At the outset, it is worth informing you that the issues surrounding the possible new regulations for the EB-5 immigrant investor program have finally been laid to rest. On February 15, 2019, President Trump signed the Consolidated Appropriations Act in order to avert another government shutdown. EB-5 extension legislation was attached to the Act, which has paved the way for the continuation of the program until September 30, 2019.
The extension means that the same legislation which has guided the administration of the program will still be in force. The investment amount, which has been the major topic of issue, will also remain the same ($500,000 or $1,000,000 depending on the location of the enterprise). In addition, the required number of U.S. jobs to be created by the investment remains at ten.
What the EB-5 Extension Means for Immigrant Investors
The program extension, as expected, came with mixed feelings among both the existing and prospective EB-5 investors. While it is good to know that the government has continued to give immigrant investors another chance to become permanent residents via the EB-5 program, a look at the crisis that has been affecting this program in the past few years suggests that much still lies ahead.
First, the short series of extensions that the program has experienced in recent times seems to be an indication of the possible problems in years to come. In the past year alone, it has been extended twice, with each extension having issues preceding it.
Apart from the short extensions, another recent drawback has been the alleged misuse of the program by President Trump’s son-in-law, Jared Kushner, and his family. The allegation that the Kushners have been using the investment funds to run their real estate business has subjected the EB-5 program to increased scrutiny. There have been accusations that Kushner is using his position as adviser and in-law to the president to benefit his family’s company. The matter became tenser in 2018 when Kushner’s sister, Nicole Meyer, mentioned her brother’s name while persuading Chinese investors to invest in a real estate project.
Also, visa backlogs have been another hindering factor causing delays in the EB-5 processing time. Before, the wait time used to be about six to eight months. Now, it is taking up to two or even three years to get an EB-5 visa application approved. Many investors, after filing their I-526 petitions still have to wait for several months before their applications even get processed. All these are indications that the program may not be made permanent like many investors may wish to see.
The Future of EB-5 Investor Program
Since its inception in 1990, the EB-5 immigrant investor program has seen several amendments by the U.S. government. In January 2017, an Advance Notice of Proposed Rulemaking was issued to seek public comments on the planned restructuring of the EB-5 program by the Department of Homeland Security (DHS). The ANPRM sought to look at three different areas of the program which are:
Priority Date Retention
The DHS would like to make sure that the backlogs of visa applications do not continue to make immigrant investors become ineligible due to circumstances which are outside of their control, such as the termination of an underperforming regional center while waiting for their priority date to become current. The proposed regulations will allow EB-5 petitioners to use the priority date of an approved I-526 petition for their subsequent petitions. This regulation will be a significant relief for immigrant investors.
Increased Minimum Investment Amounts
The regulations also proposed an increase in the investment amount from the current $500,000/$1,000,000 to $1,350,000/$1,800,000 to “keep pace with inflation and the real value of investments.”
In addition, the DHS proposed to make changes to the Targeted Employment Areas (TEAs) by adding towns and cities with more than 20,000 people to the definition of “high unemployment areas.”
While the general public comments were generally supportive of the priority date proposal, they were almost uniformly critical of the proposed increase in a minimum amount and TEA designations. The DHS has been silent over the proposal since the end of the commentary in 2017. However, there are signals that efforts are being made among the concerned government agencies to finalize the proposed regulations.
Can I File My EB-5 Visa Now?
Amidst fear that the investment amount may increase, there have been rising doubts among prospective investors. Even with the extension, many are still unsure if it will be safe to proceed with investing their hard-earned money into the program. However, with the new extension in place, the program is safe for the time being.
The most important thing at the moment is that the program is currently up and running; so this could be your opportunity to realize your dream of getting an EB-5 investor visa. The seven-month extension (from March September) has provided ample time for you to get your application underway. Whether you are already in the U.S. or you want to migrate from your home country, you should be able to make it happen within the timeframe under the new extension.
In light of the above possible changes, which might make filing an I-526 more stringent and expensive in the future, it is safe to say now is the best time to apply for you to apply for an investor visa. Even if the USCIS doesn’t process your petition before September 30th, your application is still going to be treated under the existing rules guiding EB-5 green card processing.
I Am an EB-5 Green Card Holder: Can I Renew My Resident Status Now?
Yes, you can file a renewal application now. However, EB-5 green card renewal can be explained in two different ways. The first is the removal of conditions on permanent resident status for those with a conditional two-year visa. The other category is a renewal for those with unconditional permanent resident status through a ten-year validity card. The process for each category is explained below:
Removing Conditions on Your 2-Year Validity Card
If you were issued EB-5 green card with a conditional residence status and a two-year validity period, you are expected to file a petition to remove conditions within 90 days of its expiration date. To do this, you will need to file and submit an I-829, Petition by Entrepreneur to Remove Conditions. Until the conditions are removed, your status is still considered to be temporary and may be subject to change. After removing the conditions, you will then get an unconditional EB-5 green card which will be valid for ten years.
Why Was I Issued A Conditional EB-5 Green Card?
According to U.S. immigration law, all visa applicants are required to meet certain conditions as specific guidelines for their visa classifications before they can be considered eligible. It is also expected that you adhere to the rulings binding your resident status after the visa has been issued to you. The short validity is essentially a form of probation. The two-year period is there to be sure you have been following the directives of your resident status to the letter and to show that you deserve an unconditional permanent residency.
As an EB-5 investor, apart from being a law-abiding U.S. resident, you are also expected to meet the definition of putting your “Capital at Risk” as stated in the EB-5 training manual by the USCIS. This means:
- You have met the requirements of the investment amount and source of funding
- You have created the number of U.S. jobs as required; and
- You can prove that the investment will benefit the U.S. economy
Your I-829 should be filed along with these documents as evidence to justify the removal of conditions on your permanent resident status. A successful removal process will grant you an unconditional green card with a ten-year validity period.
Renewing Your EB-5 Green Card After 10 Years
If you have been issued an unconditional EB-5 green card with a ten-year validity period, you are required to renew it six months before its expiration. To do this, you will need to file and submit an I-90, Application to Replace Permanent Card. The process is as simple as renewing other immigrant visa categories in the U.S. Unless you have committed a crime in the past ten years since you were issued the card, you are most likely going to have a straightforward EB-5 renewal process.
EB-5 Green Card Renewal Fees
Again, this depends on your visa validity period. If you are filing an I-829 for the removal of conditions on your two-year green card, the filing fee is $3,750 and the biometrics fee is $85. That is $3,835 in total.
For renewal of unconditional ten-year validity green card, you will need a total of $540. The cost is for both filing fee for the I-190 ($455) plus the biometric screening fee ($85).