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EB-5 Law & Related U.S. Law
FAQs on EB-5 law and related immigration law
[HOT] [Q] Can you adjust and obtain CPR based on 2nd I-526 after giving up current CPR status, per Dec 11, 2009 Neufeld Memo?
For the reasons explained below, we believe there is no legal support under the current U.S. immigration law for the outlined procedure of reacquiring CPR status just given up via Form I-407 by filing I-485 adjustment of status application. What the Memo is espousing is in fact a violation of the U.S. immigration law.
[Q] Can two investors join together to make up the requisite capital investment?
[Q] Two questions. Can two individuals join and invest 100% of either $500k or $1m as single investment entity and would such investment still be valid to qualify for EB5?
Let's say it's a TEA case, and the requisite capital investment amount is $500,000. Two EB-5 investors cannot together come up with this amount; neither investor will satisfy the capital investment amount. An easy way to understand is to realize that both the capital investment amount and job-creation requirement must be met by each EB-5 investor, separately.
[Q] Can a failure to create requisite jobs within 2 years of CPR period and reasonable period be "material change"?
[Q] Sometimes, EB-5 projects may encounter delays to projects caused by various factors that make it tough to create jobs within 2 years of CPR period. Will this be deemed a "material change" under the December 11, 2009 Neufeld guidance memo and therefore require a new, 2nd I-526 filing?
Yes, if one chooses to accept the argument that "material change" after I-526 approval must require a new, 2nd I-526 petition filing? But "material" to what and in what respect to I-829 requirements and why? The memo appears to not set forth a clear standard for determining what changes are indeed "material" -- to what?
[Q] Can I invest $500,000 in a rural area for a direct, individual EB-5 case where 60% is from a bank loan?
[Q] I am planning on doing a direct, individual EB-5 case based on a lowered $500,000 investment in a rural area, i.e. TEA qualification. I am planning on investing $200,000 of my own money and coming up with the remaining $300,000 from a collateralized bank loan. Is this permissible?
It all depends on which asset is used to collateralize the loan of $300,000 from the bank. If the underlying EB-5 investment asset was used as a collateral to obtain a loan of $300,000, then forget it -- you can't do it. But if your own personal asset, such as your house, was used as a collateral to obtain additional $300,000, then that would be fine.
[Q] What is my status if I have to file new, 2nd I-526 and pursue another I-485 for CPR under Neufeld memo?
[Q] As per the new EB 5 guidelines contained in the December 11, 2009 Neufeld guidance memo governing "material change", I may need to apply for a fresh I-526, and once this gets approved I need to abandon my CPR using form 407 and reapply for adjustment of status again. My question is what would be my status after abandoing of CPR and waiting for adjustment of status the second time around? Can I live and work here legally while waiting for adjustment of status the second time around? Also I read somewhere that you cannot apply twice for adjustment of status under INA 245(a) - if so what does one do?
First, in the event you accept the validity of the Neufeld memo as the correct application of the EB-5 law AND you accept the fact that there was "material change" -- which USCIS has not explained or defined clearly -- then yes, you may file a new, second I-526 immigrant petition and file I-407 to give up the existing CPR and then submit a new I-485 to acquire a new CPR.
[HOT] [Q] For a troubled business EB-5 case, how many jobs must be saved?
[Q] Let's say a troubled business has 50 jobs, and 4 alien EB-5 investors invested and saved 40 jobs, will all of them get their permanent green cards?
Common sense would say "Of course." However, according to a recent EB-5 stakeholders meeting, USCIS orally "opined" that all of a troubled business’ jobs must be saved in order for any investor to qualify for condition removal.
[Q] Can an investor submit a second amended I-526 petition if the I-829 petition was denied or remains pending?
Answer: If the petition was denied, then it is not possible to submit the second petition. If it remains pending, you can submit withdrawal of the I-829 along with the second I-526.
Source: CSC Stakeholders Meeting on April 28, 2010 at Laguna Niguel California.
[Q] When do I have to marry my boyfriend/girlfriend to include him/her in my EB-5 case?
[Q] I’m currently on F-1 visa status, and am planning to marry my boyfriend (who is also on OPT status in the US) in the next few months. Can we file our application together with me as the principal applicant, and my boyfriend as the dependant? Do we have to get married before we submit the EB-5 application, OR can we get married after the application has been submitted, and is under review?
Under the general U.S. immigration law, you don't have to marry your boyfriend BEFORE you submit the I-526 immigrant petition in order to include him in your EB-5 case; but you do have to marry him before you obtain immigrant visas. However, practically speaking, to avoid a delay in the processing, I would just marry before submitting the I-526 immigrant petition.
[Q] Can I, a potential EB-5 investor, use salary earned while out of status, even though I reported income?
No, I guess USCIS does not want to encourage people from working in out-of-status.
[Q] If Principal Applicant refuses to submit I-829s, can dependent family members submit theirs separately?
No, not unless they are divorced, or the principal applicant is dead. This can create all kinds of sticky situations for attorneys and everyone involved.
