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Frequently Asked Questions - EB-5 Eligibilities & Requirements: I-526, CPR & I-829
Who are eligible or ineligible to pursue EB-5 case, and what are specific requirements for each type of petition or application?
USCIS has caused a great deal of confusion surrounding construction jobs, mainly because USCIS is not sticking with its own definition of direct vs indirect jobs. In practice, it is almost impossible for any construction jobs to be deemed as "direct" jobs per EB-5 law. Think about it: Under the EB-5 law, "direct" jobs are only those jobs directly employed by the NCE or JCE, but most, if not all, construction jobs are hired by general contractors or sub-contractors. This means all construction jobs are indirect jobs under the EB-5 law. Therefore, under the EB-5 law, it's logically flawed to count any construction jobs as "direct" jobs. However, in our opinion, USCIS seems to be very confused on this issue.
Anyway, we would be very, very cautious about any EB-5 projects that need to count "direct" construction jobs to meet the requisite job numbers, mainly because under the EB-5 law, there is no such thing as "direct" construction jobs; maybe economists will deem certain construction jobs as "direct", but that's logically flawed under the EB-5 law definitions of "direct" and "indirect" jobs.
USCIS still needs to clarify issues concerning EB-5 projects involving construction jobs, tenant-occupancy jobs or hotel related jobs. It's amazing how USCIS fails to provide clear enough guidance on these issues.
Update: As of July 16, 2013, an experienced EB-5 economist has stated that as long as the underlying construction activities last longer than 2 years (as supported by evidence), he has observed USCIS allow the counting of "direct" construction jobs.
USCIS has stated in October 2012 EB-5 teleconference that generally this arrangement will not be allowed. See also: http://www.uscis.gov/err/K1%20-%20Request%20for%20Participation%20as%20R...
In essence, requisite jobs must be created by an entity that qualifies as a NCE or JCE.
Recently in 2012, USCIS announced its "tentative" policy on "tenant-occupancy" issues. The new policy appear to make an office building development (to be rented out to various types of tenants) an extremely difficult EB-5 project. Is this the case?
The short answer is: "In theory, no; in practice, no one knows -- yet."
Theoretically, if USCIS holds firm to its recently-announced rationale, it would seem that such office building development would in practice be extremely difficult to be the basis for an EB-5 project, because practically speaking, it would be extremely difficult for an EB-5 investor/petitioner to show that the tenants' employees are "new" jobs which do not involve merely relocating from another location to the building. See http://eb-5center.com/node/1044 for a detailed explanation of USCIS' recent explanation on how it views the tenant-occupancy issues. The fact of the matter is most of the tenants' employees in this type of office building project would be relocating employees. Moreover, it is unlikely that there would be some business or financial relationship between the developer and the tenant as indicated by USCIS. However, we have not yet heard whether USCIS is intent on denying I-526s or I-924s for these types of projects. We will have to wait and see where USCIS wants to take this issue, as there are a slew of pending RFEs issued by USCIS involving this issue.
Our position is that regs seem to say "no", and as a result, we have advised clients accordingly. However, we did hear from other attorneys that they managed to get their I-526s approved even when unsecured personal loans were used. We must caution you that we also heard of RFEs on this very issue, with the RFE stating that the regs require only loans secured with personal assets. So, if you want to be a hero, go ahead.
[Q] I would like to invest $ 500,000 and get the conditional green card. I have 2 questions I didn't find in any Faqs:
1- when I got the conditional green card for my investment, could I get hired by a US employer and do another kind of job? Example: I invest in a *** Resort project, I get my conditional green card and my SSN, after that can I be an employee of Wells Fargo and work for them?
2- when is my investment "due"? When can I get my money back? After i got my unconditional green card?
1. Being an EB-5 investor does not prohibit you from working for another US employer or staring another business.
2. The EB-5 project may have its own requirement, but generally speaking, there is no prohibition against an EB-5 investor getting his or her money back after getting I-829 approved. However, most EB-5 project requires a loan of at least 5 years for various reasons.
No, USCIS deems that the geographic region must be contiguous. If there are several non-contiguous geographic areas in which someone wants to operate EB-5 regional centers, that person must apply separately for multiple regional centers.
We have not yet seen an EB-5 project where a New Commercial Enterprise has been formed to just purchase state revenue bonds. If USCIS approves I-526s and I-829s for this type of project, it will be the first one, and all regional centers will copy the investment structure, that's for sure.
We can foresee many legal arguments on this issue, but we will keep it to ourselves at this point.
One difference I see is that where a LP is formed to make a commercial loan to a city agency for its infrastructure project, there is a precedent (Izumii case), but for purchasing bonds, there is no precedent case. We would not be surprised if this issue is revisited by USCIS in future.
[Q] I have several options for gathering the funds needed to invest for the EB-5. I wanted to know if I can use advances from credit cards to make it happen?
No. Review the definition of "capital" which excludes unsecured (personally-owned properties) loan.
[Q] I have a question regarding funding source that can also contribute to your website: Can a 200K unsecured personal loan from a family member and a 300K unsecured personal loan made by a recognized financial institution be used as my personal funding source for a EB5 business?
The answer to your question lies in the definition of "capital". The definition of allowable "capital" does not allow unsecured loan to be used as EB-5 investment funds. Any loan used must be indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.
[Q] Client wants to start new business in a city that has under 20,000 residents, but that city is a part of a Metropolitan Statistical Area. Could this qualify for a $500,000 investment because it qualifies as a "rural area", or does he need to invest $1 million?
Practically speaking, this is how USCIS defines "rural".
The immigration regulations define "rural" as "any area NOT within EITHER a metropolitan statistical area (as designated by the Office of Management and Budget) OR the outer boundary of any city or town having a population of 20,000 or more."
Even though the regulation uses the word "or," the USCIS interprets this definition as meaning that an area must be both OUTSIDE a metropolitan statistical area as defined by Office of Management and Budget and have a population of less than 20,000. This means some truly rural areas cannot qualify as TEAs for EB-5 purposes because they happen to be located in a sprawling MSA. If the USCIS refuses to change its interpretation of the definition, Congress should fix the problem legislatively.
This means if the Metropolitan Statistical Area (MSA) is sprawling and covers a lot of area, and there happen to be pockets of what look like rural areas within the MSA, they will not qualify as "rural areas". This definition sort of defeats the purpose as these pockets are precisely the type of lands which need developing. Anyway, this is another instance where USCIS could have easily and logically arrived at a different conclusion that jibes more reasonably with the real world of commerce.
You better discuss your case with an EB-5 practitioner with good knowledge of general US immigration laws. This is because while nothing prevents one from filing I-526 immigrant petition or getting I-526 approved, having been out of status or "unlawfully present" will pose big obstacles to your being able to adjust status to permanent resident via I-485 or obtaining immigrant visas via consular processing abroad.
Yes, if they can prove that the underlying fund was not obtained or earned while they were in unlawful presence in the U.S. and they can prove they are eligible and have been grandfathered under 245(i). 245(i) waives people who Entered Without Inspection.
INA 245(i) reads:
(i) (1) 2a/ Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States--
(i) entered the United States without inspection; or
(ii) is within one of the clas ses enumerated in subsection (c) of this section; 2a/
(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d) ) of--
(i) a petition for classification under section 204 that was filed with the Attorney General on or before 2a/ April 30, 2001; or
(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and 2a/
(C) 2a/ who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on the date of the enactment of the LIFE Act Amendments of 2000; may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such a pplication a sum equaling $1,000 3/ as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986 at any date, who-
(i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986;
(ii) entered the United States before May 5, 1988, resided in the United States on May 5, 1988, and is not a lawful permanent resident; and
(iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section. and
(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if-
(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and
(B) an immigrant visa is immediately available to the alien at the time the application is filed.
(3) 4/ (A) The portion of each application fee (not to exceed $200) that the Attorney General determines is required to process an application under this section and is remitted to the Attorney General pursuant to paragraphs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in subsections (m), (n), and (o) of section 286.
(B) Any remaining portion of such fees remitted under such paragraphs shall be deposited by the Attorney General into the 4a/ Breached Bond/Detention established under section 286(r) , 4a/ except that in the case of fees attributable to applications for a beneficiary with respect to whom a petition for classification, or an application for labor certification, described in paragraph (1)(B) was filed after January 14, 1998, one-half of such remaining portion shall be deposited by the Attorney General into the Immigration Examinations Fee Account established under section 286(m) .
8 CFR 245.10 contains regulation governing 245(i)
§ Sec. 245.10 Adjustment of status upon payment of additional sum under Public Law 103-317. (Added 10/1/94; 59 FR 51091) (Heading amended 3/26/01; 66 FR 16383 )
(a) Definitions . As used in this section the term: (Added 3/26/01; 66 FR 16383 )
(1)(i) Grandfathered alien means an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act) of:
(A) A petition for classification under section 204 of the Act which was properly filed with the Attorney General on or before April 30, 2001, and which was approvable when filed; or
(B) An application for labor certification under section 212(a)(5)(A) of the Act that was properly filed pursuant to the regulations of the Secretary of Labor on or before April 30, 2001, and which was approvable when filed.
(ii) If the qualifying visa petition or application for labor certification was filed after January 14, 1998, the alien must have been physically present in the United States on December 21, 2000. This requirement does not apply with respect to a spouse or child accompanying or following to join a principal alien who is a grandfathered alien as described in this section.
(2) Properly filed means:
(i) With respect to a qualifying immigrant visa petition, that the application was physically received by the Service on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and accepted for filing as provided in § 103.2(a)(1) and (a)(2) of this chapter; and
(ii) With respect to a qualifying application for labor certification, that the application was properly filed and accepted pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21.
(3) Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act.
(4) Circumstances that have arisen after the time of filing means circumstances similar to those outlined in § 205.1(a)(3)(i) or (a)(3)(ii) of this chapter.
(b) Eligibility . An alien who is included in the categories of restricted aliens under § 245.1(b) and meets the definition of a "grandfathered alien" may apply for adjustment of status under section 245 of the Act if the alien meets the requirements of paragraphs (b)(1) through (b)(7) of this section: (Redesignated as paragraph (b) and introductory text revised 3/26/01, previously paragraph (a); 66 FR 16383 )
(1) Is physically present in the United States;
(2) Is eligible for immigrant classification and has an immigrant visa number immediately available at the time of filing for adjustment of status;
(3) Is not inadmissible from the United States under any provision of section 212 of the Act, or all grounds for inadmissibility have been waived; (Revised effective 4/1/97; 62 FR 10312 )
(4) Properly files Form I-485, Application to Register Permanent Residence or Adjust Status on or after
October 1, 1994, with the required fee for that application; (Revised effective 3/26/01; 66 FR 16383 )
(5) Properly files Supplement A to Form I-485 on or after October 1, 1994; (Revised effective 3/26/01; 66 FR 16383 )
(6) Pays an additional sum of $ 1,000, unless payment of the additional sum is not required under section 245(i) of the Act; and (Revised effective 4/1/97; 62 FR 10312 ) (Revised 7/23/97; 62 FR 39417 )
(7) Will adjust status under section 245 of the Act to that of lawful permanent resident of the United States on or after October 1, 1994. (Revised effective 3/26/01; 66 FR 16383 )
(c) Payment of additional sum . An adjustment applicant filing under the provisions of section 245(i) of the Act must pay the standard adjustment application filing fee as specified in § 103.7(b)(1) of this chapter. Each application submitted under the provisions of section 245(i) of the Act must be submitted with an additional sum of $1,000. An applicant must submit the additional sum of $1,000 only once per application for adjustment of status submitted under the provisions of section 245(i) of the Act. However, an applicant filing under the provisions of section 245(i) of the Act is not required to pay the additional sum if, at the time the application for adjustment of status is filed, the alien is: (Redesignated as paragraph (c) and revised 3/26/01, previously paragraph (b); 66 FR 16383 ) (Introductory text revised effective 4/1/97; 62 FR 10312 ) (Introductory text revised 7/23/97; 62 FR 39417 )
(1) Unmarried and less than 17 years of age;
(2) The spouse of a legalized alien, qualifies for and has properly filed Form I-817, Application for Voluntary Departure under the Family Unity Program, and submits a copy of his or her receipt or approval notice for filing Form I-817; or
(3) The child of a legalized alien, is unmarried and less than 21 years of age, qualifies for and has filed Form I-817, and submits a copy of his or her receipt or approval notice for filing Form I-817. Such an alien must pay the additional sum if he or she has reached the age of 21 years at the time of filing for adjustment of status. Such an alien must meet all other conditions for adjustment of status contained in the Act and in this chapter. (Amended 3/26/01; 66 FR 16383 )(Revised 7/23/97; 62 FR 39417 )
(d) Pending adjustment application with the Service or Executive Office for Immigration Review filed without Supplement A to Form I-485 and additional sum. An alien who filed an adjustment of status application with the Service in accordance with § 103.2 of this chapter will be allowed the opportunity to amend such an application to request consideration under the provisions of section 245(i) of the Act, if it appears that the alien is not otherwise ineligible for adjustment of status. The Service shall notify the applicant in writing of the Service's intent to deny the adjustment of status application, and any other requests for benefits that derive from the adjustment
application, unless Supplement A to Form I-485 and any required additional sum is filed within 30 days of the date of the notice. If the application for adjustment of status is pending before the Executive Office for Immigration Review (EOIR), EOIR will allow the respondent an opportunity to amend an adjustment of status application filed in accordance with § 103.2 of this chapter (to include Supplement A to Form I-485 and proof of remittance to the INS of the required additional sum) in order to request co nsideration under the provisions of section 245(i) of the Act. (Revised 3/26/01; 66 FR 16383 ) (Revised 7/23/97; 62 FR 39417 ) (Revised 10/23/97; 62 FR 55152 )
(e) Applications for Adjustment of Status filed before October 1, 1994 . The provisions of section 245(i) of the Act shall not apply to an application for adjustment of status that was filed before October 1, 1994. The provisions of section 245(i) of the Act also shall not apply to a motion to reopen or reconsider an application for adjustment of status if the application for adjustment of status was filed before October 1, 1994. An applicant whose pre-October 1, 1994, application for adjustment of status has been denied may file a new application for adjustment of status pursuant to section 245(i) of the Act on or after October 1, 1994, provided that such new application is accompanied by: the required fee; Supplement A to Form I-485; the additional sum required by section 245(i) of the Act; and all other required initial and additional evidence. (Revised 3/26/01; 66 FR 16383 ) (Revised 7/23/97; 62 FR 39417 ) (Amended 10/23/97; 62 FR 55152 )
(f) Effect of section 245(i) on completed adjustment applications before the Service . (1) Any motion to reopen or reconsider before the Service alleging availability of section 245(i) of the Act must be filed in accordance with § 103.5 of this chapter. If said motion to reopen with the Service is granted, the alien must remit to the Service Supplement A to Form I-485 and the additional sum required by section 245(i) of the Act. If the alien had previously remitted Supplement A to Form I-485 and the additional sum with the application which is the subject of the motion to reopen, then no additional sum need be remitted upon such reopening. (Paragraph (f) revised 3/26/01; 66 FR 16383 ) (Paragraph (f) added 7/23/97; 62 FR 39417 ) (Paragraph (f) revised 9/30/97; 62 FR 50999 ) (Paragraph (f) revised 10/23/97; 62 FR 55152 )
(2) An alien whose adjustment application was adjudicated and denied by the Service because of ineligibility under section 245(a) or (c) of the Act and now alleges eligibility due to the availability of section 245(i) of the Act may file a new application for adjustment of status pursuant to section 245(i) of the Act, provided that such new application is accompanied by the required fee for the application, Supplement A to Form I-485, additional sum required by section 245(i) of the Act and all other required and additional evidence.
(g) Aliens deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status . Section 237(a)(4)(B) of the Act renders any alien who has engaged, is engage d, or at any time after admission engages in any terrorist activity, as defined in section 212(a)(3)(B)(iii) of the Act, deportable. Under section 245(c)(6) of the Act, persons who are deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status under section 245(a) of the Act. Any person who is deportable under section 237(a)(4)(B) of the Act is also ineligible to adjust status under section 245(i) of the Act. (Paragraph (g) added 7/23/97; 62 FR 39417 )
(h) Asylum or diversity immigrant visa applications . An asylum application, diversity visa lottery application, or diversity visa lottery-winning letter does not serve to grandfather the alien for purposes of section 245(i) of the Act. However, an otherwise grandfathered alien may use winning a diversity visa as a basis for adjustment. (Added 3/26/01; 66 FR 16383 )
(i) Denial, withdrawal, or revocation of the approval of a visa petition or application for labor certification . The denial, withdrawal, or revocation of the approval of a qualifying immigrant visa petition, or application for labor certification, that was properly filed on or before April 30, 2001, and that was approvable when filed, will not preclude its grandfathered alien (including the grandfathered alien's family members) from seeking adjustment of status under section 245(i) of the Act on the basis of another approved visa petition, a diversity visa, or any other ground for adjustment of status under the Act, as appropriate.
(Added 3/26/01; 66 FR 16383 )
(j) Substitution of a beneficiary on an application for a labor certification . Only the alien who was the beneficiary of the application for the labor certification on or before April 30, 2001, will be considered to have been grandfathered for purposes of filing an application for adjustment of status under section 245(i) of the Act. An alien who was previously the beneficiary of the application for the labor certification but was subsequently replaced by another alien on or before April 30, 2001, will not be considered to be a grandfathered alien. An alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien. (Added 3/26/01; 66 FR 16383 )
(k) Changes in employment . An applicant for adjustment under section 245(i) of the Act who is adjusting status through an employment-based category is not required to work for the petitioner who filed the petition that grandfathered the alien, unless he or she is seeking adjustment based on employment for that same petitioner. (Added 3/26/01; 66 FR 16383 )
(l) Effects of grandfathering on an alien's nonimmigrant status . An alien's nonimmigrant status is not affected by the fact that he or she is a grandfathered alien. Lawful immigration status for a nonimmigrant is defined in § 245.1(d)(1)(ii) . (Added 3/26/01; 66 FR 16383 )
(m) Effect of grandfathering on unlawful presence under section 212(a)(9)(B) and (C) of the Act . If the alien is not in a period of stay authorized by the Attorney General, the fact that he or she is a grandfathered alien does not prevent the alien from accruing unlawful presence under section 212(a)(9)(B) and (C) of the Act. (Added 3/26/01; 66 FR 16383 )
(n) Evidentiary requirement to demonstrate physical presence on December 21, 2000 . (1) Unless the qualifying immigrant visa petition or application for labor certification was filed on or before January 14, 1998, a principal grandfathered alien must establish that he or she was physically present in the United States on December 21, 2000, to be eligible to apply to adjust status under section 245(i) of the Act. If no one document establishes the alien's physical presence on December 21, 2000, he or she may submit several documents establishing his or her physical presence in the United States prior to, and after December 21, 2000. (Added 3/26/01; 66 FR 16383 )
(2) To demonstrate physical presence on December 21, 2000, the alien may submit Service documentation. Examples of acceptable Service documentation include, but are not limited to:
(i) A photocopy of the Form I-94, Arrival-Departure Record, issued upon the alien's arrival in the United States;
(ii) A photocopy of the Form I-862, Notice to Appear;
(iii) A photocopy of the Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, issued by the Service on or prior to December 21, 2000, placing the applicant in exclusion proceedings under section 236 of the Act (as in effect prior to April 1, 1997);
(iv) A photocopy of the Form I-221, Order to Show Cause, issued by the Service on or prior to December 21, 2000, placing the applicant in deportation proceedings under section 242 or 242A of the Act (as in effect prior to April 1, 1997);
(v) A photocopy of any application or petition for a benefit under the Act filed by or on behalf of the applicant on or prior to December 21, 2000, which establishes his or her presence in the United States, or a fee receipt issued by the Service for such application or petition.
(3) To demonstrate physical presence on December 21, 2000, the alien may submit other government documentation. Other government documentation issued by a Federal, state, or local authority must bear the signature, seal, or other authenticating instrument of such authority (if the document normally bears such instrument), be dated at the time of issuance, and bear a date of issuance not later than December 21, 2000. For this purpose, the term Federal, state, or local authority includes any governmental, edu cational, or administrative function operated by Federal, state, county, or municipal officials. Examples of such other documentation include, but are not limited to:
(i) A state driver's license;
(ii) A state identification card;
(iii) A county or municipal hospital record;
(iv) A public college or public school transcript;
(v) Income tax records;
(vi) A certified copy of a Federal, state, or local governmental record which was created on or prior to December 21, 2000, shows that the applicant was present in the United States at the time, and establishes that the applicant sought on his or her own behalf, or some other party sought on the applicant's behalf, a benefit from the Federal, state, or local governmental agency keeping such record;
(vii) A certified copy of a Federal, state, or local governmental record which was created on or prior to December 21, 2000, that shows that the applicant was present in the United States at the time, and establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the Federal, state, or local governmental agency keeping such record;
(viii) A transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities, accredited by the State or regional accrediting body, or by the appropriate private school association, or maintains enrollment records in accordance with State or local requirements or standards.
(4) To demonstrate physical presence on December 21, 2000, the alien may submit non-government documentation. Examples of documentation establishing physical presence on December 21, 2000, may include, but are not limited to:
(i) School records;
(ii) Rental receipts;
(iii) Utility bill receipts;
(iv) Any other dated receipts;
(v) Personal checks written by the applicant bearing a bank cancellation stamp;
(vi) Employment records, including pay stubs;
(vii) Credit card statements showing the dates of purchase, payment, or other transaction;
(viii) Certified copies of records maintained by organizations chartered by the Federal or State government, such as public utilities, accredited private and religious schools, and banks;
(ix) If the applicant established that a family unit was in existence and cohabiting in the United States, documents evidencing the presence of another member of the same family unit; and
(x) For applicants who have ongoing correspondence or other interaction with the Service, a list of the types and dates of such correspondence or other contact that the applicant knows to be contained or reflected in Service records.
(5)(i) The adjudicator will evaluate all evidence on a case-by-case basis and will not accept a personal affidavit attesting to physical presence on December 21, 2000, without requiring an interview or additional evidence to validate the affidavit.
(ii) In all cases, any doubts as to the existence, authenticity, veracity, or accuracy of the documentation shall be resolved by the official government record, with records of the Service and the Executive Office for Immigration Review (EOIR) having precedence over the records of other agencies. Furthermore, determinations as to the weight to be given any particular document or item of evidence shall be solely within the discretion of the adjudicating authority (i.e., the Service or EOIR). It shall be the responsibility of the applicant to obtain and submit copies of the records of any other government agency that the applicant desires to be considered in support of his or her application.
[Q] I bought and is still the sole owner of a franchise as a H1-B visa holder currently, the biz is on "autopilot" and I don't get involved in actively managing the biz. Would this affect the EB-5 application?
No, you can be in H1-B status and still own a business, as long as you don't actively manage the business.
According to another EB-5 practitioner, Boyd Campbell, "although Iranian Transaction Regulations do not require a U.S. business to get an OFAC license in order to accept Iranian citizens' investments from Iranian banks, but USCIS requires the license anyway, and OFAC has obligingly issued them, citing no authority to do so."
However, we heard that at least in one instance USCIS recently rejected an I-526 application whose money been deposited into a project's escrow account BEFORE OFAC license had been issued to the investor. This may or may not be a shift in USCIS policy towards Iranian applicants. This raises a question of whether under the current OFAC license application procedure and mechanism, an OFAC license can even be obtained BEFORE the funds gets deposited into an escrow account. Perhaps someone can enlighten us.
[Q] My wife and I are currently in E-2 status with an approaching E-2 expiration date. We are considering an EB-5 case. Any potential issues?
Whenever applicant in NIV status is considering an EB-5 case, there are issues involving maintaining NIV status. Therefore, a detailed paid consultation is recommended to elicit key facts and then decide on the best course of action.
What my George Washington tax law professor said about the tax law applies equally to immigration law: "Everything about tax law (substitute the immigration law here) and sex is about the timing."
The funny thing is that's the only thing I remember about the class.
Yes, but it should be noted that certain banks in Iran are on the prohibited list of United States governmental agencies. You need to make sure the bank used to wire funds is not on this prohibited list. If the bank does appear on the prohibited list of banks, then you need to obtain a license clearance from a U.S. governmental agency. This definitely is an extra burden for Iranians that will make Iranian cases tougher to get approved.
We found out from an EB-5 seminar held at October 19, 2009, Iraqi banks are not on a prohibited banks list. Things can get political when it comes to certain countries that are "at odds" with the interests of the United States.
Helpful links for Iranian EB-5 cases:
Another good resource: 31 C.F.R. Section 560 and Appendix A to part 560
Yes, with any EB-5 case involving a purchase of an existing business, such as restaurants or car wash, the problematic issue is not with whether such business will qualify as a "new commercial enterprise" -- it will if the business has been originally established after November 29, 1990 -- but with how the EB-5 investor's investment into such business will create 10 additional, new full-time positions?
Some people have told me "Hey, I will just purchase a business which laid off all its employees" or "I will just purchase assets, without its employees, and then re-hire or hire new employees of my own"; but good luck if you wish to climb up this dangerous tree.
[Q] I obtained E-2 visa 3 years ago by buying hotel for $2 Million USD and expanding and hiring additional 12 full-time jobs. Can I now go for EB-5 case based on this past investment and job creation?
Generally, the answer is YES, but how your investment for E-2 visa amount was spent and where it came from should be analyzed. For example, if the E-2 business itself invested its profit, then such investment would not qualify, because such spending would be deemed as "reinvestment" rather than a personal investment from the EB-5 investor. Also, if the investments were made little by little over a long period of time, that might pose some problems in demonstrating that you iinvested the requisite amount. You should also see if your business can maintain those jobs you created during your E-2 visa period for next several years. Then, if everything checks out, you can file I-526 petition to start the process rolling. Under the EB-5 law, just because you already invested and created the jobs, you cannot go straight to LPR status; you have to go through I-526 petition, CPR status and then LPR status via I-829 condition removal application.
There is nothing in U.S. immigration law prohibiting Iranian national from applying for EB-5 case. If there is nothing under the laws of Iran prohibiting Iranian nationals from pursuing EB-5 avenue, then it could be done. However, we would not be surprised if EB-5 cases for Iranians were more strictly scrutinized to make sure all requirements have been satisfied, including lawful source element, ㅆhe U.S. governmental agencies are pretty sensitive about EB-5 investors not using any banks on the prohibited lists, and there appears to be such a prohibited list of banks not to use for Iranian EB-5 investors.
Yes, under the EB-5 law, if you, the principal investor, dies you and your family acquire CPR status, your dependents can apply for I-829 separately and are eligible to receive permanent green cards.
If you do EB-5 case, your spouse and unmarried children under 21 years old can immigrate together. Step-children qualify under if certain conditions are met. They do not have to immigrate with you, if they do not wish to.
No, your parents cannot immigrate with you. They can do a separate EB-5 case, however.
Most DUIs do not make applicants ineligible to receive immigrant visas. However, in the event you have one DUI record during the last 3 years before the immigrant visa interview or total of more than two DUI records at any time, you will have to obtain a medical opinion letter from a designated medical doctor to show that you are not addicted to alcohol, before you receive immigrant visa. This may take additional month or two. Therefore, you may have to make plans accordingly.
Yes, under the U.S. immigration law, two separate cases to obtain green cards may be pursued at the same time, but you cannot obtain green card status through another classification if you already have a green card status until your green card status is terminated or abandoned. A careful evaluation of what stage you are currently in the middle of your labor certification and whether there is a real need for you to pursue the second avenue need to be conducted.
Yes, under the EB-5 law, a child under 21 years of age at the time I-526 is received by the USCIS qualifies to immigrate as a dependent, assuming of course that the I-526 immigrant petition is approved. Therefore, it is crucial for the USCIS to receive the I-526 petition before your daughter turns 21 years of age. Otherwise, your child will have to file as the principal applicant.
The Child Status Protection Act controls the analysis. Therefore, as long as the above requirements are met, even though your daughter is past 21 years of age at the time she interview for immigrant visa or at the time she enters the U.S. as an intending immigrant -- she can immigrate as a dependent.
Under the U.S. immigration law, certain criminal records, especially those involving crime of moral turpitude, will not be eligible to receive immigrant visas or to qualify for I-485 adjustment. However, many facts must be ascertained, including whether the family member with the criminal record will need to immigrate, etc. Complicating the scenario is the fact that the criminal law among countries differ: What is criminal under one country might not be deemed to be criminal act that makes one ineligible to receive immigrant visa under the U.S. immigration law. Therefore, a detailed consultation with a qualified U.S. immigration attorney is in order.
Yes, under the U.S. immigration law, when a child reaches 21 years of age, he or she cannot qualify to immigrate as a dependent of the parent who is the principal applicant. Therefore, there is no choice but to have the 21 year son proceed as the principal applicant. This means requisite funds probably has to be gifted to the son to meet the lawful source requirement. If the son wishes to continuously stay in the United States, he or she can choose to proceed under I-485 adjustment applicant for conditional green card rather than consular process, assuming I-526 has been approved, of course.
There is no specific minimum age requirement under the US immigration law, as far as we can see. Probably, the individual state's law on minimum age required to enter into valid contracts controls. However, the key requirement that consular officer will look for when the principal applicant is relatively young is whether that person possesses an ability or capacity to truly understand the requirements of the EB-5 project and other legal requirements and participate in the management of the new commercial enterprise -- nothing more, nothing less.
The CSC was kind enough to address this particular issue as follows:
While there is no minimum age requirement directly under the INA, the investor must establish competency in either the country or state of residence when signing contracts, agreements and other documents relating to the investment. Further, the investor must also establish that he or she is competent to engage in the management of the enterprise.
The nature and the length of your "illegal" stay has to be determined and then evaluated under the U.S. immigration law to determine if you are eligible to immigrate. Therefore, talk to your U.S. immigration attorney.
You, as the principal applicant, should probably be at least over 18 years old, not have serious criminal records, past fraudulent visa records, show that you earned the money lawfully.
Aside from the individual eligibility requirements, EB-5 Program and Project have to show that they meet the EB-5 law requirements, but this is not your job, although it should be your concern to choose a specific EB-5 Program and Project which meets the EB-5 requirements and has a good track records.
You can file I-526 petition at any time, any where. However, to obtain immigrant visa or I-485 adjustment approval, you and your dependent family members need to show that you are not subject to the 2-year home residency requirement, you satisfied the 2 years home residency requirement or you and your family have obtained a waiver of the 2-year home residency requirement. Of course, whether you would want to pursue I-526 petition process in this circumstance is another question altogether.
This is just one example of how in certain EB-5 cases, a good understanding of overall U.S. immigration law is a prerequisite to becoming a good EB-5 practitioner. I dare anyone to try to become a good EB-5 practitioner without having at least many years (something like 10 years) experience in general areas of U.S. immigration law.
[Q] I would like to know if the following situation would meet the lawful source requirement. Let's say I had 1 Million USD sitting in my bank account for 5 years, and I used a portion of this money for EB-5 case. Will this meet the lawful source requirement?
Yes and no. Yes, it shows that you had the legal control over the money at the time of investing, but you still have to show that you "lawfully" earned that money which has been sitting in your bank account for the last 5 years. However, USCIS is pretty reasonable when it comes to the types of documents that you need to submit to prove that the money in the bank account has been lawfully earned or received.
However, it should be noted that the level of scrutiny that CSC examiners will apply to the lawful source issue varies like temperatures affected by the political mood, etc.
The answer and the kinds of documents needed depends on individual facts of the case. Some applicants have an easier time meeting this documents without too many documents, but some need to submit more documents. In this aspect, a U.S. immigration attorney with a lot of experience in having handled EB-5 cases would be a definite plus. However, USCIS takes a "reasonable" approach when it comes to adjudicating the lawful source requirement. Without applying the reasonable standard, many EB-5 cases would not be able to meet the lawful source requirement. This fact alone is a significant improvements in the USCIS' handling of EB-5 cases.
[Q] I am a single mom who did not make substantial money. Can I receive the requisite funds as a gift from my relatively rich father and immigrate under EB-5 Program?
Yes, the lawful source requirement can be met by a gift. However, it still has to be shown that your father lawfully earned the money gifted to you. As to the format of the actual gifting, talk to the qualified U.S. immigration attorney regarding how the gifting should be structured, etc.
Under the EB-5 law, there is no age limit to pursue EB-5. In this respect, even though the U.S. EB-5 law has some requirements and restrictions, it reflects the free enterprise philosophy of the U.S. system in that as long as you made the money "lawfully", then there is no age limit, as long as you are above the minimum age to legally enter into a binding contract, which usually is above 18 years old. Of course, the consular officer, during the immigrant visa interview, will make their own determination as to whether you are "mentally capable" or "senile", in which case you will not be issued immigrant visa. In this sense, it's not advisable to crack some off-the-wall jokes with the consular officer, since the officer may determine that you are senile based on your bad jokes. :)
U.S. immigration law permits step-children to immigrate as dependents of their natural parents as long as certain requirements are met. You should consult with a qualified U.S. immigration attorney to evaluate the facts.
[Q] I have a handicapped child. Will this pose a problem in proceeding with EB-5 Program?
In most cases, having a handicapped child will not pose any problem. However, specific nature of the handicap should be explored to see if such handicap will cause a danger to others or require extraordinary public benefits.
[Q] I am currently in the removal proceedings. Can I proceed under EB-5 Program later on and obtain permanent resident status?
Being in a removal proceedings may deprive you of any future benefits of doing EB-5. Whenever you are in a removal proceedings and you wish to proceed under EB-5, you should promptly consult a qualified U.S. immigration attorney to evaluate the nature of the removal proceedings and how you can terminate the removal proceedings so you can still proceed to do EB-5 Program.