Why might an attorney advise against pursuing the EB-5 Program?

Since its inception, the EB-5 visa program has helped thousands of foreign nationals, and their immediate family members, obtain permanent U.S. resident status. It is one of the most efficient and low-risk ways to receive a green card. However, it is not for everyone. There may be other visa programs that are better suited to a foreign national’s situation, and that could be a reason for an immigration attorney to advise against the EB-5 program. However, it could also be that the attorney does not have sufficient knowledge and experience of the EB-5 program, since it has very specific requirements. Many of the requirements have also changed recently due to the EB-5 Reform and Integrity Act of 2022.

EB-5 Visa Process

The EB-5 visa program was created to incentivize foreign nationals to invest in U.S. projects in exchange for U.S. permanent resident status for themselves and their immediate family members. The first step in the EB-5 visa process is for the applicant to invest the required minimum amount in a United States Citizenship and Immigration Services (USCIS)-approved project. As of March 2022, the minimum investment amounts are $800,000 for projects located within targeted employment areas (TEAs) and $1,050,000 for projects located outside of TEAs. The investor must ensure that the project in which they are putting their funds at risk will create a minimum of 10 jobs. The employment creation requirement is a key characteristic of the EB5 investment program.

Once the funds have been put at risk, the investor can then file Form I-526—Immigrant Petition by an Alien Investor. At this point, USCIS will review all documentation and verify that the minimum investment amount was put at risk in a qualifying new commercial enterprise (NCE). This is the part of the process that often takes the longest, as USCIS can get backlogged. There are also delays caused by insufficient information, prompting the agency to send requests for evidence (RFE).

Naturally, an investor must meet the applicable EB5 program requirements for their I-526 petition to be approved. This includes proving the legal source of funds for the EB5 investment capital, which can prove to be a difficult task. An attorney may advise against pursuing the EB5 program if they foresee challenges to a successful petition, such as an inability to prove lawful source of funds.