The Boring Part of EB5The Immigration Process

The Numbers

•Every year, approximately 90% of individual I-526 petitions filed are regional center affiliated ▫ 1,955 petitions filed in 2010 in total

•In 2010, there were 1885 EB5 visas used▫ In 2009, there were 4,218 EB5 visas used

•In 2010, 89% of I-526 petitions were approved (1369 petitions filed)

•In 2010, 83% of I-829 petitions were approved (274 petitions filed)

EB5 Visa Usage by CountryCOUNTRY VISAS

ISSUEDPERCENTAGE

China (Mainland)

772 41%

South Korea 295 16%

U.K. & N. Ireland

135 7%

China (Taiwan) 94 5%

India 62 3%

Other Countries

527 28%

The Process in a Nutshell

•File I-526 Petition•Investor obtains Conditional Green Card

with a validity period of 24 months•At 21 months, investor files I-829, Petition

to Remove Conditional Status▫Approved, investor obtains unconditional

green card Eligible to naturalize after five (5) years of

green card status▫Denied, possible referral to deportation

EB5 Requirements• Investor must invest or actively in the process of

investing $500,000 or $1 million dollars in an enterprise

• Investor must make a contribution of capital that is “at risk”

• Capital invested must have been obtained through lawful means

• Enterprise must create 10 full time jobs• Investment must be made in a “new commercial

enterprise” or “troubled business”• Investor must be engaged in the management of

the enterprise

“Investment” and “Capital”

•USCIS defines an investment to mean the contribution of capital. ▫No loan arrangements▫Capital must be “at risk”

•Capital can be▫Cash or cash equivalents▫Equipment, inventory or other tangible

property▫Loan secured by investor’s assets

Actual Commitment of Capital

•Simple transfer of money into the corporate account does not constitute commitment of capital. ▫Must have some meaningful action with the

money•Escrow accounts with proper escrow

agreements are permissible.▫Unequivocal release of funds upon

approval of I-526 or adjustment of status

Source of Investment Money

•Invested capital must have been obtained through lawful means: ▫Income

Business records or tax returns▫Sale of house, business or other asset

FMV – third party valuations▫Equity positions in existing businesses

Proof of dividends or certificates of stock•Be aware of OFAC for Iranian investors

▫Office of Foreign Assets Control (Dept. of Treas.)

Job Creation

•Ten permanent full time employees before filing I-826▫Direct, Indirect and Induced ▫No independent contractors

•Full time means 35 hours a week▫Job-sharing is allowed

Two or more employees share one FT job As opposed to two part-time jobs

I-526 Petition

•Form I-526▫Due for revision in 2011

•Cover Letter summarizing Investor/Petitioner’s qualifications and eligibility for EB5 green card.

•Supporting Documentation•Filing Fee of $1,500 made out to USCIS•G-28 (Attorney Representative Form)

I-526 Supporting Documentation•Proof of Commercial Enterprise

▫Corporation documents▫Business license ▫Proof of TEA designation

•Investment▫Source of money▫Investment “at risk”

•Job Creation▫Comprehensive Business Plan

I-526 Supporting Document, con’t•Investor’s management position

▫Statement of investor’s position and job description

▫Evidence petitioner is corporate officer

I-829 Petition Process

•Must file within 90 days before the expiration of conditional green card

•If I-829 is not filed, green card status is automatically terminated▫NTA will very likely issue

•Two purposes of I-829 petition▫Fraud detection and prevention▫Compliance to the requirements of the EB5

program

The 5 Statutory Reasons for Denial•Enterprise was established for sole

purpose of evading U.S. immigration laws•Enterprise was not actually established•Investor did not actually invest and

sustain capital into the enterprise•Investor’s capital was obtained through

illegal means•Investor not otherwise conforming to

requirements of EB5 program

I-829 Petition

•Form I-829▫Due for revision in 2011

•Copy of green card•Supporting Documentation•Filing Fee of $3,835 for primary investor

▫Additional $85 for each additional dependent family member

•G-28 (Attorney Representative Form)

I-829 Supporting Documentation•Commercial Enterprise was established•Investor actually invested the capital•Investor sustained the enterprise and the

investment through the 24 month period•Investor created or can be expected to

create within a reasonable time 10 full time jobs

•Enterprise maintained the same number of existing employees as during the pre-investment level if enterprise was a troubled business

Family Members in the I-829 Process

•All family members included in the I-526 petition can be included in the I-829 even if:▫Children are over 21 years old▫Children have gotten married▫Spouses have divorced

•Dependent family members can have their conditional status removed only if USCIS removes conditional status of primary petitioner (investor)

Adjustment of Status vs. Immigrant Visa (Consular) Processing•Adjustment of Status is the process for a

foreign national who has legal entry into the United States to obtain a green card based on an approved petition of some type.▫Adjudicated by USCIS (6-8 months)

•Consular Processing is the process for a foreign national who is outside the United States to obtain an immigrant visa which is the DOS’ equivalent of the green card. ▫Adjudicated by DOS at the U.S. Consulate

(7-9 months)

Automatic Extension of LPR Status•Upon receipt of a properly filed I-829,

Investor’s green card status is extended automatically until the petition is adjudicated

•Travel is allowed •Employment is allowed

Initial Document Collection

•Indentifying information for primary petitioner and family members▫Birth Certificates▫Passports▫Marriage/Divorce/Death Certificates▫Government issued ID cards or family

registries•Proof of Familial Relationship

▫Adoption papers

Other Issues of Inadmissibility

•Past Immigration Violations▫Visa overstays▫Fraud▫Misrepresentations

•Criminal Issues▫Arrests and convictions

•Affiliations to certain groups▫Communist Party membership

EB5 Case Processing Times

•Form I-526▫Five Months – Target ▫Five Months – Current▫Eight Months – Reality (based on JIT

report)•Form I-829

▫Five Months – Target▫Six Months – Current▫Six Months – Reality (based on JIT report)

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