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EB-5 Law & Related U.S. Law
FAQs on EB-5 law and related immigration law
[HOT] Where can I find USCIS info on EB-5 Program?
USCIS has its own info at its official website:
In our opinion, USCIS should and could do a better job posting more helpful info on EB-5 area, including a FAQ on various issues regarding EB-5.
[Q] After I-526 approval, can a F-1 status applicant during 60 days grace period file I-485 adjustment of status?
Yes, as the applicant is deemed to be in nonimmigrant status during the 60 days grace period.
[HOT] [Q] Where in your website can I obtain an overview of the EB-5 law and Program?
Go to: http://eb-5center.com/overview for an overview. You should always read this section before getting into more detailed info.
[Q] Can an EB-5 investor invest in a LLC entity and be considered to have a role in the management per EB-5 reg?
Yes, but I rather go with a LP (per Uniform LP Act) as it is specifically mentioned in the reg. Why try to be a hero?
[HOT] [Q] What is the concept of "material change" in context of EB-5 cases?
The concept of "material change" always existed in a factual context where immigrant petitions, including I-526s, were pending and not yet adjudicated. In essence, the "material change" concept prohibited an immigration petition which did not comply with the requirements for approval of the immigrant petition from being approved through a fix of the deficiency while the immigrant petition was filed, pending and not yet adjudicated. For example, in context of a U.S. citizen filing I-130 immigrant petition for his alien spouse, if the U.S. citizen petitioner was still married to another woman at the time of filing I-130, then legally, the I-130 cannot be approved. And if the U.S.
[HOT] [Q] I am currently present in the US in nonimmigrant status. What are effects of becoming unlawfully present to my EB-5 case?
You have to distinguish between "out of status" and unlawfully present. When you become "out of status" or fail to "maintain your status", you may or may not be deemed to be accruing "unlawful presence". Basically, you have to avoid acquiring unlawfully presence period of 180 days or more, and avoid 3 year and 10 year bars from obtaining any immigrant or nonimmigrant status.
If you cannot maintain your status all the way until you obtain conditional green card, you better talk to an experienced immigration attorney regarding your case because this has serious legal and practical consequences to your future ability to obtain any kind of visa or status (both nonimmigrant and immigrant status).
[Q] How does one establish the TEA eligibility for a high unemployment area (HUA)?
Relevant regulations state:
(ii) In the case of a high unemployment area:
(A) Evidence that the metropolitan statistical area, the specific county within a metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150 percent of the national average rate; or
[Q] Can I use my pension money via trustee of the pension fund to invest in an EB-5 investment?
[Q] I have a question about the EB5 scheme which I hope you can help with. I do not have $500k cash. However, I do have $500k cash sitting in my personal pension fund for which I can prove that I am the beneficial owner and it has been lawfully gathered. Can I use this cash, via the trustees of the pension fund, to invest in the EB5 scheme to gain a green card in my name?
Although USCIS has not given a definitive guidance on this issue, the answer is probably not, because the pension under the control of the trustee is considered to be another entity, and the investment money has to come directly from you, individually.
Many foreign EB-5 investors want to be able to wire directly from the pension account to an escrow account to avoid tax consequences, but the EB-5 regulations say the investment must be from the investor. You could argue that the pension money belongs to investors, but legally speaking, although the investor has beneficial interest, the trustee has control, so I think USCIS is right about this one.
[Q] Is an EB-5 Regional Center subject to Securities Exchange Commission regulation?
USCIS has stated:
The Security Exchange Commission (SEC) is the appropriate source to provide guidance regarding whether an entity and/or particular capital investment instrument is subject to SEC regulations. USCIS does not oversee EB-5 Regional Center compliance with SEC regulations. It is important to note that many other federal government agencies are involved in the oversight of business entities and capital investment instruments that are utilized for investments within the United States, to include the SEC. Unlike the Executive Order 12959 requirements regarding USCIS’s assistance with OFAC regulations, USCIS typically has no role in regulating aspects of EB-5 capital investment unrelated to immigration.
[Q] In troubled business case, is the number of jobs that have to be preserved 10 or more, or not less than the number of employees before the investment??
USCIS has stated:
Answer: Every EB-5 investor must create at least 10 jobs as a result of his or her capital investment. However, meeting the job creation requirements through job maintenance in a “troubled business” also involves demonstrating that the number of existing employees were maintained at no less than the pre-investment level during the EB-5 investor’s two year period of conditional permanent residence. [See 8 CFR 204.6(j)(4)(ii) & 8 CFR 216.6(c)(1)(iv).]
8 CFR 204.6(j)(4)(ii) reads:
