USCIS to Improve EB5 Immigrant Investor Program

The Employment Creation Immigrant Visa (EB5) program was established to provide the means for a foreign national investor to secure permanent residence (a “green card”) by investing in a U.S. business, thereby, creating jobs for U.S. workers. Historically, the program has been fraught with problems. The United States is renowned for its entrepreneurial spirit. This exaltation of enterprising and entrepreneurial business persons, however, has not always translated into entrepreneur-friendly immigration policies. The U.S. Citizenship and Immigration Services (USCIS) currently is making concerted efforts to address the problems in order to allow the EB5 program to become a viable solution for foreign investors seeking investment opportunities in the United States.

Overview of the EB5 Program

The EB5 program was designed in 1990 to encourage foreign nationals to invest in commercial enterprises within the United States, creating jobs for U.S. workers. The program grants a foreign national investor, whose investment meets certain legal criteria, with the ability to apply for permanent residency.

Criteria for EB5 Eligibility

In order to qualify for the EB5 program, the following criteria must be met.

• The foreign national must invest a minimum of $1 million in a U.S. business that creates full-time jobs for at least ten (10) U.S. workers. Or, if the business and jobs will be created in a “targeted employment area” (a rural area or area of high unemployment) the foreign national is only required to invest $500,000.

• The investor may set up a new for-profit company, or even invest in an existing company, if certain criteria are met. However, many investors choose instead to invest in regional centers that have been pre-approved for the EB5 program by the USCIS. Regional centers consist of one or more commercial enterprises, and generally are located in targeted employment areas. Investments within these regional centers are benefited by the ability to count jobs created directly, as well as those jobs created indirectly by virtue of the commercial enterprise.

Grant of Two-Year Conditional Green Card Status

In the initial EB5 application, the foreign national must submit evidence to the USCIS that demonstrates that the EB5 criteria will be met within approximately two years. If the application is approved, the investor and his/her immediate family members are granted permanent residence on a two-year, conditional basis.

After two years, the foreign national must submit evidence to show s/he has substantially complied with the plans submitted in the initial application. At this point, if the application is approved, the investor and each of his/her family members are granted standard, unconditional permanent resident status.

Earlier USCIS Delays and Denials Under the EB5 Program

Unfortunately, ever since the EB5 program was implemented, it has never quite lived up to its potential. The reasons have included a lack of USCIS personnel with the specialized economic and business expertise to properly evaluate the business plans submitted by applicants. The adjudication of these cases was often sluggish. There were problems with fraud, and various reactions and changes as a result. The program was further hampered by uncertainty and denials due to what many consider a narrow, inflexible USCIS view of the applicable regulations.

Brighter Days May Be Ahead for EB5 Program

Hope is on the horizon for foreign national investors interested in the EB5 program. USCIS Director Alejandro Mayorkas has made revamping the EB5 program a top priority. In November 2011, Director Mayorkas released a draft memo outlining some of the improvements being implemented within the program, which can be found on the USCIS WebSite. Some of the changes include: premium processing for certain EB5 applicants and petitions, the hiring of experienced economists to provide expert support to USCIS adjudicators, and the addition of a special eMail contact for regional center applicants.

The most significant aspect of the memo may be Director Mayorkas’s simple act of putting forth to USCIS officers the clear intent of Congress in creating the EB5 program. As Mayorkas points out, the program is “based on our nation’s interest in promoting the immigration of people who invest their capital … in the United States and help create or preserve needed jobs for U.S. workers by doing so. Through our thoughtful and careful adjudication of applications and petitions in the EB5 program, we can realize the intent of Congress to promote the immigration of people who invest capital into our nation’s economy and help create jobs for U.S. workers.”

Putting Americans to Work

In short, the EB5 program is all about creating much-needed U.S. jobs. At a time when the economy is down, it is only logical to support the utilization of a program that creates jobs for U.S. workers and ultimately benefits U.S. taxpayers. We are hopeful that changes to the program will make it a viable and attractive option for a larger group of foreign investors. The Murthy Law Firm can assist investors and potential investors interested in considering the EB5 green card option to obtain conditional and permanent resident status in the United States.

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