a preconceived intent to adjust in the US, but because no one knows how long it will take to get I-526 approved, or if I-526 will ever be approved.

If you reside abroad, we almost on all cases recommend that you first obtain I-526 approval and then do consular processing through the American Embassy located in your home country.

You must notify USCIS as follows, per a recent notice by USCIS:

Beginning March 15, 2011 all Change of Address, (Form AR-11) and Alien’s Change of Address, (Form AR-11 SR) will change filing locations. Now, you must file all change of address forms at the following address:

DHS/USCIS
Harrisonburg File Storage Facility
Attn: AR-11
1344 Pleasants Drive
Harrisonburg, VA 22801

Change of address forms mailed to the old location will be forwarded to the new filing location for 45 days beginning March 15, 2011 until April 28, 2011.

You also have the option of notifying USCIS of a change of address online. To change your address online or for more information about USCIS and our programs, visit us at www.uscis.gov.

More specifically, the online link to change address is: https://egov.uscis.gov/crisgwi/go?action=coa.Terms

We do not recommend this approach. First, no one can guarantee that your I-526 immigrant petition will be approved within the period of stay granted under your tourist visas. Second, it's legally risky to enter the U.S. with nonimmigrant visa but with a pre-conceived intent to immigrate.

If you are based in outside the U.S., it is recommended that you get your I-526 approved and THEN take appropriate consular processing steps to obtain immigrant visa through the American Embassy located in your home country.

Not unless USCIS denies I-829 and then certifies the decision. Usually, USCIS must issue NTA first, before the petitioner can "renew" the I-829 petition before the Immigration Judge, as part of the removal proceedings.

Currently, around 3 months, but you never know when it comes to the CSC processing times. It could suddenly lengthen due to the increased filings.

As you probably know, California Service Center (CSC) is the appointed Center to handle I-526s, I-829s, I-485s based on approved I-526s, and regional center designation and amendment applications.

There were around 10 examiners at CSC handling EB-5 cases, but starting 2011, that number probably increased to around 15 to 20 examiners. Any time new examiners are brought in, there is a steep learning curve when it comes to EB-5 cases, and there probably is no way to avoid inconsistent decisions.

Let me just say EB-5 applications are such that if the examiner wishes to be strict in his or her review, the examiner could probably RFE and/or deny over 90% of all cases presented. It all depends on how "reasonable" the examiner is.

What I am saying is this: You have EB-5 statutes and regulations on one hand, and then, on the other hand, you have what the examiners believe are the EB-5 law.

There are all kinds of EB-5 policies which are not supported in the EB-5 statutes and regulations, which act as "de facto" law; and one single misunderstanding or misapplication of EB-5 policy on a single issue can lead to a denial of I-526 or I-829 petition. It used to be not like that in the past; but in fairness, USCIS did not had to deal with many I-829 related issues that started cropping up as more and more I-829s were filed from 2007 or 2008.

More you think about it, the EB-5 Program is a Program built on various strands of strings, and if one of them breaks, the entire EB-5 Program can fall.

From our personal point of view, the weakest aspect of the EB-5 law is that on many issues, there is a lack of logic or practicality. Hopefully, USCIS will make some changes, and convey these changes to examiners.

Yes, even if the son or daughter is over 21 at the time of immigrant visa interview at the American Embassy. That is because CSPA controls.

Be very careful doing I-824 for follow to join processing for dependents who follow to join the PA. See below Q & A from October 28, 2010 AILA-VO LIAISON QUESTIONS & ANSWERS. It appears that there are serious issues with I-824 processing.

Q: Members report problems with the I-824 processing between the USCIS and NVC, which are resulting in significant delays in reuniting families. In our fall 2009 meeting, VO advised there would be a new process for FTJs for adjustment cases and the process would begin at NVC and then transfer to posts but in March 2010, we were advised that the new procedures were still in the development stage. Please advise when the new (and very welcome!) procedures will be implemented.

Answer: We are in the process of finalizing an information collection that will allow VO to collect the information necessary to process FTJs for adjustment cases and reviewing the costs associated with this function. Once that form is finalized and we have a cost determination, we will decide whether to begin the process of obtaining OMB approval for the collection and establishing the appropriate procedures for process. At this juncture there is not a firm timeline as to when these new procedures will be implemented.

Not really. Regional Centers marketing may say so, but the fact is USCIS can "pre-approve" the underlying EB-5 project and then still raise questions about the project when they are adjudicating I-526s. This raises a bona fide question which is: Why get the pre-approval then? This is another aspect in which the USCIS adjudication is pretty uneven and inconsistent for EB-5 cases.

Because USCIS computer system is not advanced. USCIS says it is working to make this possible.

CSC says that they try to decide the case within one month of receiving RFE response. However, you should take that with a grain of salt. Based on our experience, CSC can take as long as it wants to decide the case even after receiving RFE response, especially if the RFE deals with policy issues.

This question was answered on May 10, 2010 during the Central Florida Chapter – Orlando USCIS Liaison Minutes as follows:

In order to change address at the local USCIS Orlando office, the attorney needs to write a letter stating their new address and attach a copy of their bar card. In order to change the address at USCIS service centers, the attorney will have to file a new Form G-28 for every client. Currently, there is no procedure for attorneys to file one form and change address for all clients.

Sure wish there was that one "magic" single G-28 form which would change address for all cases under the Attorney's representation!

Also, go to the below link to find out how to get G-28s recognized by USCIS.

http://eb-5center.com/node/976

No, after the entire family members (including PA) obtain Immigrant Visas from the American Embassy, the PA and dependents must either enter the U.S. together as immigrants or PA must enter the U.S. as an immigrant first and then followed by dependents. This is because all the rights of the dependents "depend" on the PA's rights. Until each person obtains "permanent" green card status, just think of dependent family members "piggy-backing" on the rights of the PA.

As of May 3, 2010, applicants for I-526-based I-485s must file at a lockbox address depending on where the applicant resides. See page 7 of the below link:

http://www.uscis.gov/files/form/i-485instr.pdf

Therefore, do not file the I-526-based I-485 at CSC. We do not know the rationale behind such change. At any event, if you encounter any problems with lockbox receipts, you should email to: LockboxSupport@dhs.gov.

Yes, we can tell you a little bit of the CSC facility because we recently participated in an AILA sponsored tour of the CSC facility (conducted by CSC staff) on April 28, 2010. Here are personal observations:

1. CSC facility, a yellow-orange colored pyramid like building, is located at 24000 Avila Road, Laguna Niguel, CA. For those of you who are not familiar with Laguna Niguel area, it is relatively affluent area around 30 minutes away from Irvine, CA and around 50 to 60 minutes away from the Los Angeles, CA. I always imagined the CSC as being located in the middle of a desert but that was not the case.

2. Lines of thousands files everywhere. Hundreds of contractor workers receiving and fee'ing the files, dividing them into different types of cases, I-130, I-140, Premium Processing cases etc. File rooms were just warehouse with rows of files. You can easily imagine your case file getting lost if someone makes clerical mistakes.

3. The interior work spaces were not as nice as it could be. [I think CSC should participate in an EB-5 project to upgrade its interior to create a more friendly working environment. :)] Examiner is stationed at a partitioned cubicle, similar to a caller customer center you see in movies but the partitions were not as nice.

4. An average age of examiners working at the CSC appeared to be around 35 years old (but some looked younger and some looked older), and many of the contractor workers and examiners appeared to be immigrants themselves. They actually appeared to be nice, and I even exchanged greetings with some of the examiners who said "hi" as we passed by. At least, know that your cases are being denied by nice people. I specifically asked the tour guide staff if EB-5 examiners were pretty nice, and the tour guide staff said she knew them personally and that the EB-5 examiners are indeed nice people and are relatively more experienced, and they do not rotate to other cases divisions. As a result, they tend to be older examiners, with an average age of around 40 to 50, composed of around 20 examiners, half males and half females.

5. It appears that visitors must park at the South Gate (you just have to keep on driving around the pyramid building until you see the sign South Gate.)

[Q] The December 11, 2009 Neufeld guidance memo basically allows the petitioner to file second I-526 petition in case "material" changes (no one knows what they are) take place to the underlying EB-5 project AFTER I-526 petition approval, and if new, second I-526 petition is filed and approved, petitioner must then abandon their conditional permanent resident (CPR) status by using form I-407 and then re-apply via I-485 to reacquire and go through their new, two-year CPR status. What is wrong with this scheme?

* First, note that USCIS itself says contents contained in their guidance memos do not constitute law and cannot be relied upon in any dispute but is issued only to guide CSC examiners. However, this means "practically" the guidance memos have an effect of EB-5 law, unless you choose to fight it at the federal court level, because AAO will almost always follow the USCIS issued guidance memos even though USCIS has said they are not "EB-5 law". I guess that is the home court advantage that a governmental agency has.

We believe the Service could have implemented a better procedure -- one that is more practical and in compliance with the immigration law -- by narrowly defining the "material" changes AFTER I-526 approval and then require an amendment to the original project through a "dummy" I-526 petition -- so that notice of such change to the Service will apply to all investors participating in the same project -- rather than force petitioners individually submit an entirely new, second I-526 petition, then abandon CPR and then re-acquisition of the CPR status which you just abandoned -- and this procedure does not even help "aged-out" dependents who turned 21 in the meantime.

The outlined procedure in the December 11, 2009 Neufeld guidance memo is impractical and causes too much delay. It's a convoluted mechanism that basically allows the Service to deem any changes to the underlying EB-5 project "material" and then to punish someone when there has been bona-fide, non-mateiral changes to the project. The procedure contained in the Neufeld memo looks like some sort of solution where EB-5 project has changed, but it is not.

[Also read http://eb-5center.com/node/708 which points out another procedure which lacks legal support.]

We strongly believe that if such changes to the EB-5 project AFTER I-526 approval are truly "material changes" -- which should be defined in terms of whether a petitioner is able to meet the specific requirements of the stated I-829 requirements -- then, the law, including INA 245(d), should be followed and I-829 should be denied. This is why the Service has to narrowly define what are "material changes" that occur AFTER I-526 approval, and not get concerned about "immaterial changes". Simply put, a "material change" AFTER I-526 approval should be narrowly defined as a change that makes it impossible that petitioner-investor to meet the clearly stated requirements of I-829. We believe the Service is confusing a "material change" BEFORE I-526 approval with a "material change" AFTER I-526 petition: this basically leads the Service to formulate an illegal procedure outlined in the Neufeld guidance memo.

In the event "immaterial" changes occur to the EB-5 project AFTER I-526 petition, review those changes at the I-829 level and if they are really "immaterial" changes, approve the I-829. Or as an alternative, offer an option of filing an amendment through a "dummy" amendment to already-approved I-526 petition if petitioner wants to inform the Service in advance of the "material changes" that have occurred. Why is this "amendment" procedure a better and fairer solution? First, amended petition is allowed to be filed in many other contexts, including H-1B and I-140 immigrant petitions. Second, practically there is no way for regional centers and petitioners (even USCIS itself will have a hard time distinguishing) to know if any change will be considered "material" or "immaterial" changes by USCIS, which means they should always be filing something to protect themselves. Lastly, allowing such amended I-526 petitions would protect the "aged-out" dependents who turned 21 in the meantime. Why USCIS does not simply allow amended I-526 petitions in case of "material" changes is perplexing, especially in light of their previous oral statements that an amendments will be allowed. In case multiple I-526 amendments are needed for a specific regional center based project, one "master" I-526 amendment filing should be allowed, because it makes no sense for each individual petitioner to have to file the same amendment each time. And no, we strongly disagree that the law mandates that each petitioner has to go through the same process: that is due to a very narrow and unreasonable interpretation of the EB-5 statutes and laws.

We believe where the immigration law is clear, it should be followed; in this sense, the December 11, 2009 Neufeld guidance memo is intellectually dishonest policy which the Service just pulled out from thin air like a magician. But where the law is not clear, the CSC Director should exercise her discretion and approve I-829 petition where "immaterial changes" occurred AFTER I-526 approval. Actually, the very fact that I-829 requirements are met should indicate whether certain changes are "material" or "immaterial".

Let's put it this way: We have not yet seen or heard the AAO ever reversing the Service's denial on either I-526 or I-829 petition in the history of EB-5 cases. We cannot be certain if this means AAO has never overturned the Service's decision on EB-5 case, as there is no such record. Either the Service is right every time it denies an EB-5 case, or all EB-5 appeals to AAO lacked any merits. Basically, to really get a "real" review of your denial, you might be better off going to Immigration Judge or will definitely be better off going to the federal court if you can afford the costs.

One reason why the Service and AAO can deny an EB-5 case so easily is because EB-5 statutes and regulations are so broad, and there are so few federal court cases on point, and there are so few precedent AAO decisions.

The favorite rationale used by both the Service and AAO to deny your case is: "There is nothing in the EB-5 law which allows so and so . . . " But one could just as strongly argue: "There is nothing in the EB-5 law which prohibits so and so . . . ".

When you review many of AAO decisions, you get the sense that AAO already decided to uphold the Service's decisions and then try to come up with supporting reasons, rather than act as a neutral "reviewer" of relevant facts and EB-5 related laws. Like we said, the EB-5 law has so many holes that anyone can "reasonably" arrive at any conclusions, and when it comes down to it, a lot of what USCIS and AAO cite as "the EB-5 law" is nothing more than their desires policies for the EB-5 Program.

Another negative aspect of AAO review is that AAO almost never allows an oral hearing: that means, you might have to go through many MTRs and many years waiting for AAO to render their decisions.

The best way is to contact the CSC and let them know that I-485 is pending for another category and that I-526 immigrant petition has been approved. CSC will then allow the existing I-485 to be decided based on the approved I-526, so you don't have to file another I-485 and pay additional I-485 related filing fees.

According to CSC, the answer is "no". This is possible only for regional center based amendment applications or initial regional center designation applications.

We asked this question to the CSC staff, and they informed us for most cases, green cards are produced just at one green cards production facility located in Corbin, Kentucky.

First, it means your case has been received and inputted into USCIS computer system.

Second, I-829 receipt notice is a documentary evidence that allows you to work and travel for one year. [That's what the receipt says.] However, if you or your family member intends to travel outside the U.S., we recommend that you make an Infopass appointment with USCIS Field Office and get I-551 stamps in your passports.

Third, you can track status of your filed I-829 case by typing in the receipt number into the Online Case Status Check system at www.uscis.gov site.

It really depends on many facts, and the ability of the investor and family members to physically remain in the U.S. for many months.

Normally, we would say do IV processing, unless there is some urgent need to emigrate to the U.S. quickly, or the Investor and family members are already physically staying in the U.S. on nonimmigrant visa status.

The important thing is you have to indicate whether the investor will do IV processing or do I-485 processing on the I-526 form itself. Therefore, this is something you have to think and decide in advance.

No. The "concurrent" filing is a procedure allowed by USCIS where an underlying immigrant petition and I-485 adjustment applications are filed with an appropriate Service Center at the same time.

Why doesn't USCIS allow the concurrent filing for EB-5 cases? It's because they don't have enough manpower, and they believe I-526 petitions are too complex to be adjudicated so quickly.

We actually believe that the EB-5 law should be changed to allow investors who already invested, maintained their investment in the new commercial enterprise for at least 2 years and then created and maintained requisite new, full-time jobs for 2-year period, to obtain PERMANENT green cards from the beginning, like in marriage to USC cases.

This stuff about "conditional" green cards is not fair to foreign investors. We believe in either giving green cards or not giving green cards. "Conditional" status creates too much complexities when the cases do not go as planned. We think this is a "dumb" frame work that does not take into account how much money, time and effort these foreign investors have put into their decision to move to the good old USA. It creates more work and money for USCIS and attorneys, and more hassle for investors and their families.

If you are going to give U.S. citizenship to people for just being born in the US, you certainly should give "permanent" green cards to these investors and family members who actually are helping U.S. economy. We realize there is a constitutional right to the former, but from a practical point of view, it doesn't make sense.

[Q] USCIS touched upon this issue in the past, but the answer provided then was unclear, so this is a follow-up. Can a dependent spouse and children be included in the same I-829 petition with the principal applicant (i.e., the investor), even when the conditional resident status for the spouse and children will expire several months later than the principal applicant's conditional resident expiration date? Furthermore, even if the dependents are not included in the principal applicant's I- 829 application, once the principal applicant's I-829 is approved, will the dependents' I-829s be deemed to be approved, without filing separate I-829 by the dependents?

USCIS Answer: Yes they can be included as their status is directly related to the investor’s status as long as the adjudication of the I-829 occurs after the derivatives have reached the filing period described in INA § 216A. If the derivative beneficiaries have not been admitted to the United States for at least one year and nine months at the time that the principal’s I-829 is approved, they will be required to file a separate I-829 during the period described in INA § 216A.

[Q] 8 C.F.R. § 216.6(a) clearly states that where the principal applicant dies or gets divorced during the two-year conditional resident period, the former spouse and children can file I-829s together or separately. What if the divorce or death takes place after the 2-year conditional resident period but while the I-829 is still pending? What happens then? A reasonable interpretation would be that the answer remains the same.

USCIS Answer: The situation is handled in the same manner.

[Q] Is it a mistake for USCIS to classify on I-526 or I-485 receipt and approval notices an EB-5 case as "T5" when the EB-5 case combines both a regional center (RC) and a targeted employment area (TEA)? USCIS often classifies an EB-5 case as "T5" when it should actually classify the case as "I5". However, our understanding is that T5 (TEA) does not necessarily exclude I5 classification, which combines both TEA and RC features. What is the step that needs to be taken to correct the wrong classification symbol specified in the receipt or approval notice? This problem can arise in a following-to-join scenario where the U.S. consular post argues that the "T5" category indicated on an I-485 approval notice should be corrected to "I5".

USCIS Answer: There is really no need to seek a correction as they both indicate an EB-5 immigrant and that is the essential matter. If there are specific cases in which there has been a problem, please provide the information to us.

Question asked and answer given by USCIS during June 24, 2009 Stakeholders meeting were:

Is it a mistake for USCIS to classify on I-526 or I-485 receipt and approval notices an EB-5 case as "T5" when the EB-5 case combines both a regional center (RC) and a targeted employment area (TEA)? USCIS often classifies an EB-5 case as "T5" when it should actually classify the case as "I5". However, our understanding is that T5 (TEA) does not necessarily exclude I5 classification, which combines both TEA and RC features. What is the step that needs to be taken to correct the wrong classification symbol specified in the receipt or approval notice? This problem can arise in a following-to-join scenario where the U.S. consular post argues that the "T5" category indicated on an I-485 approval notice should be corrected to "I5".

USCIS Answer: There is really no need to seek a correction as they both indicate an EB-5 immigrant and that is the essential matter. If there are specific cases in which there has been a problem, please provide the information to us . . .

[Q] What types of security checks, including FBI name checks, are required for I- 526s, I-485s (I-526-based), and I-829s? Also, do all I-526s, I-829s and I-526-based I- 485s each require separate FBI name check clearance?

USCIS Answer: It depends on the type and level of benefit being requested. All petitions receive a minimum number of checks; some get additional checks. We can’t delve too deeply into that issue. In general:

IBIS checks last 180 days; FBI name check last 15 months; and Fingerprint checks last 15 months.

Depending on processing times, some people go through additional security checks because their previous checks have expired.

No, USCIS will send out notices to only attorney of record indicated on G-28 or to the client.

USCIS stated that because of their computer system constraints, I-829 cases cannot be tracked via USCIS Online Cases Status system with I-829 receipt notice number. Instead, they can be tracked with ASC receipt notice numbers sent out shortly after filing I-829 petitions.

A clear "no" is the answer given by USCIS on this issue. We do not believe USCIS wants to have to adjudicate cases that quickly, although I-485 adjudications have shortened due to faster FBI fingerprint checks. We believe the USCIS' goal should be 3 months for both I-526 and I-829. By regulations, USCIS is supposed to adjudicate I-829 within 3 months. If they don't follow their own regulations, how can they expect others to comply with these regulations?

Where does it say that USCIS should adjudicate I-829 cases within 3 months? See below 8 CFR 216.6 regulations. It says the decision on I-829 petition "shall be made within 90 days of the date of filing or within 90 days of the interview, whichever is later." But since there is almost no interview on I-829 filings, that means practically USCIS shall decide within 90 days.

(c) Adjudication of petition. (1) The decision on the petition shall be made within 90 days of the date of filing or within 90 days of the interview, whichever is later. In adjudicating the petition [emphasis added], the director shall determine whether:

(i) A commercial enterprise was established by the alien;

(ii) The alien invested or was actively in the process of investing the requisite capital; and

(iii) The alien sustained the actions described in paragraphs (c)(1)(i) and (c)(1)(ii) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence.

(iv) The alien created or can be expected to create within a reasonable period of time ten full-time jobs to qualifying employees. In the case of a “troubled business” as defined in 8 CFR 204.6(j)(4)(ii), the alien maintained the number of existing employees at no less than the pre-investment level for the previous two years.

All cases are on the same track and adjudicated within the same general processing time. Examiners are assigned to work on either regional center based cases or individual cases or both. RFE or Notice of Intent to Deny are issued where the examiners believe there is insufficient evidence to establish the requirements.

You will first obtain conditional permanent resident status, and that my friend, takes around 10 months or more. Here's the reason why. First, it takes anywhere 3 to 6 months to get I-526 immigrant petition approved, and then it takes around the same time to get EITHER I-485 adjustment application or Immigrant Visa approved. You become a conditional permanent resident ONLY AFTER you obtain EITHER I-485 adjustment approval or Immigrant Visa (IV) approval and enter the United States as intending immigrants.

I guess someone with I-526 petition approval could enter the United States as a tourist and then submit I-485 adjustment application and stay in the United States until it's approved, but we do not recommend this course, because it is inconvenient and also could be construed as a violation of U.S. immigration law. The best way is to obtain IV approval abroad via American Embassy in your home country and then enter the United States, unless you have been staying in the U.S. in nonimmigrant status.

Not really, although generally speaking, for more established regional centers, CSC adjudicators will probably just focus on the lawful source issues.

How fast particular cases are reviewed and adjudicated really depends on the particular officer reviewing your case, not the regional center itself. Sometimes, you might get lucky and get I-526s approved even within 3 weeks, but that is a very rare exception. Most I-526s take at least 3 ~ 5 months to get adjudicated. Sometimes, your case file may get mis-routed and sit there for some time, un-adjudicated.

Therefore, any regional center which says their cases are adjudicated faster than other regional center cases -- we don't believe them. But we do believe that they may have had several I-526 cases adjudicated very quickly especially when the EB-5 lapse deadline was approaching.

A detailed answer already exists in the "Process" menu on top. You can review this article at: www.eb-5center.com/I-829_who.

Whether the attorney is sufficiently capable to handle your EB-5 case depends on the attorney's character, intelligence, familiarity, knowledge, etc. with EB-5 area. In our opinion, to handle EB-5 case capably, the attorney should have at least 5 years work experience (some would even say 10 years) in general U.S. immigration law and also have handled (successfully) some EB-5 cases before.

Do not assume that all U.S. immigration attorneys have experience in EB-5 cases. Many immigration attorneys go through their career without having handled a single EB-5 case. This is not a knock on them at all, because they are probably more experienced or adept at handling different types of U.S. immigration cases, be it family-based immigration cases, deportation or labor certification cases, etc. Also, U.S. immigration law is a very complex area of law, and the immigration law changes quite often; therefore, it is not fair or wise to expect a U.S. immigration attorney to be expert on every area of U.S. immigration law. EB-5 area is pretty specialized, and there are not as many EB-5 cases as there are let's say family-based green card cases, so it is only logical that a minority of U.S. immigration attorneys will actually have had an exposure to EB-5 cases.

The DHS department was established on November 25, 2002, by the Homeland Security Act of 2002. It was intended to consolidate U.S. executive branch organizations related to "homeland security" into a single Cabinet agency. The following 22 agencies were incorporated into the new department. One problem is that in real life, these different agencies do not all work together and interpret U.S. immigration laws in the same way, even though the laws and regulations are the same -- thereby causing some problems and ordeals to permanent residents. I can give you many examples but I won't.

* Customs Service – Treasury
* Coast Guard – Transportation
* Secret Service – Treasury
* United States Citizenship and Immigration Service (formerly Immigration and Naturalization Service) – Justice
* United States Border Patrol (formerly Immigration and Naturalization Service) – Justice
* U.S. Immigration and Customs Enforcement (formerly Immigration and Naturalization Service) – Justice
* United States Federal Protective Service (part of ICE)
* Transportation Security Administration – Transportation
* Federal Law Enforcement Training Center – Treasury
* Animal and Plant Health Inspection Service – Agriculture
* Office for Domestic Preparedness – Justice
* Federal Emergency Management Agency
* Strategic National Stockpile and the National Disaster Medical System – HHS
* Nuclear Incident Response Team – Energy
* Domestic Emergency Support Teams – Justice
* National Domestic Preparedness Office – FBI
* CBRN Countermeasures Programs – Energy
* Environmental Measurements Laboratory – Energy
* National BW Defense Analysis Center – Defense
* Plum Island Animal Disease Center – Agriculture
* Federal Computer Incident Response Center – GSA
* National Communications System – Defense
* National Infrastructure Protection Center – FBI
* Energy Security and Assurance Program – Energy

Detailed information on DHS can be found at: http://en.wikipedia.org/wiki/US_Department_of_Homeland_Security

ASC is an acronym for Application Support Center, and their primary purpose is to render biometrics (digital fingerprint and photo taking) services for various immigration benefits related applications. Therefore, when EB-5 investor submits I-829 conditions removal or I-131 reentry permit application, the investor will receive ASC Notice telling him or her to go to a specific ASC office at a designated time and place to do biometrics. They are not the same facility as USCIS Field Offices; instead, they provide biometric functions needed for immigration applications that are submitted to USCIS.

Biometric functions used to be rendered by local USCIS Field Offices in the past, but recently, this function has been "farmed out" to ASC offices located near local Field Offices.

Our recent experiences indicate that CSC sends out ASC biometrics notices within several weeks of receiving I-485s or I-829s. Note that receiving ASC biometric notice does not mean that your case will be approved.

CSC and USCIS both say they try to adjudicate cases received at CSC in FIFO basis, but our experience has shown that so far, this is not true. You will often see I-829 cases filed 5 months ago approved, while I-829 cases received 11 months ago are still pending -- for the same EB-5 project with the same facts and job numbers. Also, the same thing with I-526 petitions. This may change in future, as some procedural kinks are worked out.

No, when you enter the U.S. on a visa waiver status -- the right conferred upon nationals of the Visa Waiver Program countries -- you cannot file I-485 even if you have I-526 approval. That's one of the benefits you are giving up when you enter the U.S. on "visa-waiver" status.

Except for limited circumstances where there are strong reasons why you and your family members cannot even come out to home countries even for 7 or 10 days or there are certain factors that may delay issuance of Immigrant Visas at the Embassies, we recommend consular processing over I-485.

No, there is no "concurrent filing" allowed for EB-5 cases, meaning you cannot and should not submit both I-526 petition and I-485 together at the same time. You have to wait until I-526 petition is approved, and if you are still maintaining your NIV status (note maintaining your NIV status is different from avoiding "unlawful stay" -- hard to explain it here), you can go ahead and file I-485 adjustment of status application.

Personally, I am not a fan of the concurrent filings because it raises too many issues. I am also not a fan of USCIS using lockbox addresses to receive applications.

[Q] I heard from someone that in one case, the USCIS California Service Center (CSC) initially approved the foreign national's EB5 petition. Once the CSC received the I-485, it issued a Notice of Intent to Revoke (NOIR) the previously approved I-526 immigrant petition. The CSC deemed the response to the NOIR as unsatisfactory due to the evidence provided and issued a Notice of Revocation for the previously-approved petition. Can this kind of thing happen to me also?

First, I don't think this occurred recently, but this sort of decisionsdid occur from time to time many years ago. In the past, one of the problems with EB-5 Program was that after I-526 petitions were approved often by another Service Center, CSC (where the applicant resided and had jurisdiction over the filed I-485 case) decided that the previous examiner mistakenly approved I-526 petition.

Currently, this kind of happening is very rare (as it should be), and is justified only where there were some adverse, material changes that CSC became aware of after I-526 petition approval, based on which CSC strongly believed that the initial I-526 was mistakenly approved. For example, if certain Regional Center project turned out to be a fraud, or if the applicant-beneficiary lied about some material facts, etc., that would be a justifiable ground for revoking the initially approved I-526 case even during I-485 stage.

As of May 4, 2011, we think there are around 30 CSC examiners working on EB-5 related applications, and USCIS' goal is 5 months for I-526 and under 6 months for I-829s.

However, we do not know whether some EB-5 examiners are rotated to other divisions, etc.

[Q] I hear about the Regional Center Program's sunset date being extended temporarily several times. Will the success or failure of extensions adversely affect persons like me who already obtained conditional permanent resident status through a RC EB-5 Program?

No, not at all. Since you and your family already obtained CPR status, this sunset or extensions will not have any adverse effect on your ability to file I-829 case.

Currently, the RC Program is undergoing temporary extension until it can be extended for either 5 years or made permanent. We believe at minimum 5 years extension of RC Program will take place before end of 2009.

First, USCIS (specifically, California Service Center) can approve your I-526 immigrant petition, and send you an Approval Notice to prove the approval.

Second, CSC examiner of your I-526 petition can send you what is called RFE (Request For Additional Evidence) requesting additional documents or explanation on your case. Getting RFE may delay adjudication of your I-526 by around 2 months, but RFE is not something to get upset or worry about.

Third, CSC examiner can send you a denial letter. It would be a very rare case to deny your case outright unless the CSC examiner believes that your I-526 case cannot be approved based on a legal basis.

The most important thing about I-526 petition is to make sure certain documentary evidences can be obtained by EB-5 client to prove certain points. If this can be done, it should be no problem to get I-526 petition approved. Really, getting I-526 petition approved is not all that hard, although there may be a lot of paper work involved.

Depends on the country of your residence. After you receive an approval notice of I-526 immigrant petition, it can take anywhere between 4 to 7 months to obtain Immigrant Visas for you and your family members.

As some of you may already know, "AILA" stands for the American Immigration Lawyers Association. I would say most "serious" US immigration attorneys do belong to AILA, but I can imagine very experienced U.S. immigration attorneys who choose not to belong to AILA, simply because they know enough about their area of practice and they can keep up with new developments on their own.

The level and years of experience in certain fields of U.S. immigration law differ greatly among even AILA U.S. immigration attorneys. Anyway, belonging to AILA should not be the sole criteria. You should retain an experienced and capable US immigration attorney regardless of whether that attorney is an AILA member or not. Also, I would even say I rather go with an immigration attorney not as experienced but who is very motivated, smart and will work hard for you, rather than an experienced immigration attorney who you think is a lazy bum and not very responsive to your questions. Anyway, it is up to you to decide if the person you want to retain is capable in the EB-5 area.

** Having said this, said writer has been an AILA member for I think over 16 years or so, but really, this fact alone should not be the reason why you should retain someone.

One reason is that only after I-526 petition approval, can EB-5 investor proceed with either IV processing or I-485 adjustment. Second reason is that unless I-526s are approved, the investors' moneys deposited in the designated escrow cannot be released to the Limited Partnerships acting as a New Commercial Enterprise (the "NCE") for EB-5 projects. This means the release of the funds will be delayed, causing sometimes insurmountable problems. The EB-5 projects, involved with real projects in a real world, with real commercial constraints, cannot afford to keep waiting for a portion of their project financing.

Many investors think that there is an ulterior reason(s) for RCs wanting the moneys released as soon as possible, but this just is not so. RCs or principals of any EB-5 projects want I-526 approved, just as much as the investors, but for somewhat different but related reasons.

Most EB-5 cases probably choose to do consular process for many reasons we will not address here. The procedure is the submission of necessary documents and showing up at the Immigrant Visa section at the American Embassy in your country of residence and submit the docs, do fingerprints and then stand at the bank counter like window and answer consular officer's questions for about 10 minutes. That's it. But the waiting in between can take total of 1 to 3 hours.

Sometimes, certain American Embassies in certain countries might not be too familiar with EB-5 Regional Center cases, but with an approved I-526 immigrant petition in hand, consular officer must either approve the case, ask for pertinent documents or return the I-526 approval back to USCIS if the consular officer sees a clear failure to meet the requirements or a fraud.

Our answer is around 1.5 years before your estimate immigration date. This is to give you more than enough time. Keep in mind that although it is easy to delay the processing, it's hard to speed up the processing. So, an early start is important. Besides, who knows if and when the $500,000 USD TEA amount will be raised from $500,000 to a higher amount?

Unlike I-526 petition procedure, if I-829 is denied, there is no per se appeal right, but at deportation hearing, USCIS will have the burden to prove by preponderance of the evidence that they were right to deny the I-829 petition. Because you have certain rights in the deportation hearing, USCIS will make sure you did not meet the requirements before denying any I-829s.

Also, if you are unfortunate to be in this situation, and the denial results from a questionable interpretation of EB-5 law by USCIS, then you may have other federal court avenue to fight the denials. At this point, you probably need a good immigration attorney who is knowledgeable about EB-5 law and has experience of litigation at federal courts.

The problem is this litigation path is very costly, although the court decision may force USCIS to pay some or all of the litigation costs, including attorney fees.

No appeal shall lie from this decision; however, the alien may seek review of the decision in deportation proceedings. In deportation proceedings, the burden shall rest with the Service to establish by a preponderance of the evidence that the facts and information in the alien's petition for removal of conditions are not true and that the petition was properly denied.

Yes, below is the language. However, the below regulation is not being followed.

(1) The decision on the petition [I-829] shall be made within 90 days of the date of filing or within 90 days of the interview, whichever is later.

Ironically, if you do not file I-829 within the 90-days window period, then your CPR will terminate, but if USCIS does not adjudicate I-829 within 90 days as stated above, nothing happens.

The above regulatory language clearly shows that the Congress (and actually, USCIS itself) at one time thought it was perfectly reasonable or necessary that I-829 be decided within 90 days from the filing date.

No, there is no telephone number or email address at CSC itself. However, you can check status of your EB-5 case by going to: www.eb-5center.com/Case_Checker.

If you have any other questions regarding your EB-5 case, or if you have not received a decision from USCIS within the current processing time listed, you can contact the USCIS Customer Service at (800) 375 – 5283 or 1-800-767-1833 (TTY) and speak to a live person, but they cannot tell you the reason why your case is taking longer, but they do relay your message to CSC.

In the event there is an unreasonable delay with your case, ask your immigration attorney of record to contact the USCIS EB-5 Headquarters in Washington, DC. Writing letters directly to CSC do not appear that helpful, as any responses appear to be standard boilerplate language.

According to USCIS, there are 10 examiners who work solely on EB-5 related applications, such as I-526, I-526-based I-485s, I-829s and finally Request/Proposal to receive Regional Center designation to carry on business as a regional center. Actually, that's not that many given the fact that delays will in real world make it very hard to start bona-fide EB-5 projects.

Even though the filing fees for EB-5 related applications are relatively high, the filing fees received from EB-5 cases do not go directly towards improving the operation and adjudications of EB-5 related cases. We really feel that a faster processing would have a great effect of encouraging more EB-5 cases to be filed even during this tough economic times.

Under the EB-5 law, spouse and dependents can be included in the same I-829 condition removal application only if they obtained CPR status within 3 months period after the Principal investor obtained CPR status. That means you have to apply for I-829 separately, and under the current EB-5 law, you have to pay separate filing fee.

First, all visa waiver entrants are given only 3 months of stay, and they cannot change status or adjust in the United States, even if they have an immigrant petition approved and they are maintaining their status in the U.S. That's the benefits the visa waiver entrants forego in exchange for visa waiver benefits.

I-526 immigrant petition: $1,435 regardless of whether dependents are included or not.

I-829 condition removal: $2,850 plus a biometrics fee of $80. An additional biometrics fee of $80 must be paid for each conditional resident dependent, listed under Part 3 or Part 4 of Form I-829.

Why is it so expensive relative to other types of applications? Supposedly, it's more time-consuming to review and decide EB-5 applications. We believe EB-5 investors would not mind paying the relatively high filing fees if the processing times were quicker. Hopefully, the processing times will come down.

Unfortunately, not yet, but USCIS is looking into this possibility, but don't hold your breath.

No, although "concurrent" filing is allowed for some Employment-based categories, I-526 immigrant petition and I-485 adjustment cannot be filed together at the same time in the United States. USCIS does not like "concurrent" filing too much, so we do not see USCIS allowing concurrent filing in near future, if ever.

"Concurrent" filing is helpful when the applicant will have a hard time maintaining status while an immigrant petition is pending. This means it will be very difficult for an applicant who entered the United States to file I-526 petition and then be able to adjust in the United States.

You and your dependent family members should submit I-829 condition removal application to CSC during the 3 months window period, beginning from 21st month to end of 23rd month from the acquisition of CPR status.

The exact point in time at which the conditional resident status (CPR) is acquired is at the time the applicant or dependent family member enters the United States as intending immigrant with the valid immigrant visas, or at the time I-485 adjustment application is approved by the USCIS.

There may be a Request For Additional Evidence (RFE) issued by the USCIS examiner in charge of I-526 petition. Responding to the RFE and getting a decision may take another 2~3 months. RFE may be very simple or complex. Sometimes, the RFEs raise valid issues; sometimes, USCIS examiner may not have understand the submitted information correctly; and sometimes, the USCIS examiner may have overlooked the documents already submitted. It all depends.

It varies dramatically with the available staff, number of EB-5 related cases pending and resources of CSC at any applicable time. We would say on the average it takes anywhere between 5 to 7 months from the time I-526 petition has been submitted.

Direct, Individual EB-5 Cases (30)

Direct, Individual EB-5 Cases

No, if you try doing so, your I-526 gets denied. Believe it or not, some inexperienced people set up a non-RC EB-5 project and tried to count indirect jobs, leading to USCIS denials.

Generally, no, because such jobs created by the loan receiving job-creating business would be considered "indirect" jobs, and only "direct" jobs count for direct, individual EB-5 case. We even observed some direct, individual EB-5 project which did not realize this get denied on I-526 petitions because they did not realize this point. If they read www.eb-5center.com site, they would have realized this.

However, I believe a loan model might be used for Direct EB-5 IF and ONLY IF the foreign investors money need to be injected into a wholly owned subsidiary under the NCE/JCE.

Yes, why not? But better consult with an experienced EB-5 practitioner to make sure you have all necessary evidences to meet the requirements.

Yes, but as a practical step, you should have them appraised and then given a value before contributing them for the use of the new commercial enterprise entity. Otherwise, USCIS examiner might not believe in the value assigned.

Well, legally speaking, B1 business visa allows you to enter the US and carry out these business and/or investment activities, including but not limited to, finding a suitable business, researching business, meeting and retaining attorneys and CPAs, etc. In short, the preliminary activities can be carried out in B1 business visa.

Even after you file I-526 petition, you can travel back and forth from the U.S., but you might have to explain that you will be returning back to your home country to process immigrant visas.

It's not a good idea to enter the US thinking you can get I-526 petition approved and then file I-485 adjustment application and stay in the US without going out. This is because there is no "concurrent" filing allowed for EB-5 cases.

No, each state's applicable agency might have an updated list of TEA areas (divided into "rural" or "high unemployment areas"). Ascertaining TEA area in itself can be an arduous task sometimes.

No, the EB-5 law does not require that the money come from abroad into the U.S.
In short, if you have earned the money in the U.S. in lawful status, that should suffice.

From a legal point of view, we don't see why this cannot be done in a direct, individual EB-5 case, when this mechanism is allowed in a regional center based EB-5 case.

Probably not. USCIS would probably would require that the job numbers saved be at least 10.

Not according to a recent USCIS response: they seem to imply that all jobs must be saved.

USCIS deems that the 40% increase in employees result in at least 10 jobs. Note investing into an existing business must result in 40% increase in capital increase or number of employees.

Aside from making sure that the business really qualifies as a "troubled business" under the EB-5 regulations, we advise potential EB-5 investors to think twice before doing an EB-5 case through a "troubled business" because of the below "opinion" of USCIS on a job-saving issue involving a troubled business.

http://eb-5center.com/node/658

You should also review advantages and disadvantages of a troubled business EB-5 case under the EB-5 law at: http://eb-5center.com/node/286

We do not agree with USCIS' opinion/position expressed.

No, any percentage ownership will do, as long as other requirements are met. This is one aspect in which EB-5 case is better than an E-2 case. This means an EB-5 investor in a direct EB-5 case may have U.S. partners.

Unless you want to waste money and time by pursuing an investment which will not qualify for a direct EB-5 case, it is recommended that you obtain a thorough consultation from an experienced EB-5 attorney to do a pre-investment analysis. This will save you a lot of heartache, money and time.

Basically, an EB-5 investor needs to do not only a due diligence review of the planned business into he/she wishes to invest, but also whether and how he can meet the requirements of I-526 immigrant petition.

[Q] A foreign EB-5 investor is in the process of investing $1 million into a new U.S. company, and he has a U.S. citizen partner who is also investing $1 million. If the company creates 10 new jobs, does that mean the foreign EB-5 investor will get credit for creating 5 of those jobs?

Yes, all jobs created by both the foreign EB-5 investor and the U.S. citizen can be allocated to the foreign EB-5 investor. In addition, the foreign EB-5 investor does not have to be a majority investor.

[Q] The questions are as follows:

1) if I invest $500k where unemployment is 12%, Is it consider part of "Targeted Employment area"?

2) if I invest in Trouble Business where they lost 20% revenue, I still have to create 10 full time job.?

3) If I buy Motel for example & run through the property management company & management company will create 10 jobs in my investment will be still qualify on EB-5 category?

4) I am *** citizen & having E2 in my business in **, interested buying business under same corporation for EB-5 & would like to invest required $500k would work?

5) What they mean by Expansion or Re-structuring the existing entity?

6) what is your opinion on investing in Regionl Centers ? Since the investment is at "Risk", I don't see return on investment.

I would appreciate your response.

Answers are as follows:

1) if I invest $500k where unemployment is 12%, Is it considered part of "Targeted Employment area"?

Answer: An area is a TEA only if an authorized state agency or governmental body -- whatever that may be for each state -- says the area is a TEA. To be considered a TEA, the area must be either "rural" or have a "high unemployment rate".

2) if I invest in Trouble Business where they lost 20% revenue, I still have to create 10 full time job.?

Answer: If a new commercial enterprise qualifies as a Troubled Business, then you can "preserve" 10 full-time jobs, rather than create them anew.

3) If I buy Motel for example & run through the property management company & management company will create 10 jobs in my investment will that still qualify on EB-5 category?

Answer: Yes, as long as the property management company is the new commercial enterprise into which you invest the money. Basically, in your contemplated investment, you would have to form a holding company that operates as a property management company and then you would have to invest into this holding company which would also purchase a motel either by itself or through a wholly-owned subsidiary.

4) I am *** citizen & having E2 in my business in **, interested buying business under same corporation for EB-5 & would like to invest required $500k would this work?

Answer: Yes, as long as EB-5 requirements are met.

5) What they mean by Expansion or Re-structuring the existing entity?

Answer: You have to expand or restructure an existing business ONLY IF the business has been in existence before November 29, 1990. You should review the "Easy as EB-5" section above.

6) what is your opinion on investing in Regionl Centers ? Since the investment is at "Risk", I don't see return on investment.

Answer: You can't make a good profit on most regional centers, but they do have advantages.

I would appreciate your response

[Q] For a direct EB-5 case, can investor invest in a large apartment building, and then create a management company to run it? Job creation will be in the management company, while the funds will be mostly invested in the property. The strategy I believe, should be the investor invest in a holding company, the holding company then purchases the apt complex. The holding company will also create a management company to create the necessary job opportunities. Can this be done?

We don't see any problem, as long as the management company creates requisite jobs. Whether the underlying property is an apartment building or a shopping center, as long as the management company creates the jobs, that should be that.

[Q] What are some of things I have to ascertain or find out when I want to establish or purchase a business and pursue a direct, individual EB-5 case?

The first thing you have to determine or ascertain is whether the U.S. business qualifies as a TEA area. This is sometimes not an easy thing to do but is important, because if it's a TEA, then only $500,000 USD investment need to be made. However, this might sound good in theory, but in practice, $500,000 USD investment may not be sufficient to start or purchase a business and also create 10 new, full-time jobs that will not lose money for you.

Here is a general checklist:

1. Does the business qualify as a new commercial enterprise?

2. Does the business qualify as a TEA?

3. Can the business create 10 new, full-time jobs, not including myself and my family?

4. Will my fund qualify as lawful source?

No, all jobs have to be created directly in a direct, individual EB-5 case.

This question was answered by USCIS. See below link.

http://eb-5center.com/node/517

This means even if your previous investment was for E-2 visa purpose, as long as you meet the requisite investment amount and new job-creation, you should be able to meet the EB-5 requirements.

No, for two reasons. First, just buying a real estate and holding it is not considered to be a commercial activity. Second, how are you going to create 10 new, full-time positions through such investment?

However, if you purchased a shopping center or a golf course and added 10 new, full-time jobs within 2 years, then, yes, no problem.

Yes, as long as the business was established after November 29, 1990. But you have to remember that you cannot just take over the existing employees and meet the requirement to create 10 new, full-time positions, not including yourself and your family members.

You used to not be able to invest in an existing U.S. business to meet the requirement to establish a new commercial enterprise, but several years ago, the EB-5 law was changed to allow this, as long as the business was legally formed after November 29, 1990. See below link for USCIS' clear position on this issue:

http://eb-5center.com/node/160

Generally speaking, here are advantages of direct, individual EB-5 case over a regional center based EB-5 case.

1. You have more control (and responsibility) over the direction of the U.S. business which acts as a new commercial enterprise.

2. You can make a lot of money if the business does well.

3. You can decide when to fold or sell your interest in the business.

4. You can invest in an existing business, as long as job-creation requirement is met.

5. You can be more nimble and try to find an alternate solution when something goes wrong.

What are disadvantages of direct, individual EB-5 case compared to a regional center based EB-5 case?

1. You need to spend more time and effort on the operation of the business.

2. You need to take on associated potential liabilities of owning any business.

3. You have to also focus on keeping paper based evidences of job creation.

4. All jobs have to be created directly, and indirectly-created jobs or induced jobs cannot count. This is perhaps the biggest disadvantage of a direct, individual EB-5 case.

5. Your investment amount may well exceed $1 MM when running your own business.

6. If business fails, you can lose all your money.

Ultimately, the differences between the two types of EB-5 cases can be explained using an analogy of driving yourself on a trip or using Greyhound to get there. If you are a good driver, you have more freedom to take your business to a direction you want, but you have to be the driver and paying attention all the time.

We would say that a direct, individual EB -5 case is something you should consider only if you are competent in English language, U.S. business practices and willing to put in a lot of time and effort staying in the location of where you made your investment, and you are really motivated to own and operate your own U.S. business.

Yes, unlike an E-2 visa case, you can be a minority interest holder or owner of a U.S. business. For example, you can own and operate a U.S. business as a 10% owner, along with a U.S. citizen who owns the remaining 90% interest in the business. The other investor can be green card holder or another alien EB-5 investor also.

This is because for direct, individual EB-5 cases, project documents must also be prepared from scratch, tailored to the needs of the specific case. In addition, the alien EB-5 investor probably has to negotiate through business attorney or another professional many business and investment transactions before a direct, individual EB-5 case can be filed.

For regional center based EB-5 case, all these documents related to the project are pretty much prepared for you by the regional center operator, and all you need to do is focus on the preparation of lawful source documents, after you have done your due diligence and selected a particular regional center based EB-5 project.

There are many business consultants, including commercial realtors and other professionals. Our office does not have a list of U.S. businesses to offer to potential EB-5 investors, although we may refer them to other professionals without incurring any liability.

The first and obvious thing to find out before you make your investment is if any business would qualify as a new commercial enterprise and you will likely be able to meet all EB-5 requirements.

Right at this site (www.eb-5center.com) at:

http://eb-5center.com/direct_eb5

We especially recommend that you review the below site also to get a good grasp of basic concepts of EB-5 requirements.

http://eb-5center.com/easy_eb-5

We also advise, analyze, prepare and process direct, individual EB-5 cases. We would say about 60% ~ 70% of EB-5 law is the same for both direct, individual EB-5 cases and regional center based EB-5 cases; but they differ dramatically on some key requirements.

The answer given would depend on the person answering and the particular project, but in general, we would say direct, individual EB-5 case takes more work and effort, and is often more difficult to obtain green cards through direct, individual EB-5 case than a regional center based EB-5 case. The main reason for this is that for a direct, individual EB-5 case, it's not easy to create new, ten full-time jobs. Of course, it's not easy for a regional center based EB-5 project but RC based EB-5 project can count indirect/induced jobs.

The answer does not become clear unless you gain a better understanding of EB-5 law. Suffice to say that according to USCIS, over 85% of all filed EB-5 cases are regional center based EB-5 cases. There is a reason for this. This is not to say that alien investors cannot obtain green cards through direct, individual EB-5 case. It really takes different attitude and effort.

Either depending on whether the new commercial enterprise is located in a Targeted Employment Area (TEA). TEA concept is a separate concept from whether an EB-5 case is a regional center case. TEA determines the amount of investment that needs to be made.

This refers to an EB-5 case where you do not participate through a regional center based EB-5 project, and the alien investor himself makes an investment in a new commercial enterprise by himself or with other U.S. citizen or green card investors or with another alien investors and try to meet the EB-5 requirements.

Sometimes, this type of EB-5 case is also referred to as "direct, individual EB-5 case" or "individual EB-5 case".

Regional Centers -- Features, Benefits & Requirements (89)

Yes, there is no limit to the number of regional centers USCIS can approve within a state or city. Actually, in our opinion, USCIS should set a limit on the number of regional centers they can approve every year, due to budget and staff constaints.

It's akin to a model type project -- a model type of project hypothetical project. Actually, an "exemplar" project can be either a hypothetical or "actual, shovel-ready" project; and the current pre-approval process allows for the pre-approval of both types of projects via either "exemplar" pre-approval procedure or amendment pre-approval procedure. Therefore, the name "exemplar" does not indicate whether the underlying project is a model type of project or an actual project.

We feel the introduction of the "exemplar" concept just adds to the confusion and provides no benefit, because when the actual project comes along, you still have to submit a RC amendment just to confirm that the actual project fits within the "exemplar" project approval. Too time consuming and is needless. USCIS has to focus on providing certainty and avoid this kind of "cute" concepts and procedures. Real projects have no time to engage in this kind of time-consuming procedures which provide no practical benefit, unless USCIS is willing to allow any and all actual projects which fall under the parameters of the "exemplar" projects approved to be used as substitute projects to replace the initial project. We just do not see the need for pre-approving hypothetical projects. Just pre-approve "actual, shovel-ready" projects as fast as possible, and that should be fine.

Employees of retail tenants of a new shopping center project do not appear to fit neatly into any of the below definitions. I would think they have to be defined as "direct" jobs, but USCIS has yet to provide a clear answer to the question of where these jobs fall under.

Direct jobs are those jobs that establish an employer-employee relationship between the commercial enterprise and the persons that they employ. Regional centers typically use the RIMS II or IMPLAN economic models to determine the number of indirect jobs that will be created through investments in the regional center’s investment projects.
Indirect jobs are the jobs held by persons who work for the producers of materials, equipment, and services that are used in a commercial enterprise’s capital investment project, but who are not directly employed by the commercial enterprise, such as steel producers or outside firms that provide accounting services.
There is a sub-set of indirect jobs that are calculated using economic models that are known as induced jobs. Induced jobs are those jobs created when direct and indirect employees go out and spend their increased incomes on consumer goods and services.

Although it is legally permissible, practically, it is very difficult to divide up the pooled investment in multiple job-creating projects at the same time. USCIS' statements indicate as much.

In reality, not that much, because there needs to be some reasonable basis to go outside the regional center geographic area and count indirect/induced jobs effect. In other words, there needs to be some persuasive reason or evidence, and the geographic areas where a majority of inputs occur should determine the geographic area whose multipliers should be used.

Our opinion is that the "pre-approval" procedure is not that helpful, mainly because CSC takes too long -- 4 to 5 months -- to issue a pre-approval. This is puzzling because in the recent past, CSC had encouraged EB-5 practitioners to go through the "pre-approval" process to speed up the I-526 review/adjudication process.

Also, we heard that CCS is questioning even the RC based projects which they themselves pre-approved, undermining the entire pre-approval procedure.

As of March 12, 2011, we know at least one EB5 regional center possessing an extensive track record of both I-829 approvals and return of investments.

As of March 12, 2011, we know several EB5 regional centers with "many" (50 or more) I-829 approvals.

FL, CA, WA and NY states appear to have most number of EB-5 regional centers.

Legally speaking, there is nothing in the EB-5 law that says the entire United States cannot form a regional center geographical area. However, to date, there is no regional center with the entire USA as its scope.

Some regional center designations have also managed to include the entire state.

We think USCIS should allow the entire USA territories to form the base of its regional center designation in certain business structures.

Advantages:

1. Can "try" to be allowed to count indirect/induced jobs, in addition to "direct" jobs. This is a big advantage, as it is often not feasible to meet the 10 jobs per investor requirement by counting only "direct" jobs. This is why for a direct, individual EB-5 case, the jobs number should be reduced to something more reasonable, let's say 5 full-time jobs. In addition, it doesn't make sense not to be allowed to count part-time jobs.

2. Note both regional center based EB-5 project and direct, individual (non-regional center) project can "try" to do a TEA, i.e., $500,000 USD investment EB-5 projects.

Disadvantages:

1. Costs substantial money and time to get the regional center designation.

2. There are cumbersome reporting requirements set by USCIS.

First, take a look at the actual letter itself at: http://www.eb-5center.com/files/Mayorkas%20to%20Leahy%20on%20location%20...

Although this letter helps regional centers now to include additional jobs "estimated" to be created outside the regional center area, we are not sure to what extent CSC will comply with or give effect to this letter, although unofficially, a CSC officer has told us that they will honor the letter. Presumably, Director Mayorkas' letter amounts to a formal change in USCIS policy, but USCIS will probably not issue a formal guidance memo regarding this policy change. We confess it is getting to be extremely difficult and confusing to ascertain what is USCIS policy on any EB-5 issue. In addition, we are not certain that all CSC examiners are aware of what the exact current USCIS policy is on important EB-5 issues such as this.

Although this letter is helpful to regional centers, it does not change the fact that the letter's analysis is flawed in its logic. We believe a regional center designation inherently implies that only those jobs creation effects arising within its regional center geographic area should be counted.

Specifically, although there is nothing in the EB-5 statutes or regulations which specifically prohibit indirect/indirect jobs OUTSIDE the regional center's geography from being counted for I-829 petition, there is nothing in the EB-5 statutes and regulations which allows it either. In other words, it's up to USCIS to choose to go either way. Up to this point, USCIS' favorite way of not allowing certain reasonable EB-5 policies was by saying "There is nothing in the EB-5 law/regulations that specifically allow such proposal." Let's be honest: How many times have USCIS officials uttered these very words to dismiss some very good proposals that actually make sense for the EB-5 Program? We personally have asked USCIS officials during EB-5 Stakeholders Meetings why certain position is not being adopted by USCIS, and USCIS officials always answered our questions with the words: "Well, we would like to, but we believe EB-5 statutes and/or regulations do not specifically permit such policy." However, USCIS is now suddenly and completely reversing its position? If so, there are many more important EB-5 issues on which USCIS should reverse its positions, not just this one.

More logically, USCIS could easily have accomplished the same thing by allowing the entire USA and Territories to count as the regional center area. In fact, there is nothing in the EB-5 statutes or regulations that specifically states that the entire USA and Territories cannot form a regional center. In effect, the job calculation methodologies are going to use the entire USA and Territories as the applicable geographic area to take advantage of the new policy under the letter. This letter will in practice make the current policy of limiting a regional center geographic area almost meaningless because most of the job-calculation methodologies are really designed to count indirect/induced jobs WITHIN the regional center area. Be prepared for some job calculation methodologies to go into a twilight zone, because now even indirect/induced effects of job creation taking place in Guam even though an underlying project takes place in Maryland can count.

Again, the most paramount thing is for USCIS to be consistent and not penalize regional centers and EB-5 investors who followed certain methods or procedures when there was no formal policy on certain issues. This is more important than "liberalizing" the regional center program by expanding jobs which can be counted. Without consistent policies and adjudication, the confusion will reign.

The best thing USCIS can do is be consistent; clearly communicate its positions on important EB-5 issues; do not penalize regional centers and EB-5 investors where they took certain actions at a time when there was no clear or formal policy on the very issue; and adjudicate EB-5 cases fairly and consistently.

Otherwise, the Congress and USCIS should just do away with the EB-5 Program entirely.

Don't bet on it. Getting a pre-approval for a regional center based EB-5 project will not lead to quicker adjudications of I-526s or guarantee approvals. At best, having a pre-approval will probably increase the likelihood of CSC examiners approving I-526s, but no guarantee.

Contrary to many regional centers' statements, getting a pre-approval for the underlying EB-5 project in advance does not mean I-526s will be approved more quickly. Basically, it might, but not necessarily. Is that confusing enough for you?

No. USCIS doesn't have the resources or staff to really do this kind of stuff. The reason? All the money received from EB-5 cases do not go into supporting EB-5 services, but instead, get drained for usage in other areas of immigration. Therefore, large filing fees for EB-5 cases do not lead to better services for EB-5 cases.

No, any individual willing to spend money can set up a regional center. Theoretically, even a person who previously has a fraud conviction can set up a regional center.

Good try, but USCIS has rarely even approved the entire single state as a regional center, although it has done so in a few occasions. One legal reason for this is that the regulations require the regional center area to be "contiguous" area. A practical reason might be that USCIS just doesn't want to allow the entire USA to be a regional center area, although I must admit there is no per se legal reason why USCIS cannot approve the entire USA as a single regional center geographic region.

I actually think USCIS make it easy on themselves and allow the entire USA to be a regional center geographic area in certain cases where projects are likely to arise all across the USA. It would be a waste of time to force the regional center applicant to file the same application for each state.

Yes and no. It's true that USCIS has reviewed their regional center designation application and approved the general parameters of the approved regional center application. However, the fact that a specific EB-5 project is carried out pursuant to the approved regional center does not guarantee approval of I-526s submitted for that specific project because:

1. USCIS still has to review the project to see if it complies or is consistent with the regional center parameters.

2. USCIS could decide that the approved regional center was approved by mistake or oversight and should be amended.

3. Even when USCIS approved the regional center structure, and a particular project complied with the approved regional center structure, USCIS can at any time change its mind and deny I-526 petitions -- which leads to confusion and inconsistency in the adjudication of EB-5 cases.

First, because you as an investor is a limited investor, you will not have the right to manage on daily basis. You will have the right to vote as a limited partner on important decisions facing your investment and immigration status. This cannot be helped as if each limited partner investor had the right to do as he or she wishes, there would be no way to run a project.

Second, the limited partner investor's investment is locked in for a certain period of time, usually for 5 years. This also cannot be helped because if every investor had the right to pull out their investments, the project could not be run properly.

Let's look at what USCIS has said on this issue.

Once USCIS approves a proposal for Regional Center designation, the Regional Center does not have the flexibility to accept a project or offer investment options outside its original application area of operation. If the Regional Center wishes to pursue a project outside its original application area of operation, an amendment must be filed with USCIS. There is no requirement to include an exemplar I-526 document when filing an amendment for a Regional Center. We have not seen many of these yet, but we have issued a couple of amended Regional Center approvals. At this time, it is too soon to determine if having the exemplar documents along with the I-526 make it easier to adjudicate the I-526.

In some cases, USCIS may approve a proposal for Regional Center designation when an actual investment project does not yet exist. The approval is therefore based upon a hypothetical investment project. If this is the case, when the immigrant investor files Form I-526 Immigrant Petition by Immigrant Entrepreneur, an analysis will be done to determine if the actual business plan provided in support of the Form I-526 comports with the hypothetical business plan provided in support of the Regional Center application. For example, a Regional Center may have a hypothetical plan to build assisted living facilities. Although the geographic location of these assisted living facilities has not been identified, the hypothetical business plan demonstrates the logistics and feasibility of building the facilities within the geographic area of the Regional Center. Since the business plan does not relate to an actual project, it is considered a hypothetical investment project.

It is a new form proposed by USCIS and a draft was circulated by USCIS for comments. As of September 16, 2010, we did not hear that the form became official. The form is supposed to be used as the application form to apply for a regional center designation and to make amendments to the designated regional center. Now, some EB-5 practitioners believe the real reasons for the form are:

1. To collect more fees: there currently is no fee for regional center designation applications or amendments.

2. To impose more requirements, such as having to get a renewal designation every 5 years, etc.

3. To slide in additional substantive EB-5 requirements.

[Q] USCIS appears to be using a term "capital investment project", but I can't find this term in the EB-5 regulations. What does the term "capital investment project" mean anyway?

The term "capital investment project" is a term -- not mentioned in either EB-5 statutes or regulations -- made up by USCIS to deal with a regional center based project where often there are two entities involved: new commercial enterprise and the job-creating entity. Really, the "capital investment project" is the job-creating entity to which the new commercial enterprise must either invest or give a loan to and be received and used by the same job-creating entity in activities which create jobs.

Because Matter of Izumii already refers to a job-creating entity in the same context, USCIS did not really have to come up with a new fancy term called "capital investment project", because having another term just confuses things.

For a Regional Center case involving a TEA investment, the question asks where the new commercial enterprise entity and the job-creating entity (which USCIS confusingly is referring to as the "capital investment project") must be located.

* key words: location of new commercial enterprise within TEA or principal place of business in TEA?

Legally, we would say the location of the new commercial enterprise does not matter (per Matter of Izumii), but USCIS appears to be requiring that the new commercial enterprise does its business principally in the TEA area. Here is the background on how this new issue arose.

During June 16th 2010 stakeholders meeting, USCIS stated that while the capital investment project (better to call this entity the job-creating entity because no EB-5 case or law ever referenced anything called "capital investment project", whereas the term "job-creating entity" has been referenced in the precedent Matter of Izumii case) which actually creates the required jobs have to be in the TEA area, the new commercial enterprise entity receiving aliens' capital contributions must be doing business principally in the TEA area. USCIS has declined to define what kinds of evidence must be submitted to show that the new commercial enterprise is principally in the TEA area. Note this does not mean that the new commercial enterprise entity has to be physically located in the TEA area; there is a difference between the actual physical location vs. the location where it is doing business principally.

This position will create another troublesome issue as to what constitutes sufficient evidence of "doing business principally" in TEA area. Also, we are not sure Matter of Izummi holds this. Our understanding is that Izummi does not require a new commercial enterprise entity to be located in the TEA area. Let's take a look at what Izumii case actually says because I find that often times what USCIS says the case holds is misleading:

(1) Regardless of its location, a new commercial enterprise that is engaged directly or indirectly in lending money to job-creating businesses may only lend money to businesses located within targeted areas in order for a petitioner to be eligible for the reduced minimum capital requirement.

(2) Under the Immigrant Investor Pilot Program, if a new commercial enterprise is engaged directly or indirectly in lending money to job-creating businesses, such job-creating businesses must all be located within the geographic limits of the regional center. The location of the new commercial enterprise is not controlling.

Now, does the above content seem like Izumii case cares about where the new commercial enterprise is located? We don't think so, but that's not what USCIS says. USCIS is probably relying upon 8 CFR 204.6(j)(6) which says:

(6) If applicable, to show that the new commercial enterprise has created or will create employment in a targeted employment area, the petition must be accompanied by:

(i) In the case of a rural area, evidence that the new commercial enterprise is principally doing business within a civil jurisdiction not located within any standard metropolitan statistical area as designated by the Office of Management and Budget, or within any city or town having a population of 20,000 or more as based on the most recent decennial census of the United States; or

(ii) In the case of a high unemployment area:

(A) Evidence that the metropolitan statistical area, the specific county within a metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150 percent of the national average rate; or

From the above, USCIS could logically argue that although it does not matter where the new commercial enterprise is located (Izummi), the new commercial enterprise entity must be principally doing business in the TEA area.

* Note that USCIS has stated nothing it says during any meeting or in guidance memos creates any legal right in dispute or litigation with USCIS. However, you can bet CSC examiners will rely upon such "opinions" expressed by USCIS. Basically, USCIS' opinions, even if unreasonable and not supported by the EB-5 law, will carry the force of law in so far as how CSC examiners must adjudicate EB-5 cases. :)

No, but it can certainly invest the capital contributions received from alien EB-5 investors into a non-profit, job-creating company's project which would in turn create new jobs. Read Matter of Izummi, AAO precedent case. The precedent AAO case says it can, so that should be that.

Investment structures of various regional centers differ because of different industries their EB-5 projects are involved in, offering documents, job-calculation methodology and capital investment structures contained in regional center applications submitted to and ultimately approved by CSC.

From a broad perspective, approved regional centers can be divided into two types of investment structures: the controlling New Commercial Enterprise entity engages in EITHER full or part equity participation or the controlling New Commercial Enterprise engages in lending activities. There are advantages and disadvantages in both kinds of investment structures, depending again on the nature of projects.

Therefore, although one can say investment structures of regional centers are pretty much similar, different EB-5 projects can vary in important aspects.

The best analogy we believe in comparing regional centers is comparing cars. The same manufacturing company can own and operate several brand names, and each brand car has slightly different emphasis that appeal to different consumers.

Yes, it's called IIUSA, and their website is at: www.iiusa.org. There is an annual fee, and members of the IIUSA are composed of regional centers and immigration attorneys and other professionals who work or are interested in the area of regional centers. Anyone interested is encouraged to contact IIUSA directly for more information.

[Q] What is USCIS’ position on whether and when jobs have to be created for regional center projects at either the I-526 stage or the I-829 stage? What is USCIS’ specific legal basis for these positions?

USCIS Answer: We hope that we have answered this in the June 17 memo:

http://www.uscis.gov/files/nativedocuments/eb5_17jun09.pdf.

EB-5 Center comments: The above is an important USCIS guidance memo. Not only do requisite 10 full-time jobs have to be created, but they have to be created within the requisite time as set forth by USCIS. Therefore, not only "how many" but "when" are controlling questions. This all goes to show you that it's not easy to set up a good EB-5 regional center based EB-5 project.

[Q] Practitioners are concerned that there is little certainty on which investors can rely in assessing job creation. After a regional center’s job creation methodology is accepted in deciding the regional center’s charter, RFEs on I-526s and I-829s question the same methodology and economist reports repeatedly. People are frustrated that they have to repeatedly prove the same methodology for indirect job creation. For example, a regional center’s economic model is accepted for I-526s for numerous projects and then it is questioned again in I-829s, long after it was accepted for other I-526s in the same project. Can Headquarters help with creating more consistency in adjudications?

USCIS Answer: We know that this is an issue. This was addressed in the June 17 memo: http://www.uscis.gov/files/nativedocuments/eb5_17jun09.pdf. At the I-829 stage the inquiry is limited to assessing milestones that were predicted at the I-526 stage of the process. Example: at the I-526 stage the plan was to build a shopping center and lease out the space. At the I-829 stage we would want to know if the space had been substantially leased as predicted. In the alternative, if jobs were predicted based on total expenditure, we would want to know if the funds had been spent as planned. Presently, USCIS is in the process of drafting another guidance memo which will clearly state what will be adjudicated and when (at which stage of the process). Our goal is to not “re-adjudicate” issues previously decided in instances where circumstances remain unchanged.

Yes, if a particular regional center no longer serves the purpose, and inactivity could be the reason for such action. However, no particular inactive period is used, and any decision will be made on a case-by-case basis.

Practically, USCIS does not have sufficient staff to really oversee the activities of all designated regional centers. Therefore, any revocation or notice of termination of already-given designation will be very rare.

[Q] What factors are considered in determining whether the necessary jobs will be created within a “reasonable time” in adjudicating an I-829 petition, per 8 C.F.R. § 216.6(a)(4)(iv)? Section 25.2(e)(4)(D) of the Adjudicator’s Field Manual lists some factors in making the reasonable time determination, but how do CSC adjudicators apply those factors in actual cases? For example, what if a regional center has an approved job creation methodology, proof that the investment has gone into the project, and has leased up the project but the tenants have not moved in when the I-829 is filed? What if the project is almost but not completely leased? Will USCIS approve an I-829 in such a case? If so, what documentation would be required?

USCIS' answer is as follows.

CSC adjudicators follow the guidance put forth in the Adjudicator’s Field Manual (AFM) at section 25.2(e)(4)(D), which states:

In making the “reasonable time” determination, officers should consider the evidence submitted along with the petition that demonstrates when the jobs are expected to be created, the reasons that the jobs were not created as predicted in Form I-526 , the nature of the industry or industries in which the jobs are to be created, and any other evidence submitted by the petitioner.

If after considering the evidence, the officer determines that the jobs are more likely than not going to be created within a reasonable time, Form I-829 should be approved consistent with 8 CFR 216.6(d)(1) if the petitioner is otherwise eligible to have his or her conditions removed. If, however, the officer determines that the jobs will not be created within a reasonable period of time, Form I-829 should be denied consistent with 8 CFR 216.6(d)(2) .

CSC adjudicators apply the factors outlined above when analyzing the facts in each individual case using the preponderance of evidence standard. Note: It is not possible to answer “what if” questions such as this question in the abstract. Whether a particular case will be approved is dependent upon the determination of eligibility, based upon the specific evidence of record.

[Q] Based on the USCIS June 17, 2009 memo regarding EB-5 job creation, it is our understanding that USCIS has accepted the use of economic models that are based on infusion of capital into a particular industry. Please confirm that if such a model is used to calculate job projections at the I-526 stage, an investor would receive credit for job creation at the I-829 stage simply by establishing that he/she invested the requisite amount into the new commercial enterprise, and that the new commercial enterprise spent that capital, regardless of any data about actual job creation.

See USCIS' own answer on this issue. The answer is "yes", but such spending methodology should be detailed and not be based on a flimsy data or structure.

This form of capital investment involves more than simply investing a certain amount of investment dollars into a particular industry. An important aspect to any economic analysis model is the feasibility and quality of the business plan that is the basis for determining the appropriate inputs into an economic model, such as RIMS II, IMPLAN, etc. If the infusion of capital occurs according to the approved business plan and economic analysis, and the capital investment scheme comes to fruition in the manner outlined in the business plan, then the economic data provided in support of the Form I-526 petition regarding indirect job creation may be sufficient to demonstrate the creation of the indirect jobs without the submission of further data about job creation at the Form I-829 petition stage.

[Q] Where a new commercial enterprise such as a large mixed-use commercial real estate development wishes to file a regional center application after some EB-5 investors have already invested in the same project under the regular EB-5 program, please confirm that it is permissible for a regional center proposal to be submitted for the new commercial enterprise in this situation as long as the economic impact analysis report indicates that the number of direct jobs already allocated to EB-5 investors under the regular program are not “double-counted” for subsequent investors under the regional center program.

USCIS' answer?

Yes, as long as the jobs are not “double-counted.”

[Q] At the October 19, 2009, AILA EB-5 conference in San Francisco, CSC officials indicated that an acceptable EB-5 investment in a regional center context may consist of an equity investment in a commercial enterprise that in turn makes a loan with the invested capital to a borrower. CSC officials also appeared to state at the conference that the commercial enterprise could receive a guarantee from a third party that the borrower would repay the borrowed funds to the commercial enterprise. Please confirm that this is acceptable. It should be, since even a third party may not be able to pay the guarantee (e.g., AIG). Similarly, the borrower may not be able to repay the commercial enterprise, even if it receives money from the third party (e.g., General Motors). Also, does it matter whether the third party guarantor is a private insurer, bonding company, or a government entity?

Let's see what USCIS says clearly on this issue, and then our comment.

Yes, there is currently nothing in the statute or regulations to preclude the guarantee from the third party as long as the alien investor’s capital is still “at risk”, and the arrangement does not constitute a redemption agreement or a guaranteed buy-back arrangement for the alien investor’s investment in the commercial enterprise. A determination as to whether a specific third party guarantee is contrary to the statutory and regulatory requirements has to be made on a case-by-case basis.

Actually, whenever USCIS says there is "nothing in the statute or regulations", they can go either way. In other words, USCIS could have prohibited such arrangement based on the same rationale that there is "nothing in the statutes or regulations" which specifically permit such arrangement. Actually, USCIS should have held that where such third-party guarantee falls within the "standard commercial practice", it is permissible.

USCIS interprets the set aside of visas to ensure that a minimum of 3,000 visas are available for regional center based applicants. We do not see the set aside as limiting the number of visas that can be granted to regional center based applicants.

This is a good news for regional center program; therefore, up to 10,000 IV numbers per annum is available to regional center cases. Assuming an average family number of 4 members per 1 family, this means a maximum of 2,500 families per annum can obtain immigrant visas via regional center EB-5 program.

[Q] For regional center projects, do indirect jobs created outside the regional center's geographic area count? For example, a regional center may be approved for Los Angeles County. The regional center’s first project may be a bakery located in Los Angeles County, and direct jobs are created in that county. The economic model, however, may not specify where indirect jobs are created. The flour distributing company that has to hire an additional employee to transport flour to the Los Angeles bakery may be located in Riverside County, for example. We believe that an indirect job in such circumstances should count for EB-5 purposes. Please confirm.

Because this question is such an important one in context of regional center based EB-5 cases, let me quote the USCIS' answer in its entirety. In short, the answer is a clear "no". And a regional center better expand its underlying regional center's geographic area if it wants to count direct and indirect jobs created outside the current regional center area.

Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note), as amended states that: “A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones.” While the regulation at 8 CFR 204.6(m)(3) provides that each regional center must describe “how the regional center focuses on a geographical region of the United States,” USCIS interprets the statutory and regulatory prescribed focus to mean that the economic analysis methodology used by regional centers should also be focused on job creation within the bounds of the regional center. [See also Matter of Izummi.] As a result, a regional center should file an amended proposal seeking an expansion of the geographic area of the regional center if it wishes to include job creation within its economic models in areas outside of the bounds of the regional center.
Note: Regional economic impact models have limitations; one of the biggest is that they ARE regional in nature, so if most of the direct inputs are not locally produced the user of the model must account for this in their calculations. Problems occur when people misuse models like RIMS II by using data that is not limited to the area that is the focus of the regional center, but then claim job creation within the bounds of a regional center. The BEA defines geographic region as the area that will supply the majority of the direct inputs of production (including labor). So, if in the above example, if the RIMS II data for Los Angeles County was used in the economic impact analysis it will not tell you about an indirect job in Riverside County or any other County. The use of economic data, such as RIMS II input/output tables for areas outside of the bounds of the regional center does not accurately assess the impact of economic activity within the regional center.

In regard to direct jobs, it's safe to say that the direct jobs created outside the underlying "region" will not be allowed to count.

As to "indirect" jobs created outside the underlying "region", it's not clear in context of a regional center based eb-5 case, but in our opinion, these indirect jobs created outside the underlying region probably will not or should not be allowed to count, because the underlying regional center geographic area boundary seems to imply that only the jobs (whether direct or indirect) created within the underlying region should count. As far as we know, USCIS has, to date, not issued any formal guidance on this specific issue in regards to whether indirect jobs created outside the region should be counted. It seems to us counter-intuitive if indirect jobs created outside the underlying region are counted, but as we stated several times before in this site, the EB-5 law is whatever USCIS says it is on these unclear points.

A related issue is: Isn't it wiser to allow indirect jobs created outside the underlying region to be counted, because after all, jobs are jobs? But then, an equally strong argument could be made that if only the direct jobs created within the underlying region are counted, why should indirect jobs created outside the region be counted? After all, a regional center should have a geographic region, and the purpose of the regional center program is to foster jobs within these regions, not all over the place, although any jobs located in the U.S. is a good thing. This goes to show you that there are many EB-5 issues which are still unsettled.

Anyway, we heard that USCIS even has a part-time economist now, so we don't know how things will change in job-counting area. This is why we personally believe USCIS should sit down with regional centers and decide on one or several conservative, permissible methodologies that are acceptable to USCIS.

In addition, this highlights the fact there is a greater need for a more thorough review of regional center designation applications and a pre-approval procedure for EB-5 regional center project. It also raises a question whether it is reasonable to expect or require CSC examiners to become well-versed in very complex economic methodologies when they are already burdened with a lot of work? But this is why a pre-approval process is needed, to avoid inconsistent results that no one wants to go through.

Of course, the question already assumes that a particular regional center has been designated as a regional center by USCIS for an investment structure involving pooling funds from investors and using such fund to make loan(s) to job-creating business(es). Otherwise, the answer would be "no". With this understanding, see below.

This question had already been answered in the affirmative by the precedent AAO case, Matter of Izummi case. Basically, a Regional Center project can form a limited partnership and receive capital contributions from individual EB-5 investors and then the limited partnership, as a new commercial enterprise, can make a loan to a job-creating business or businesses, as long as such investment structure has been submitted and approved by USCIS as a regional center.

Also, during October 19th 2009 AILA EB-5 Conference in San Francisco, CSC adjudicating officers present at the panel again specifically confirmed that "third-party" guarantee of the loan made by a limited partnership to the job-creating borrower (but not any guarantee on investor's investment into a limited partnership) is also permissible. Basically, we believe that any such guarantee has to fall within the real-world, commercial practices.

We would guess that anywhere between $50,000 USD to $100,000 USD plus a lot of effort and time (currently 5 to 8 months) are needed to obtain a regional center designation from USCIS. Contrary to popular belief, anyone can obtain a regional center designation. However, successfully operating a designated regional center is NOT easy. Many are under a mistaken impression that once a regional center designation is obtained, foreign EB-5 investors will start pouring money into their regional center, but nothing could be further from the truth. The potential EB-5 investors are not dumb.

In short, we believe and noticed from a distance that running a relatively successful regional center is very difficult, and one needs to put together a team composed of various professionals from different backgrounds and skills in order to succeed. You need to be a lawyer, business man and marketer -- and execute well -- in order to succeed in the long run.

As of March 3, 2011, there are over 100 regional centers designated by USCIS, and there are more than 50 regional center applications pending. This means within one-year time, there may be over 150 designated regional centers. Note that not all designated regional centers are active, and the track records vary greatly among designated regional centers.

Does this increase of regional centers mean that the EB-5 regional center program is a huge success? No. It just means the economy sucks, and there are some desperate developers looking for low financing. Also, a few regional centers did well, so every new regional center thinks that it can do just as well.

USCIS has accepted such methodologies as IMPLAN, RIMS II, REDYN and REMI. Job creation studies vary from project to project and that the more specific and conservative the study, the more likely that the assumptions that the predictions are based on will be met.

[Q] A "fund" style Regional Center involves offering multi projects in which investors' funds will be spread around, similar to mutual fund. Is there any restriction imposed by USCIS?

USCIS recently announced during September 16, 2009 Stakeholders conference that this type of fund Regional Center must state at I-526 petition submission stage what projects the investors will be investing in. This appears to mean the projects' descriptions cannot be general in nature, such as "will be invested in hotel construction and/or shopping center construction" but must be specific description. The logical rationale for this policy is to make this "fund" type of regional center to have specific projects set up for investors' participation, instead of the other way around. However, in the real-life commercial context, it's very, very difficult to line up multiple number of EB-5 projects in which investors' funds will be spread around.

A flippant answer would be "too many", and my honest and serious answer would be "too many for the current EB-5 market demand". There are around 50 or more designated regional centers scattered throughout the U.S., but my feeling is there are greater number of regional centers which are kinda inactive.

I have been saying this for some time, but here I go again: "Regional Center market will grow and shrink depending on what USCIS and Congress will do and not do." To reach the next level of growth, EB-5 Regional Center Program needs to be made permanent quickly and USCIS EB-5 HQ (overall policy setting division) and CSC (adjudicating division) need to work closely together to make reasonable, consistent and sensible decisions that are in keeping with the fundamental purpose of EB-5 Regional Center Program.

Although USCIS-designated RCs involve numerous industries or targeted business areas, they generally use one or more of the below investment structures permissible under the EB-5 law. It should be noted that limited partnerships formed pursuant to the Uniform Limited Partnership Act of applicable states are used by most RCs because the entity allows for participation by multitude of EB-5 investors.

1. Form a limited partnership to "pool" capital contributions from individual EB-5 investors and then use the total funds to make an equity investment (and receive equity stake) in a job-creating business.

2. Form a limited partnership to "pool" capital contributions from individual EB-5 investors and then use the total funds to purchase a real property and/or make substantial renovations to attract commercial tenants who create new jobs.

3. Form a limited partnership to "pool" capital contributions from individual EB-5 investors and then use the total funds to make equity investment in a business entity developing a real estate project.

4. Form a limited partnership to "pool" capital contributions from individual EB-5 investors and then make loan(s) to job-creating borrower business(es) operating in various industries, including developing real estate projects.

Now, there are advantages and disadvantages with any one of the above investment structures (the structure of the specific EB-5 project has to be closely examined); but generally speaking, the trend of the investment structure utilized by RCs appears to be moving towards the number 4. Also, the trend set by various leading RCs appears to be moving towards big projects.

No, absolutely not. To our knowledge, no RC Program is carrying on this kind of investment structure involving individual EB-5 investors lending directly to a job-creating borrower entity for at least three reasons: 1) it's against EB-5 law; 2) no RC Program would be this ignorant; and 3) USCIS will not approve a regional center with such investment structure. :)

Having said this, however, pursuant to a precedent AAO decision, Matter of Izumii, it is permissible for individual investors to invest (or contribute capital) in a limited partnership which can then lend that money to job-creating business carrying out a project that creates jobs either directly or indirectly (or induced), to foster an economic growth and job-creation in a particular geographic region. In other words, the limited partnership can engage in lending activity.

We believe designated RCs now generally are pretty careful to follow all requirements of EB-5 law, especially in light of the EB-5 RC Program's checkered history.

This is one of misconceptions about the Regional Centers. No government (either federal government, state, city or even a village) "sponsors" the RC. Therefore, if anyone tells you their program is a government-sponsored RC Program, it's somewhat misleading. Now, some RCs work with state or city quasi-governmental economic development agencies; we hope people understand that these quasi governmental economic development agencies are not the same thing as the state or city.

Now, is the RC Program which work with a particular economic development agency of a city or a state somehow "better" than other RCs? Not necessarily. It's like asking whether you prefer any project to be run by a government rather than Google, Comcast, Microsoft, Walmart or any well-run private company? It all depends. We are not saying, however, that govt-affiliation has no advantages at all.

[Q] Some RCs and/or attorneys take the position that for RC EB-5 case, job-creation needs to be shown only at I-526 petition through use of "reasonable" methodology. Is this true?

No, it's not as simple as that -- far from it. USCIS has already spoken very clearly on this issue through its carefully-crafted June 24th 2009 Neufeld guidance memo and USCIS' responses to Ombudsman's EB-5 recommendations. Basically, USCIS stated that although a "reasonable" methodology can be used at I-526 petition stage to estimate a future job-creation number, the underlying assumptions and/or variables on which the future job numbers were based will be re-examined at the I-829 stage by USCIS examiners, although the methodology itself will not be re-examined. In our opinion, this was the only position USCIS could have taken. Anyway, do not rely on our answer here; read the Neufeld guidance memo and USCIS' response to the Ombudsman's EB-5 recommendations and then decide for yourself what they say.

Even if all the jobs are created indirectly, underlying key assumptions and/or variables must be verified at the I-829 stage. We would actually love it if USCIS takes the position that it will not check the underlying assumptions and/or variables at the I-829 stage, but that just is NOT going to happen in our opinion, unless EB-5 statute itself is amended by Congress. As long as the EB-5 Program's underlying purpose is to create jobs, then USCIS is not going to budge from this position -- unless EB-5 statutes are amended.

Let me give you an example. Assume I-526 petition contains an IMPLAN methodology stating that within 3 years 300 direct and indirect jobs will be created in the applicable geographic region, based on spending of $100 Million and based on 70% occupancy by commercial tenants. Now, the economist who wrote up this job-creation estimate studies probably did a good job, but if you were USCIS, wouldn't you want to check at the I-829 stage that at least $100 Million was spent and there is 70% occupancy rate? If you answer "no", you are either a very nice guy or don't really care about the job-creation. In our opinion, if you don't check whether the assumptions actually were met at the I-829 stage, you will see all sorts of methodologies with inflated job numbers submitted at the I-526 stage, never to be reviewed. [I actually think they should lower the require job number from 10 to 5, but Congress, not USCIS, has to do this through statutory amendments.]

Lastly, USCIS has always been pretty clear on this issue ever since RC Program re-emerged in 2003; therefore, it's not as if USCIS ever stated otherwise or misled anyone on this issue. Having said this, we would be just fine with any statutory amendments doing away with this requirement, but we just don't think this will happen. The day it does happen, we will stop the operation of this website and we might even try to set up a RC Program of our own. :) Just kidding. Anyway, we would recommend that the required job numbers be lowered to 5 from 10 and make it easier for RCs and regular EB-5 projects to meet the job requirement. We actually think having to create 10 full-time jobs is an outrageous requirement now days, especially for non-RC EB-5 project. I think American public and politicians will also support this change.

Am I going overboard when I say that any immigrant who creates even 5 full-time jobs should not only be given green card but be toasted by the Americans living in his neighborhood?

[Q] Are there constraints on the kinds of job-calculation methodologies that can be used for RC-based EB-5 projects?

Pursuant to EB-5 regulations, any "reasonable" methodology may be used to calculate direct, indirect and induced job-creation resulting from investment, but according to recent USCIS guidance memos, including the Neufeld guidance memo of June 17, 2009, the methodology utilized by the RC Program should contain the time-frame before expiration of which the requisite jobs are supposed to be created. Therefore, the requisite jobs cannot be created 4 or 5 years down the road. It is strongly recommended that the Neufeld memo be reviewed for details. See www.eb-5center.com/node/382.

[Q] USCIS already stated that indirect and/or induced construction jobs may be credited for I-829 purposes, but had not taken a formal position on the issue of whether direct construction jobs may count. This is the first time that USCIS was forced to take a clear stance on this issue.

Both direct, indirect and induced construction jobs may count, as long as certain conditions are met. USCIS said in one of its letter responding to Senator Cornyn that construction-related jobs can count as direct jobs only if such positions lasts for 2 years or more. Not very likely due to the nature of construction jobs. Review the recently-issued Neufeld guidance memo for details. See www.eb-5center.com/node/382.

Curiously, CSC examiners appear to be not following their own issued AFM by not counting indirect/induced construction jobs based on spending where construction activities do not last more than 2 years. This issue is in flux so no one knows what is the law. That's the problem with the EB-5 Program according to many EB-5 practitioners -- no one knows. And different examiners appear to be deciding differently.

It should be noted that this new policy overrides the holding in the federal district court case called Spencer case; this shows that USCIS can override past decisions if it wants to.

Personally, if I were USCIS, I would not have allowed the counting of direct construction jobs for the following reasons:

1. For clarity sake, to avoid hazy issue of when the construction begins or ends.

2. For the protection of EB-5 investors who might get sucked into a project which counts direct construction jobs but cannot come up with the paper work to evidence direct, construction jobs at the I-829 stage. This is the biggest concern for me. EB-5 investors can get suckered into various projects which attempt to count "direct, construction jobs" and then at the I-829 stage, find out that the EB-5 project cannot come up with adequate documents to satisfye USCIS that these direct construction jobs really last more than two years and are full-time jobs. Harder said than done. And believe me there are many economists, attorneys and developers who will make it sound so easy.

3. In some sense, USCIS is doing a favor allowing indirect/induced construction jobs to be counted (even though these effects from indirect/induced construction jobs are not permanent lasting), so allowing direct construction jobs to be counted is an overkill or being too generous.

Yes, the Featured RCs work with well-known, third-party banks to open escrow account for each EB-5 case. This is very important to make sure that the EB-5 investor's escrowed funds are released only pursuant to the agreed-upon terms and conditions in the escrow agreements with the full advance consent of EB-5 investors and also in compliance with the EB-5 law.

No, absolutely not. No EB-5 Regional Center, Limited Partnership or any immigration attorney handling your EB-5 Project is allowed to "guarantee" the return of the investment amounts directly to individual investors. That would be not only be against EB-5 law but unethical and seriously dumb thing to do.

However, it is well-established under the EB-5 law (Matter of Izummi, a precedent AAO decision) that the Limited Partnerships can make loan(s) to a job-creating borrower-entities, and when the Limited Partnerships make loan(s) to borrower-business, that borrower can and do issue signed documentary promissory notes and/or loan agreements to the Limited Partnerships which act as lenders. That's how the loans are made in the real commercial world. In other words, commercial rules and practices of how business is done in the real world govern. However, these loan agreements or promissory notes to the Limited Partnerships are only strong as the borrowers' financial conditions are, and these are not direct guarantees to the individual investors by these borrowing companies or lending Limited Partnerships; they are promises by borrowing, job-creating company to repay the loan amount to the lending limited partnership. This is how loans are made in a real world.

Some do, some don't. It can be good or bad. I would say working with incompetent government agencies is worse than not working with them, but working with good government agencies is better than not working with them.

Every year, there are 10,000 immigrant visa numbers (the 10,000 number includes immigrant visas for dependent family members) available for investors and their dependent family members. Out of this 10,000 immigrant visa numbers per annum, 3,000 is set aside for applicants who invest in TEA cases, and additional 3,000 is set aside for applicants who invest in Regional Center cases. This means if you assume each Investor has 3 dependent family members, there are only enough Immigrant Visa numbers per annum for approximately 2,500 EB-5 cases. This isn't that much. Practically speaking, since most RC cases are also TEA cases, there are at minimum 6,000 immigrant visa numbers available for RC/TEA cases, which translates into 1,500 RC/TEA cases. This also is not all that many.

According to the information disclosed by USCIS during February 27, 2009 stakeholders meeting, Regional Center EB-5 cases compose of approximately 90% of all EB-5 cases filed with USCIS. This is in line with our personal experience. The problem is that USCIS does not keep a clear stats on RC vs. non-RC cases; therefore, this is an estimate. However, we are almost certain RC EB-5 cases will continue to make up at least 80% + of all EB-5 cases filed with USCIS. The reason? Good RC EB-5 projects offer the best way to meet the job-creation requirements.

Under the relevant regulation, EB-5 project can involve a "troubled business".

Troubled business

means a business that has been in existence for at least two years, has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the twelve or twenty-four month period prior to the priority date on the alien entrepreneur's Form I-526, and the loss for such period is at least equal to twenty per cent of the troubled business's net worth prior to such loss. For purposes of determining whether or not the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

The regulations confer certain benefit(?) to an EB-5 project involving "troubled business", as follows:

(ii) Troubled business. To show that a new commercial enterprise which has been established through a capital investment in a troubled business meets the statutory employment creation requirement, the petition must be accompanied by evidence that the number of existing employees is being or will be maintained at no less than the pre-investment level for a period of at least two years. Photocopies of tax records, Forms I-9, or other relevant documents for the qualifying employees and a comprehensive business p lan shall be submitted in support of the petition.

The non-legal problem with an EB-5 project involving a "troubled business" is a negative connotation associated with the troubled business. Many potential EB-5 investors may say rightly or wrongly "I don't want to invest in an EB-5 project if it's troubled."

Also, certain undetermined issues related to "troubled business" EB-5 project is whether there must be 10 or more full-time jobs at pre-investment point of time. For example, if there were only 7 full-time jobs at the pre-investment point of time, can this qualify? What if 3 new full-time jobs are created in addition to maintaining 7 full-time jobs that pre-existed? As you can see, the questions remain.

You receive all the rights and obligations that you are entitled to as a Limited Partner in a Limited Partnership formed pursuant to the Uniform Limited Partnership Act (the "ULPA") of the particular state. Under ULPA, certain standard provisions have been included to protect the interests of the Limited Partner. These rigths are essentially to participate in policy formation via being able to vote on important issues facing the Limited Partnership, according to the terms of the Limited Partnership agreement. Also, as a Limited Partner, your liability is limited to the amount of your investment.

You, as a Limited Partner, should receive Unit of Certificate, which basically says that you have Limited Partner interest in a particular Limited Partnership formed pursuant to ULPA. You can also ask questions to General Partner and review the progress reports and discuss and make suggestions to General Partner.

The fact is that without this kind of arrangement, there is no way multiple group of EB-5 investors can participate in large EB-5 projects. Basically, without the presence and role of a General Partner and structures imposed by a Limited Partnership, none of Limited Partners will be able to agree on any important issues. In addition, this is how it's done in commercial settings. Therefore, the Regional Centers are not in some way trying to "limit" your powers for some ulterior motives; but, the rights of Limited Partners in a Limited Partnership is generally "limited"; yet this arrangement is specifically allowed under the EB-5 law, because USCIS and Congress recognizes the reality that without such arrangement, large Regional Center EB-5 Program simply cannot exist or function. This is akin to the U.S. business law allowing legal entities of corporations and limited partnerships. Otherwise, no one will conduct any business.

Frankly, if you wish to retain and control the new commercial enterprise, you should be the majority interest holder in a regular, direct, individual EB-5 project, so you can do whatever you wish.

Although the Regional Center (RC) EB-5 projects are engaged in a variety of industries, and after you examine many RC structures, it becomes readily apparent there are just two types of investment structures utilized by the Regional Centers.

One type of structure utilized by RCs pool the requisite investments from multiple EB-5 investors, then usually adds additional money from another party -- up to this point, it's the same for all RC -- and then partakes an equity interest in an actual business, such as renovating, building and operating a commercial real estate properties, dairy farms, ethanol manufacturing plants, which hire new employees. Then, the profit (if any) is divided between General Partner (either the RC operator or an affiliate) and Limited Partners (composed of EB-5 investors).

The second type of structure pools the requisite investments from multiple EB-5 investors into usually a Limited Partnership structure which acts as a New Commercial Enterprise -- up to this point, it's the same structure as the first type -- and then makes an investment loan(s) to a third-party company (both for-profit and non-profit) which borrows the loan for the specific purpose of using the investment loan to partly finance the bona-fide and job-creating project. The project can range from building hotels, hospitals, manufacturing plants, expanding shipyards, renovating huge office buildings, large, and high-class restaurants to using the investment loan to finance film production activities.

The gradual trend appears to be towards the second type of structure. Another trend is towards undertaking bigger projects, primarily because it takes a great deal of time and efforts to put together good EB-5 projects.

Which one do we prefer? It really depends on the specific characteristics of a particular EB-5 project, but everything being equal, we generally prefer the 2nd type of investment structure.

The common characteristics of "good" EB-5 Regional Centers are:

1. Relative strong track records in having developed, completed and successfully marketed numerous number of regional center EB-5 projects.

2. Extensive experience in having promoted numerous Regional Center EB-5 projects and having handled I-526 and I-829 applications.

3. Many years of experience in having managed EB-5 projects and being aware of EB-5 issues.

4. A transparent investment structure which has been tested through all phases of EB-5 procedures.

5. Utilizes an understandable, "reasonable" job-calculation methodology in conservative manner.

6. Good team of advisors, including experienced U.S. immigration attorneys.

7. Capable staff dedicated to serving the investors' needs and managing the EB-5 investment projects.

8. Track record of I-829 approvals and having recouped the investments.

Yes, if you wish, you should bring your attorney, CPA or your advisor, or anyone whose advice you trust, and hopefully, who is smarter than you when it comes to this kind of matters. Also, if you do not speak or understand good English, you should inform the RCs in advance. Some RCs will expect you to bring your own English translator, which might be as well, because if I were an investor, I rather trust the English translator I hired rather than supplied by the RC itself, not because I doubt any RC's honorable intentions but because their translator may not be as competent as the translator hired by the investor.

Yes, most escrows are pretty well-known banks, and I have never heard so far any problems with the escrow banks used by Regional Centers. However, if the escrowing company is a very small bank or non-financial company, I would be concerned, if I were an EB-5 investor who was told to deposit my funds in some unheard of bank at some Caribbean island. Like I said, most RCs I know use well-known, bona-fide banks to act as escrows.

For two reasons. One, RC cannot have the investor's money wired into the Limited Partnership's bank account until I-526 is approved, because under the EB-5 law, there should not be any commingling of money that is not of lawful source. Therefore, it is always prudent to wait until I-526 petition is approved before releasing the money in the escrow account to the Limited Partnership's account. Second, this is to protect individual investors who do not want to release their moneys until at least their I-526 immigrant petitions are approved, because the chances is if their I-526 petitions are approved, they should in all likelihood obtain Conditional Permanent Resident (CPR) status.

However, as noted in another section, USCIS already released an official statement stating that it is in violation of EB-5 law to guarantee the return of the initial investment in case I-829 is denied for any reason, because this comes close to a guarantee. Therefore, do not even ask the RC if they can guarantee the return of your money if your I-829 is denied. Even if the RC wants to do that, they cannot. It's like asking them if they are willing to violate EB-5 law to help you.

Basically, any RC must comply with the governing rules and parameters set by USCIS for Regional Centers, so that their RC designation is not taken away by USCIS. Their second goal is to try to minimize the risk that investors' initial investments are not lost, while enough new jobs are created so that all investors can acquire Lawful Permanent Resident (LPR) status. Really, their last goal is to try to increase the return of profit to Investors. However, you tell me how much profit the RC projects can really generate for you when the RCs have other goals to achieve? To be frank, if I were an EB-5 investor I would stay away from an EB-5 project that says they can generate very high profits while achieving other objectives. If any RC can consistently generate very good profits while achieving the above-described objectives, the principals of that RC are either geniuses or incredibly lucky people.

[Q] I know most, if not all Regional Centers, require that you deposit the requisite funds in the designated bank escrow accounts. Does this money get refunded to the investor in the event I-526 is denied?

Yes, the escrow agreement contains a provision mandating that the money be released from the escrow account directly to the investor in the event of i-526 denial. Therefore, the money does not even go to the Limited Partnership's account; the money is released directly to the investor from the escrow account.

[Q] Regional Center EB-5 projects contain many investors who invest in the same project as pooled investors. If I get the requisite money money and documents ready, can I go ahead and apply for I-526 immigrant petition without having to wait for other investors to get ready their money and docs?

Yes, even though a RC EB-5 project has many EB-5 investors participating as investors, each investor can proceed with their EB-5 case according to his own schedule. Otherwise, RC-based EB-5 projects would not be feasible.

Note that Regional Center concept has nothing to do with the amount of investment; it has everything to do with the way you are allowed to create jobs -- directly, indirectly and induced. Therefore, a Regional Center can, and often do, require $1 Million USD investment. The TEA concept governs the amount of investment, not RC concept. That's why an easy way to remember is to repeat "It's good to have TEA in RC".

It can cost anywhere between $50,000 to $100,000 USD to prepare a RC designation request or proposal, and it can take anywhere between 1 to 2 years. Also, getting a RC designation does not automatically lead to EB-5 investors lining up at your door. The RC market is becoming very competitive, like any business.

Although we cannot be certain, we would say RC based EB-5 cases are between 70% ~ 80%.

We believe there is a possibility that this amount might be raised in future -- but not until 2011 or later. There are some talks on this issue, but we would personally not be surprised if this happens. Do we agree or like it? No. But is there some likelihood? Yes.

The investor must be "active" in the management of the investment by engaging in the management of the new commercial enterprise, either through day-to-day managerial control or through policy formation. However, the law does specifically allow that an investor will qualify as a "limited partner" as defined in the Revised Uniform Limited Partnership Act. 

The Limited Partnership (the "LP") meets all the regulation requirements by enrolling the investor in the investment as a limited partner. This role allows the investor to continue to engage in his or her own business without needing to participate in the day-to-day management operations. However, the limited partner is required to participate in the formation of policy activities for the Partnership. The limited partnership business structure allows the investor to live where he or she pleases, and gives him or her the option to enter and exit the U.S. without any obligation to manage the daily affairs of the investment. Most importantly, the limited partner, like the corporate shareholder, is only liable to the enterprise to the extent of the agreed-upon investment. The RCs uses this business structure to protect the investor.

Let's examine the controlling regulation:

(5) To show that the petitioner is or will be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial control or through policy formulation, as opposed to maintaining a purely passive role in regard to the investment, the petition must be accompanied by:

(i) A statement of the position title that the petitioner has or will have in the new enterprise and a complete description of the position's duties;

(ii) Evidence that the petitioner is a corporate officer or a member of the corporate board of directors; OR

(iii) If the new enterprise is a partnership, either limited or general, evidence that the petitioner is engaged in either direct management or policy making activities. For purposes of this section, if the petitioner is a limited partner and the limited partnership agreement provides the petitioner with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the petitioner will be considered sufficiently engaged in the management of the new commercial enterprise.

Note the key word "or" above, which implies that in a non-corporate NCE situation, such as LLC, "(i)" requirement will have to be met showing that the investor-petitioner "is engaged in either direct management or policy making activities" of the NCE.

Yes. If the petition was submitted in good faith, the full investment will be returned to the account from which the funds originated.

The USCIS requires that some financial risk be involved so all Regional Centers and/or immigration attorneys cannot guarantee the return of the investment to individual EB-5 investors, but the featured Regional Centers make best efforts to minimize the amount of risk by making sure that the investment loans are properly collateralized and that the borrowing companies are in strong financial standing. All limited partners will receive semi-annual reports with financial and partnership information from the General Partner.

he EB-5 program allots 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least ten (10) full-time jobs for U.S. workers. Three thousand immigrant (3,000) of these visas are set-aside for aliens who invest through regional centers. In addition, 3,000 immigrant visas are allotted to TEA EB-5 cases. Putting together, this means, if certain RC EB-5 project combines both RC and TEA features, 6,000 IVs are available for picking under the current system. That's interesting.

Well, it really depends on who you talk to. Some will say say it was USCIS who suddenly changed their EB-5 policies and put in all kinds of restrictions that made the Regional Center Program an unworkable vehicle to attract foreign investors. Some will swear that the problem lies with too aggressive Regional Centers who took too much risk and pushed their Regional Center Program off the slippery slope of common sense in order to get away from the too restrictive requirements enforced by USCIS. It's hard to say. But probably, no one will argue that it was probably a combination of both factors that caused the Regional Center and also regular, direct, individual EB-5 cases to remain stagnant for many years from 1995 to 2003.

Perhaps the reason for this confusing history of EB-5 Program is because EB-5 contains two conflicting motivations by two parties: U.S. governments want the foreign investors to take as much risks as possible and create many jobs, while the foreign investors want to NOT take any risks while obtaining green cards. There is a tug of war between the two conflicting motivations, and we believe the EB-5 ball has settled somewhere in the middle of requiring the job-creation, while relaxing other requirements. As long as the foreign investor puts his or her money of lawful source to create or foster the job-creation of requisite numbers of full-time positions, the USCIS is being supportive of the Regional Center Program, and in fact, in 2004, had to become a cheerleader for the Regional Center Program to jump start it after no one wanted have anything to do with the Regional Center Program. See the attached USCIS Press Release PDF file.

[Q] It is my understanding that Regional Center Program meandered for many years from 1995 to 2002 and then starting around 2003, made a resurgence of sort. Is there specific reasons for this?

Yes, without the changes in the EB-5 law, we believe the Regional Centers would have continued to meander and never have taken off. What were the important statutory amendments? They were:

  • Doing away with the job-creation requirement that were related to export activities of the region, and allowing the job-creation from any investment activities in the region;
  • Doing away with the establishment of new commercial enterprise requirement by the investor, and allowing third-parties rather than investors to first create a new commercial enterprise, i.e., limited partnerships first and then attract investors -- per real-world commercial demands;
  • Reaffirming that a limited partnership is included in the definition of "new commercial enterprise";
  • and

  • Defining full-time positions as the positions that require 35 hours per week any time (rather than all the time) regardless of who fills the positions.

The above amendments in one swoop made the Regional Center Program comport with the real-world commercial requirements. Without these amendments (and subsequently by various policy changes), there is no way Regional Center Program would have taken off. Therefore, people who refer to "regional centers" as some sort of "shady schemes" are not aware of the very problems that initially caused the regional centers to become "schemes" and then subsequent amendments that allowed Regional Centers to carry on as bona-fide businesses to attract foreign investors' funds.

Said author often tells potential clients that they really have to understand the checkered history of the Regional Center Program and the reasons for the problems, before they can understand that there have been definite improvements made that made the Regional Center doable Program that can function in the real-world, commercial requirements.

USCIS has released the following statement in January 2009.

Please send Regional Center Proposals to:

USCIS California Service Center
ATTN: EB5 RC Proposal
P O Box 10526
Laguna Niguel, CA 92607-0526

Or

For non-US Postal Service:

USCIS California Service Center
ATTN: EB5 RC Proposal
24000 Avila Road, 2nd Floor
Laguna Niguel, CA 92677

In addition, please place a cover sheet (preferably in RED) on top of your proposal packet with BIG BOLD LETTERS "EB5 RC PROPOSAL" so that the contractor can more easily identify them and not reject them.



The "contractor" referred above means the contracting company's staff who opens the mails and sorts them. We do not know if it is a good idea to have the same governmental body which adjudicates the EB-5 applications to approve or deny proposal/request for designation of a regional center. Evaluating regional center proposal request is not an easy work because there is a bundle of economic analysis, commercial and immigration issues.

For various reasons, the Western parts of the United States have the most number of designated regional centers, and to a lesser extent, some Eastern states. Perhaps it's because it's easier to set up projects, or because they are the areas where foreign investors and families want to emigrate, or those are the areas where the principals of the regional centers live and work. Not sure of the reasons, but those are the facts.

[Q] Some people tell me that direct, individual $1 Million USD EB-5 case will get you LPR status directly without having to go through CPR status, as opposed to regional center EB-5 case. Is this true or false?

Absolutely false. All EB-5 cases, whether Regional Center or non-Regional Center, regardless of the amount of requisite fund, have to go through Conditional Permanent Resident (CPR) status first, before fulfilling all requirements for applying for I-829 conditions removal to obtain LPR status. Don't think there is any additional immigration benefit by investing more money. That's just not the case.

Many people have prejudices against Regional Centers because of the "troubled" or "checkered" history, but the EB-5 law governing regional centers have become a lot clearer (not to say there are no left-over issues), and USCIS is in the process of issuing several guidelines to further clarify many of the points. In short, the Regional Center Programs, largely due to USCIS' greater involvements and efforts, have cleaned up their acts. Most EB-5 regional centers I know, although hoping for a more relaxed requirements, try to abide by the EB-5 law and try to work within those constraints. USCIS has made it clear that no funny business will be tolerated. One thing is for sure: most major Regional Centers know about each other's practices, and if any particular Regional Center does something they should not be doing, the word will get around very quickly, and to USCIS' office, especially in this age of instantaneous internet.

Most Regional Centers, for consistency purposes, may have their own designated, preferred, recommended, or allowable U.S. immigration attorneys for EB-5 investors. From an efficiency point of view, the RCs want to work with experienced U.S. immigration attorneys who can represent the Investors well; but at the same time, from a marketing point of view, the RCs might have to work with any U.S. immigration attorneys to have a greater chance of attracting Investors to their EB-5 Projects. It all depends on the philosophy and needs of a particular RC. Obviously, any RC would probably like to work with a proven U.S. immigration attorneys who know their system and requirements.

It should be noted that there is a healthy competition among Regional Centers, and at the same time, they are bound by common goal of furthering the interests of the Regional Centers and EB-5 law to better accommodate the needs and interests of Regional Centers.

One purpose of this site is to further the interests of potential EB-5 Investors.

This differs for each designated regional center, but in general, the General Partner is the entity that is running the day-to-day activities of the Limited Partnership (new commercial enterprise). They follow the changes or progress of the EB-5 project, monitors the job-creation developments, reports to Investors, answer your questions, and then also calls for voting on any significant issues that require voting of limited partners pursuant to the limited partnerships. In some limited number of regional centers, the General Partner may also work with a governmental economic development agencies on these matters. In most regional centers, the participation of the limited partner investors are pretty "limited", meaning you can reside anywhere in the U.S. and do not have to be near the EB-5 project.

U.S. immigration attorney of EB-5 investors work and communicate with the General Partner to keep you abreast of the important developments.

For various reasons, most Regional Centers use the Limited Partnerships formed pursuant to the Uniform Limited Partnership Act of the applicable state law. But there is no reason not to use corporations, etc.

First, regional center designation letter controls the type of project, structure and the specific geographic region. Therefore, any EB-5 project must comply with the conditions of the RC designation letter.

Most RC projects involve building or expanding big buildings, such as Pennsylvania Convention Centers, UPENN hospital, building shipyard factories, hotels, real estate development projects, and helping film production studios make movies.

Unfortunately no. USCIS recently ruled that this blanket provision stating the return of the money in the event of I-829 denial is not allowed. The rationale for this is that if this was allowed, there would be almost no risk for EB-5 investors. We can tell you that if this was allowed, many regional centers would accommodate such provision, but it's not allowed, so that's that. Also, practically speaking, it's hard to return the investor's money once the money has been invested into a EB-5 project towards the job-creation activities.

Most of the better-known regional centers probably do. The offering documents contain a provision that the EB-5 investor's fund will be returned promptly in the event Immigrant Visa or I-485 is denied. The investor doesn't have to worry about the money being returned in the event of I-526 petition denial because their money is being held at an escrow account, so it will be released in the event I-526 petition is denied.

[Q] Do all regional centers require that the investment amount be deposited into a designated escrow account, and when is the release date of such fund to the new commercial enterprise entity?

Probably yes, because this is designed to protection to EB-5 investors and at the same time hold the funds in a designated escrow account until it has been demonstrated to be of lawful source through I-526 petition approval.

The release date may vary according to regional centers. Most require the release after the approval of I-526 petition, to be safe, because this date is a balance between the need to wire the money as soon as possible to help the EB-5 project, and also to make sure that EB-5 investor will be protected.

Most Regional Center Programs require the minimum $500,000 USD investment amount. In addition, they generally have additional costs and fees of $25,000 to $55,000 USD. The difference in the additional costs and fees might be due to the difference in including immigration attorney fees or having the investor pay the immigration attorney fees on his own.

A "Regional Center" is:

1) Ann entity, organization or agency that has been approved as such by the USCIS;

2) Which focuses on a specific geographic area within the United States; and

3) Which seeks to promote economic growth in the region through investment, or any improved regional productivity, creation of new jobs, and increased domestic capital investment.

Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 3,000 are set aside for those who apply under a pilot program involving an CIS-designated “Regional Center.”

Basically, the advantage for an EB-5 investor is that a regional center can employ a "reasonable" methodology to show that the new jobs were created Directly, Indirectly or by induced means, or any combination thereof. This is an advantage because adding Indirect jobs definitely increases the number of new jobs created. For direct, individual EB-5 case, they are limited to using only directly-created new jobs.

Note a regional center EB-5 project can be either $500,000 USD or $1 Million USD investment. In other words, it can be either a TEA project or non-TEA project.

Any governmental entity or for profit entity can apply to designated a regional center. It can take up to 1.5 years or it can be approved quickly. It all depends how thorough are the documents submitted in connection with the request to become a regional center. There is a concern whether the processing times of EB-5 related applications will be adversely affected by more regional centers.

There are close to 70 designated centers spread across various states as of December 2009. Note many of them do not have track records on completed projects, approved I-526s or I-829s. You may go to www.eb-5center.com/RC_list to view the most current list of designated regional center list.

Yes and no. It is true that an approved regional center can include new positions created directly, indirectly or by induced means. However, the term "pre-approved" implies that USCIS will not question the job-calculation at the I-829 stage once I-526 petition is approved; this just is not true. A more accurate way to describe is that a specific job-calculation methodology that is included and submitted as part of I-526 petition (as well as part of the regional center designation request letter and approval) is deemed to be approved by USCIS when the underlying I-526 petition is approved. However, most, if not all, job-calculation studies contain some key assumptions that underlie the job numbers results reached by utilizing the job-calculation methodology. At I-829 stage, USCIS has discretion to question whether the material assumptions underlying such job-calculation studies have been met.

Therefore, it is not technically correct to say the job numbers have been "pre-approved" if and when I-526 petition is approved. Rather, the job-methodology containing certain key assumptions have been approved. It is hard to imagine that any job-calculation study which has been stripped of any and all key assumptions can be considered a "reasonable methodology" contemplated by the EB-5 regulations.

Basically, the relevance of being designated as a regional center is that the applicant (a for-profit or non-profit company can apply for designation) can establish EB-5 projects within the geographic region and the parameters set forth in the regional center designation letter in terms of investment structures and types of industries, etc. in order to attract foreign investors.

The biggest benefit is that the requisite creation of ten full time and new positions can be achieved directly, indirectly or induced means. A specific, acceptable job-calculation method should be set forth in the regional center designation letter, and all the projects taking place pursuant to the specific regional center must comply with the conditions contained in the designation letter.

Pilot Program is the type of EB-5 investment program created by a specific EB-5 statute, and Regional Center is an EB-5 investment mechanism falling with the Pilot Program. For the practical purposes, they are the same thing.

Yes, if the Regional Center commits fraud and misrepresents or remains inactive for a prolonged period of time without setting up EB-5 projects, or violates the parameters set out in the Regional Center Designation Letters, then USCIS may issue a Notice of Intent to Withdraw the Regional Center designation.

As of September 17, 2010, it appears that at least one designated regional center received a Notice of Intent To Terminate A Regional Center Designation for failure to follow the permitted parameters of their RC designation.

[Q] Many sources say or state that the Regional Center EB-5 Program has been "revived" or "re-established" in 2002. What does this mean? Is this true? I thought the Regional Center Program existed since 1993?

It's largely an accurate description. Even though the Regional Center Program existed since 1993, from 1997 to 2002, the Regional Center Pilot Program suffered a severe set-back that resulted from the varying positions taken by the USCIS and also by some Regional Center Program which pushed the EB-5 law over the edge of common sense. Starting 2002, USCIS (spearheaded by Morrie Berez who is no longer involved in the EB-5 Unit) started to support and clarify many of the problematic issues that had been serious impediments to the Regional Centers' moving forward. USCIS became more reasonable, and a sort of compromise has been reached. Many of the issues remain, and USCIS stated during teleconference that it is in the process of drafting official guidances on many of the issues.