Since 2000, the EB-5 program has helped nearly 123,000 qualified investors and their families gain permanent residency in the United States. And if you’re considering investing in this program to get your green card, you must understand how USCIS implements EB-5 law.
Recent changes have affected the investment amounts, job creation requirements, and more. This article will discuss the critical aspects of EB-5 law implementation, recent reforms, and USCIS enforcement practices to help you make more informed decisions.
What Investors Need to Know More About EB-5 Law
The EB-5 Immigrant Investor Program has specific rules that every investor must follow. Let’s break them down.
1. Investment Requirements
To meet the investment requirements for the EB-5 program, you must invest at least $800,000 in a Targeted Employment Area (TEA) or $1,050,000 in a non-TEA project.
Your investment must also be “at risk,” meaning there can be no return guarantee. This doesn’t imply that the investment must be inherently risky but that you cannot have a guaranteed buyout agreement. Additionally, the funds must remain invested throughout your conditional permanent residency period.
2. Job Creation Criteria
The main goal of the EB-5 program is to create jobs. Your investment must create and preserve at least ten full-time jobs for U.S. workers, lasting at least two years.
The USCIS credits two main types of jobs. These are:
- Direct jobs. People employed in the business you’ve invested in.
- Indirect jobs. Jobs created in supporting industries. (counted for regional center projects)
You need to show how your investment will meet this job creation requirement.
3. Targeted Employment Areas (TEAs)
TEAs are areas that are either rural or have high unemployment. These are the “priority zones” for economic growth. To attract more EB-5 investors, the investment thresholds in these areas are lower.
A TEA allows you to invest at least $800,000 instead of $1,050,000. They can offer good investment returns and high job creation potential. The Department of Homeland Security now decides what qualifies as a TEA.
Note: TEA designations may change from time to time. You should still do your research before investing in any TEA project.
4. Regional Centers
Regional Centers are organizations approved by USCIS to sponsor EB-5 projects. They can make the investment process easier for you. Regional Centers often handle the paperwork and project management. Also, they can count indirect jobs as related to the job creation requirement. This can make it easier to meet the 10-job minimum.
5. Source of Funds
You must prove your investment money comes from legal sources. Show a clear paper trail of how you got your investment funds. Common sources include:
- Savings
- Business profits
- Sale of property
- Or gifts.
Each dollar must be accounted for, so compile your tax returns, bank statements, and property deeds.
Pro Tip: The USCIS scrutinizes this information closely. So many investors work with lawyers to prepare this documentation.
6. Conditional Permanent Residency
When your EB-5 petition is approved, you’ll get a two-year conditional green card. This is NOT the same as permanent residency.
You’ll need to file another petition (Form I-829) near the end of these two years. This petition asks USCIS to remove the conditions on your residency. In your petition, show that you’ve met all EB-5 requirements. If you do, you could retain your residency status.
How Recent EB-5 Legislation Impacts Your Investment
Recent changes to EB-5 legislation could significantly affect your investment and immigration plans. Here’s what you need to know and how it impacts your path to a U.S. green card.
1. EB-5 Reform and Integrity Act of 2022
This act aims to prevent fraud and improve oversight. It set new investment amounts and created visa set-asides for specific areas.
The minimum for projects in Targeted Employment Areas (TEAs) is now $800,000. For non-TEA projects, it’s $1,050,000. The new law also includes a mechanism to adjust these amounts for inflation every five years.
2. Visa Set-Asides
The new law reserves 20% of EB-5 visas for rural areas. Ten percent (10%) are set for high unemployment areas, and 2% for infrastructure projects.
If you invest in one of these areas, you might face less competition for visas, which could mean faster processing times. If unused, the set-asides are reset each fiscal year.
3. Concurrent Filing
Concurrent filing is a new option for some EB-5 investors. It allows you to file your I-485 (adjustment of status) simultaneously with your I-526 petition. But remember, this option is only available if you’re already legally in the U.S. Concurrent filing can help if you want to get work authorization and travel permission sooner.
Note: Your I-485 will be processed once your I-526 is approved.
4. Grandfathering Provisions
The new law includes protections for investors if their regional center is terminated. Your eligibility won’t be affected if you’ve filed your I-526 petition. This applies even if USCIS hasn’t approved your petition yet.
You can also move your investment to a new project or regional center. This provides an added level of security in case your chosen regional center goes wrong.
5. Enhanced Integrity Measures
The Reform Act brought stricter oversight to the EB-5 program. Regional centers must now submit annual statements and certifications to USCIS. The law also created an “Integrity Fund” to finance audits and investigations. USCIS can now bar investors for security reasons. These measures were added to prevent fraud, protect investors, and make the program more transparent.
You will benefit from these increased securities if you plan to invest in an EB-5 project. However, they also lead to longer processing times for some applications.
The Influence of EB-5 Reform on Job Creation Requirements
The main goal of the EB-5 program is job creation, which is why recent reforms have changed how job creation is verified.
Job Creation Calculation Period
You have 24 months from your I-526 petition approval to create the required jobs. This clear timeline helps you plan your investment more effectively. You’ll need to choose projects that can create jobs quickly.
Sustainment of Investment
The reform requires you to keep your investment in place for at least two years after becoming a conditional permanent resident. This is longer than before. Also, your investment must remain “at risk” during this time. You can’t withdraw or get guaranteed returns.
So, plan for an extended investment period when choosing your EB-5 project.
Indirect and Induced Job Creation
The reform still allows regional center projects to count indirect and induced jobs. These are jobs created due to your investment, but NOT directly by the project itself.
This is an advantage of working with regional centers. However, finding a reliable center is essential because USCIS scrutinizes these job creation claims strictly.
Rural and Infrastructure Projects
The new law encourages investment in rural areas and infrastructure projects. Due to set-asides, these projects can offer faster visa processing. Consider these projects if you’re looking for a quicker path to your green card via EB5.
How USCIS Enforces Law for Immigrant Investor Program
These are the different methods USCIS uses to ensure compliance and prevent fraud in the program.
Application Review Process
USCIS checks if your investment meets the minimum amount and is appropriately “at risk.” They will verify your funds come from legal sources. And more importantly, your job creation plans.
This process can take many months. Be prepared to provide detailed documentation. And work with experienced professionals to prepare a strong application.
Site Visits and Audits
USCIS conducts unannounced visits to EB-5 project sites. They check if the project exists and is progressing as claimed. They may interview employees to verify job creation. These surprise visits help ensure projects are confirmed and are part of USCIS’s efforts to prevent fraud.
Regional Center Compliance
Regional centers must file annual reports detailing their activities and finances. USCIS reviews these reports closely. They check that regional centers are promoting economic growth. USCIS can terminate regional centers that don’t comply.
So, when you’re choosing a regional center, look for one with a good compliance record and ask about its experience with USCIS audits.
Interagency Cooperation
USCIS shares information about potential securities violations with the Securities and Exchange Commission (SEC). The FBI helps with background checks on investors and project developers. And the Department of State assists with visa processing. This means multiple agencies may review your EB-5 investments. So, always provide consistent information in your applications.
Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)
USCIS may send an RFE if they need more information about your petition. They’ll ask for specific documents or further explanations. NOIDs are more serious. They mean USCIS plans to deny your petition unless you provide convincing evidence. Both RFEs and NOIDs have strict deadlines for response. Work with your lawyer to respond fully and promptly.
Integrity Fund and Enhanced Oversight
The EB-5 Reform Act created an Integrity Fund to finance program oversight. This fund comes from fees paid by regional centers and investors. It pays for audits, site visits, and investigations. USCIS now has more resources to monitor the program. They can hire more staff and improve their systems.
Simplify Your Path Through EB-5 Regulations with Austin EB5
USCIS enforces these laws to ensure compliance with all EB-5 investments and projects. Understanding these laws is non-negotiable if you want to get your U.S. green card via the EB-5 program.
At Austin EB5, we offer expert guidance and compliant investment opportunities. Visit our website to learn more about our projects. Or schedule a call with our team to discuss how we can support your EB-5 investment goals.
EB-5 Law Implementation FAQs
What is an EB-5 project?
An EB-5 project is a specific business venture in which an EB-5 investor invests capital. To meet the investment and job creation requirements, these projects must create at least ten full-time jobs for U.S. workers.
How can an EB-5 investor demonstrate job creation?
An EB-5 investor must demonstrate that their investment has created at least ten full-time jobs for qualifying U.S. workers within two years of the investment. This can be shown through job reports and other documentation.
What is the role of the USCIS in the EB-5 program?
The U.S. Citizenship and Immigration Services (USCIS) administers the EB-5 program, reviews applications, and determines whether investors meet the eligibility criteria for a green card through the EB-5 investor visa program.
What is the EB-5 regional center program?
The EB-5 regional center program allows investors to pool their investments into regional centers. These centers focus on promoting economic growth in specific areas and can simplify the process of meeting job creation requirements.
Can an EB-5 investor’s family benefit from their investment?
An EB-5 investor’s spouse and unmarried children under 21 can also obtain permanent resident status through the EB-5 investor green card process if the investor meets the program’s requirements.
What happens after an EB-5 investor files for adjustment of status?
The EB-5 investor must wait for USCIS to process their application. If approved, they will receive a conditional permanent residence status valid for two years.
What must an EB-5 investor do to remove conditions on their permanent residence?
The EB-5 investor must file a petition to demonstrate that the capital investment and job creation requirements have been met within the two-year conditional period.
