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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?

[HOT] Can construction jobs be counted as direct jobs in a RC based EB-5 project?

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.

[Q] Can a NCE contain a provision to return a real estate as an exit or payback to investors?

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...

[Q] Can an affiliate company of the NCE create requisite jobs?

No. See: http://www.uscis.gov/err/B7%20-%20Form%20I-526%20and%20I-829/Decisions_I...

In essence, requisite jobs must be created by an entity that qualifies as a NCE or JCE.

[HOT] [Q] Given USCIS' recent shift in position on "tenant-occupancy", can an office building development be the basis for an EB-5 project?

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."

[Q] May unsecured personal loan be used as EB-5 money for I-526?

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] Can I work for another employer after I invest? When can I get back my EB-5 money?

[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?

Answers:

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.

[Q] Can someone apply for one regional center and cover several, non-contiguous geographic areas?

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.

[Q] Can a LP be formed to purchase state revenue bonds to build let's say an infrastructure and qualify for a RC EB-5 project?

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.

[Q] Can a LP be formed to purchase bonds issued by a city for its infrastructure project?

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] Can you get an advance from credit cards and come up with EB-5 funds?

[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] Can unsecured loans be used as EB-5 investment funds?

[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] How does USCIS interpret "rural area"?

[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."

[Q] I am currently in out of status nonimmigrant status for some time. Can I pursue EB-5 case?

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.

[Q] Can people eligible (grandfathered) under 245(i) obtain I-526 and adjust under 245(i)?

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: