What Are Expedited EB-5 Projects?
Benefits of Expedited Project Status
How Can an EB-5 Project Obtain Expedited Status?
Problems to Consider
Is an Expedited EB-5 Project Right for My Family?
An EB-5 investment is one of the fastest ways to obtain permanent residency status in the United States. However, that doesn’t mean the process is quick. Typically, the entire process takes several years, sometimes even 10 or 15 years, if United States Citizenship and Immigration Services (USCIS) has not listed the investor’s country as “current” in the monthly Visa Bulletin. But those seeking a Green Card through an EB5 investment have a much faster option: an expedited EB-5 project.
What Are Expedited EB-5 Projects?
An EB-5 project with expedited status has been designated by USCIS as fulfilling at least one of the following criteria.
Advances the interests of the U.S. government. USCIS is most likely to approve expedite requests that advance the national interests of the United States. To fulfill this criterion, a government agency—either federal, state, or local—must consider the EB-5 project’s cause as urgent toward fulfilling public safety, national security, or similar interests. USCIS states that the case at hand must be “of a scale or a uniqueness that requires immediate action to prevent real and serious harm to U.S. interests,” with an “immediate and substantive” need.
EB-5 developments such as public infrastructure projects, transportation terminals, or facilities that will promote economic growth may be considered as advancing U.S. national interests. For instance, a research facility developing treatments for a disease or a residential real estate development in an area affected by a natural disaster may have an urgent and substantive need for more workers.
If the project’s expedited status is related to an urgent need for employment authorization, the worker(s) in question should be essential to the project’s successful operations.
Furthers U.S. social or cultural interests as a nonprofit organization. In this type of expedite request, a nonprofit needs an investor’s visa petition to be processed more quickly due to the investor’s key role in furthering cultural or social interests.
If an EB-5 regional center is set up as a nonprofit, and especially if it was created by a government entity, its projects might be able to qualify for expedited processing under this category.
Prevents severe financial loss to a company or person. If an EB-5 business or real estate development is liable to a substantial financial loss due to delays in their investor’s visa petitions, USCIS may grant expedited status. The EB-5 project may need the investor’s capital to avoid losing an important contract or having to lay off key employees.
Of course, the risk of financial loss must be caused by extenuating circumstances and not by the EB-5 project, as would be the case if the project set restrictive release conditions in its escrow agreement.
Visa applicants are involved in an emergency or urgent humanitarian issue. If a visa applicant is subject to a welfare issue such as a serious illness, extreme living conditions, disability, an urgent need for medical treatment unavailable in their country, or a death in the family, they may qualify for expedited processing.
Again, these circumstances must be outside of the investors’ control.
USCIS has made a clear error. In rare cases, USCIS may erroneously delay or deny a visa petition and grant expedited status once the applicant resubmits.
Benefits of Expedited Project Status
Expedited status allows a project to access EB-5 investment funds much quicker, thereby facilitating a faster construction timeline. With this designation, investors need to wait for only four to eight months for their I-526 petitions to be processed instead of the typical adjudication time of two years or more. Instead of waiting for adjudication from USCIS for an extended period, with the EB-5 program and the economy subject to changes during that period, EB-5 investors in expedited projects support an important cause while helping their family gain quicker access to the United States’ top education and medical systems.
Expedited status can be especially valuable for EB-5 investors whose children will soon reach the age limit of 21 and cease to qualify for EB-5 visas as dependents. Having Form I-526 processed quickly also reduces the risk of material changes—significant deviations from an EB-5 project’s business plan that may result in a USCIS denial.
Despite these benefits, there are things an investor ought to know about expedited EB-5 projects before diving in.
How Can an EB-5 Project Obtain Expedited Status?
First, a high-ranking U.S. government official—the head of an agency or even a member of cabinet—must provide the project sponsor with a letter detailing the project’s benefits to the United States and why the EB-5 capital must be released quickly to the project.
Then, the project sponsor must compile data on the project’s business plan and scope, demonstrating as specifically as possible how the EB-5 capital will further national interests. Evidence such as third-party economic analyses will likely be needed to support a project’s claims.
This documentation and a cover letter summarizing the main points should be provided to each investor’s immigration attorney. Then, the expedite application should be submitted for each of the project’s EB-5 investors after the investor’s I-526 petition has been filed.
Problems to Consider
Expedited status does not unlock more available visas for the EB-5 investment program. So, if an investor is from a country experiencing visa retrogression, not even having expedited status will change their wait times. (Investors from countries experiencing visa retrogression can avoid extended delays by investing in one of the set-aside visa categories.)
Expedited projects also tend to carry higher financial and immigration risks than normal EB-5 projects. Furthermore, USCIS still subjects EB-5 investors to the same intense level of scrutiny, or even more, when evaluating their I-526 petitions.
Still, there are ways for investors to plan ahead and carefully evaluate the risks involved in an expedited EB-5 project.
Evaluating Immigration Risk
With an expedited EB5 investment project, investors must still demonstrate that their EB-5 investment funds created at least 10 new full-time jobs for U.S. workers. Potential investors should look at how many jobs the project aims to create per EB-5 applicant and how these positions will be created. If the number is close to 10, the investors risk potentially falling short of the EB-5 program’s immigration requirement. Investors should look for projects that plan higher job creation for each EB-5 investor to reduce this risk.
In addition, EB-5 investment participants should evaluate the experience level of the central actors involved in a potential project as well as their track record of successfully completed EB-5-funded projects. If the expedited project is working with an EB-5 regional center, investors should ascertain what percentage of I-526 and I-829 petitions were approved by the regional center’s previous projects.
Other ways to evaluate and mitigate the immigration risk of an expedited EB-5 project include
- Finding out whether the project company owns the land the project is built on.
- Making sure the expedited project has procured all approvals and licenses required for construction.
- Looking into the overall funding of the project to ensure the developer has sufficient capital to complete construction.
Evaluating Financial Risk
Typically, the financial risk involved in an expedited EB-5 project is greater because expedited status is granted only if the EB-5 capital in question is deemed absolutely essential to the project’s construction and operation. Safer EB-5 projects are those that only use EB-5 capital to replace equity or debt, not to fund the essential elements of construction. A lower percentage of EB-5 funding in the overall capital structure means a safer project for EB-5 investors.
Due to this increased financial risk, investors should look for measures that provide greater protection for their investment when considering an expedited EB5 investment project. Investors can do the following to evaluate financial risk:
- Find out whether the expedited EB-5 project secures the investor’s EB-5 investment with real estate or other tangible assets.
- Take a closer look at the project’s cash flow to better assess the financial risk.
- Look for a project with a completion guaranty.
In any case, when considering an expedited EB5 investment project, investors should make sure they know how and when their capital will be paid back
Is an Expedited EB-5 Project Right for My Family?
Expedited EB-5 projects come with high risks, but they can be an attractive opportunity for investors who truly need fast adjudication, such as those who are already residing in the United States but whose visas are set to expire. Investors should work with an immigration attorney experienced in the EB-5 investment program and do as much research on the project documentation as possible to decide whether an expedited EB-5 project is the best choice for themselves and their family.
To learn more about expedited EB-5 projects and the EB-5 program, schedule a free meeting with EB5AN.
