Frequently Asked Questions - EB-5 Eligibilities: I-526, CPR & I-829

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

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

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

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

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

Helpful links for Iranian EB-5 cases:

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

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

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

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

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

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.