Frequently Asked Questions

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.

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.

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, you and your dependent family members need to show that you are not subject to the 2-year home residency requirement or have obtained a waiver of the 2-year home residency requirement. 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.

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.

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.

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 aspect, 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. Of course, the consular officer, during the immigrant visa interview, will make their own determination as to whether you are "crazy" 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.

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.

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.

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.

Interesting question. We think (we are not sure as CSC has not answered this one) that CSC would say "no", because they apparently consider the jobs to be "new", and they would argue that these were existing part-time positions which got "upgraded" to full-time positions and therefore, they are not "new" jobs. 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 questions. We, as EB-5 practitioners, should not be timid about asking this type of questions.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Let me quote USCIS' answer to this particular question in its entirety:

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."

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.

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.

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 . . .

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.

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.

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.

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.

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.

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.

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.

"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?

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.

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.

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."

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, 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.

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.

Yes, if you are currently residing in the US on a non-immigrant visa in order to apply for any Regional Center Program, you must prove to be an accredited investor. The $530,000 US dollars that will be used for the investment can be counted towards the requirement of $1 million US dollars in assets.

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.

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.

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.

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.

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.

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.

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.

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.

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. However, the same kind of regional center in the same area will probably not be allowed, since it will cause too much confusion and will impede the goals of the Regional Center Program.

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 )

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.

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. 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.

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.

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

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 . . .

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.

Because of system issue, 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 notices 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.

Yes, an attorney licensed in any of 50 states of the United States can advise and practice U.S. immigration cases in all 50 states and in US. territories. This is because U.S. immigration law is "federal" law and not state law. To give you an example, let's say you are married to a US citizen spouse, and you want to get divorced but still want to file a separate I-829 application in the state (let's say Virginia) you reside. As long as the attorney is licensed in any state, the attorney can accept your I-829 immigration case, but unless the attorney is licensed in the state of Virginia, the attorney will not be able to accept your divorce case. This is because divorce case taking place in Virginia is governed by Virginia law, while I-829 immigration case is governed by U.S. federal government and therefore falls under "federal" law. Other federal law areas are: Patent, bankruptcy and maritime laws.

This is why it's good to practice U.S. immigration law, because if you are licensed in one state, you can move to any of the 50 states and practice U.S. immigration law, without having to waste many weeks or months studying for and passing the Bar Exam in the new state. You have to study for and pass the new Bar if you are an attorney specializing in divorce law or even corporate law. The only bad thing about being a U.S. immigration lawyer is that you have to deal with USCIS and consular officers. Who knows, maybe the USCIS and consular officers feel the same way. :) In all seriousness, one good thing about being an immigration attorney is being able to "help" people, but one negative aspect is having to deal with all bureaucracies and the inefficient system.

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. 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 application.

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.

There are 16 adjudicators at CSC working on EB-5 related applications, and USCIS' goal is 5 months for I-526 and under 7 months for I-829s. USCIS expects to achieve this goal within 2009.

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.

Currently, it is taking around 6 months, but USCIS trying to speed up the adjudication by consolidating all EB-5 applications to be submitted at and decided by the California Service Center and hiring and training additional staff. It really depends on the number of I-526 cases field and how long USCIS takes to decide each I-526 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, 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 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".

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.

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.

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.

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.

USCIS' answer?

Yes, as long as the jobs are not “double-counted.”

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.

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 or should not 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 September 16, 2009, there are around 60 regional centers designated by USCIS, and there are close to 50 regional center applications pending. This means within one-year time, there will be over 100 designated regional centers. Note that not all designated regional centers are active, and the track records vary greatly among designated regional centers.

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.

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.

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?

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.

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.

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 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.

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.

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.

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.

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.

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.

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Sep_17_2004_open_meeting_called_by_USCIS.pdf	166.16 KB

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.

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 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 and set (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 (including CanAm Programs), 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.

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.

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) 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.

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.

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.

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 about EB-5 law.
• Whether the immigration attorneys seems to be hard-working.
• Whether the immigration attorney seems to be honest and responsive.
• The types of legal services covered in the retainer agreement.
• The city where the immigration attorney is located. If possible, choose an attorney located near where you are. At least you can meet and talk to him or her more conveniently.

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 many regional centers strongly prefer that you use their preferred immigration attorneys.

Generally speaking, the EB-5 investor must choose his or her immigration attorney and also pay for the fees and filing fees, etc.