USCIS Proposes Changes to EB-5 Policy for Foreign Investors

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The U.S. Citizenship and Immigration Services (the “USCIS”) published on Feb. 14, 2013, a revised draft of a proposed policy memo concerning the Immigrant Investor Program (otherwise known as the EB-5 visa program).

This program for immigrant investors was created by Congress in 1990 to stimulate the domestic economy through capital investment and job creation by foreign entrepreneurs, and now the USCIS is seeking to clarify, and in some ways, liberalize some of the interpretations of the program’s requirements in order to encourage more pro-growth domestic investment.

Currently, all EB-5 visa applicants must agree to invest in a “new commercial enterprise,” meaning an enterprise established after Nov. 29, 1990, or one established prior to that date if the business is restructured into a new enterprise or if it is expanded so that a 40-percent increase in net worth or number of employees occurs by virtue of the investment.

This investment must create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years of the immigrant investor’s admission to the U.S. as a Conditional Permanent Resident. The jobs created or preserved can be either direct jobs for employees of the enterprise, or indirect jobs proved to have been created collaterally in a so-called “regional center” as a result of this capital investment.

Regional centers are designated by the USCIS as areas in need, based on policy proposals for promoting economic growth.

The required minimum investment to obtain an EB-5 visa is currently $1 million in most areas, but in “targeted employment areas” with problematic employment prospects the minimum qualifying investment is only $500,000.

If the February 14 Policy Memo proposed by the USCIS were to be adopted, then a number of legal clarifications and changes would take place, including the following:

  • There would be no guaranteed right of an EB-5 investor’s eventual ownership in a particular asset (which has been a point of speculation and debate).
  • Payments to investors of returns on their investment during or after conditional residency would be acceptable to the USCIS.
  • Requested approval in regional center areas would be best justified by showing significant contribution to the supply chain on labor pool from proposed projects.
  • Investors could count “indirect” jobs located outside of targeted regional center boundaries toward their requirement of minimum numbers of jobs to be created.
  • Material changes in the business after admission of an investor as a “conditional permanent resident” would not necessarily be fatal to I-829 applications to remove all conditions, clearing the way for permanent residency, as long as there was no pre-conceived plan to make a business shift.

If you want to offer comments on the 25-page proposed policy memo put out by the USCIS, you can send your comments to openfeedback@uscis.dhs.gov.

If you are an individual investor in need of immigration assistance, do not hesitate to contact our office at (847) 564-0712 to speak with a qualified and experienced immigration lawyer. You can also check out our immigration law Website for more information about how we might assist you.

Topics:  Conditional Permanent Residents, EB-5, Entrepreneurs, Foreign Investment, USCIS, Visas

Published In: Finance & Banking Updates, Immigration Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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