Prospective EB-5 Investor? Apply Before June 30, 2021

Over the last three+ decades, EB-5 Immigrant Investor Program participant preference for investing through the EB-5 Regional Center Program has been a primary catalyst in the residency-by-investment program’s success. Working through a regional center offers the guidance foreign nationals need as they navigate the EB-5 investment process. Additionally, regional centers have been able to maximize the potential for job creation efforts—a central objective for implementing the program in the 1990s to begin with—while simultaneously protecting program participants’ interests.

Given the EB-5 Regional Center Program’s track record for success, it is a wonder that the U.S. government hasn’t yet made this program permanent. Alternatively, every sunset date on this program brings a new wave of concern among stakeholders in EB5 investments across the country as they await new reauthorizations from Congress. While the regional center program has traditionally been reauthorized each time so far as part of a wider spending bill, the sense of security stakeholders held onto was all but destroyed in December 2020.

Congress elected to cull this popular EB-5 investment option from the larger government spending package as a stand-alone reauthorization decision. As it stands, the regional center program is set to expire on June 30, 2021. Industry leaders fear that only EB-5 reform will properly safeguard the regional center program from a failure to reauthorize it. But there is still hope.

Senators Patrick Leahy and Chuck Grassley have proposed a myriad of reformational measures for the EB-5 program through the EB-5 Reform and Integrity Act. Some key measures included in the act are below:

  • Strengthened anti-fraud and security measures
  • Increased protection of foreign investor interests
  • Regional center program reauthorization through 2024

On the whole, these are all welcome updates for anyone interested in the future of the EB-5 program, but there could be downsides as well: Could these kinds of changes usher in stricter requirements in the application process? Will initiating an EB5 investment become more difficult for new applicants? Unfortunately, these questions won’t be answered until the legislation is actually enacted.

There is one way that prospective investors are shoring up their stakes in the program, though. Namely, they are applying while there is still time left. Careful management can ensure the submission of an EB-5 investor’s I-526 petition prior to that June 30, 2021, deadline, and there are three key steps in making that happen.

Step 1: Partner with an Experienced EB-5 Immigration Attorney

Although the EB-5 investment program is without a doubt one of the quickest ways foreign nationals can achieve U.S. permanent residency status, the process isn’t without its own set of complexities. Given the fundamental differences between the EB-5 program and conventional U.S. immigration programs, prospective investors are advised to partner with an experienced immigration attorney who specializes in EB-5 immigration. This is especially important when running up against a deadline looming so close. Throughout the attorney vetting process, be sure to ask a few key questions:

  • How long has the attorney served in the EB-5 industry?
  • How many EB-5 investment participants have they represented?
  • How is their track record for gaining I-526 and I-829 petition approvals?

Even without the pressure of a deadline, and even with a regional center investment partnership, hiring an EB-5 immigration attorney is in every foreign national’s best interest.

Step 2: Identify a Reputable Regional Center

While a regional center investment is not mandatory to participate in the EB-5 program, it is preferred by most EB5 investment participants for a number of reasons. One of the most widely recognized reasons is that EB-5 investors enjoy a greater level of freedom. By simply signing on as a limited managing partner at the new commercial enterprise (NCE), they meet their involvement requirement. The other major advantage to investing with a regional center is access to alternative job creation calculation methods. EB-5 investments through regional centers can count both indirect and induced jobs toward the job creation requirement, which ultimately makes obtaining a U.S. green card easier.

Additionally, access to EB-5 industry experts who bring years of experience to every investment only maximizes the chances of program participants’ success. For this reason, properly vetting the regional centers you are considering is imperative. EB-5 investment participants need a trustworthy partner with a reputation that precedes them, and the only way to ensure that is by asking questions—lots of them.

Step 3: Develop Your I-526 Petition Packet for Submission

Every prospective EB-5 investment participant begins their relationship with United States Citizenship and Immigration Services (USCIS) through the submission of an I-526 petition. This submission packet will contain personal information about the investor and their participating family members, as well as data on their EB-5 capital documentation and EB-5 project data. The most daunting task in the development of an I-526 submission tends to be gathering the proper evidence that one’s EB-5 funds were obtained lawfully. This can be an intense and time-consuming effort, often requiring official information requests to companies and government bodies for documents dating back several years.

That said, having an experienced EB-5 immigration attorney on your side and a partnership with a reputable EB-5 regional center in development will prove invaluable in meeting USCIS’s EB-5 program requirements. Given the complexities likely to surface during the process of meeting the source-of-funds requirement, prospective EB-5 investment participants are strongly advised to begin work immediately on their application to meet the June 30, 2021, deadline.