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Frequently Asked Questions - Starting EB-5 case -- what potential EB-5 investor should know & do


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Lawful source documents.

3. Bank wire documents.

4. Immigration status documents such as I-94.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The total fees can be broken down into the following:

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

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

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

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

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

Physical exam costs

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

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

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