New EB-5 Rules
Once upon a time, the EB-5 petition was perceived to be one of the “easiest” ways for foreign entrepreneurs and investors to obtain permanent residency. Invest $500,000 or $1 million into a new U.S. enterprise…create 10 jobs for U.S. workers (indirect job creation is permitted for regional centers), and get your green card. But it is no longer that easy.
Currently, USCIS takes about 27.5 to 49 months (so possibly 4+ years) to adjudicate the initial EB-5 petition, also known as I-526. This petition must be approved before the investor can apply for a conditional green card, which is only valid for 2 years. Within 90 days before the 2-year anniversary, the investor may file an I-829 petition to apply for a 10-year green card. The processing time for this petition is another 29 to 49 months.
If the long wait time is not discouraging enough, on July 24, 2019, USCIS published a final rule that makes it even harder for investors to fulfill EB-5 requirements. The final rule made a number of significant changes to the EB-5 program. The following are the most noteworthy and may further deter investors from applying for an EB-5 green card:
- Increase in investment amounts: For targeted employment areas (“TEA”), the required investment amount has increased from $500,000 to $900,000. For other locations, the investment amount has increased from $1 million to $1.8 million. The minimum investment amounts will automatically adjust for inflation every 5 years.
- TEA designation is exclusive to DHS: Under the new rule, states will no longer have the power to designate geographic and political subdivisions as high-unemployment areas, which in turn would warrant the reduced investment amount. Rather, the Department of Homeland Security (“DHS”) will directly make such designations.
The effective date for the final rule is November 21, 2019.
Yes! For foreign nationals who wish to establish a business in the United States, and want to “avoid” the EB-5 program, they may consider the 1) L-1A petition for intracompany transferee executive or manager or 2) E-2 petition for treaty investor.
The L-1A and E-2 petitions are preferred over EB-5 because:
- A premium processing option is available. This means, by paying an additional filing fee of $1,410, USCIS will guarantee a response within 15 calendar days. The response may be an approval notice, a request for evidence (“RFE”), a notice of intent to deny, or a denial notice. Based on our experience, the first 2 scenarios – approval notice and RFE – are more likely to occur. In short, this option avoids the 49-month waiting period (see above).
- A minimum investment amount is not required.
- A minimum employee amount is not required.
- U.S. work authorization is given once L-1A or E-2 is approved, while EB-5 approval does not allow the petitioner to work or stay in the United States until a green card application is filed.
To learn more about the L-1A and E-2 petitions, please refer to our previous article – “Alternatives to the Stringent EB-5 Petition – L-1A & E-2 Visas.”
Despite the new changes to the EB-5 program, foreign investors and entrepreneurs still have alternative avenues to achieve the “American Dream.” If you have any questions, please do not hesitate to contact our office. We offer free in-person consultations. U.S. immigration law is complex, which is why you need experienced immigration attorneys to guide and advise you through the process. We are those lawyers, and our firm practices immigration law exclusively. We have offices in Orange, Fresno, Riverside, Sacramento, San Bruno, California, as well as Orem and Salt Lake City, Utah, and Boise, Idaho.
ABOUT THIS AUTHOR
JEANNY TSOI – ATTORNEY
Ms. Jeanny Tsoi is an Associate Attorney at Wilner & O’Reilly. She handles employment-based immigration matters but also has extensive experience with family-based immigration matters, 601/601A waivers, non-immigrant visas, and asylum applications. She is admitted to the State Bar of California, the United States District Court for the Central District of California and the United States Court of Appeals for the Ninth Circuit. Ms. Tsoi graduated Cum Laude from the University of Southern California (“USC”). In 2012, she earned her Juris Doctorate degree from Southwestern Law School where she was the Vice President of Phi Alpha Delta Law Fraternity and a member of the Asian Pacific American Law Students Association. Ms. Tsoi is fluent in English, Mandarin, and Cantonese.
RICHARD M. WILNER – FOUNDING PARTNER
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.