Are foreign nationals from certain countries restricted from applying for EB-5 visas?

The EB-5 program is open to applicants from all nations. However, the ability to apply for an EB-5 investment visa can be hampered by several factors, including visa availability and some countries’ economic and immigration policies.

An EB-5 investor cannot be granted an EB5 investment visa until a visa becomes available. In other words, even if the investor has complied with all the requirements of the EB-5 program, if no visa is available, the investor will have to redeploy the EB5 investment and maintain its at-risk status until a visa becomes available.

Historically, investors from Mainland China have faced significant visa backlogs because of the popularity of the program and the limited number of visas available. The 2020 inclusion of investors from Hong Kong in the Chinese Mainland immigration stream added to the backlog. Other countries that have experienced visa backlogs and retrogression include India and Vietnam.

For some EB-5 investors, the economic and immigration policies of their country of birth could make obtaining an EB-5 visa either impossible or extremely difficult. For example, South Africa, like several other countries, limits the amount of money that can be moved overseas without increased scrutiny and incurring additional taxes. South Africans may move R 1 million per year without increased taxation or scrutiny. Given the country’s weak currency, this is a fraction of even the lower investment amount. While there are legal ways for South African EB-5 investors to decrease the tax burden and move funds, the process is lengthy and requires careful planning and documentation.

Complying with all aspects of the EB-5 program can also be challenging for applicants from countries in which formal documentation of the movement of money is not a matter of course. This complicates proving the sources of EB-5 funds, a key aspect of the I-526 petition.

However, there is hope for investors from countries with immigration and economic policies that create hurdles in the EB-5 visa process. Much to the surprise of the EB-5 community, in the 2019 financial year, four EB-5 visas were issued to applicants from North Korea. One can only imagine the challenges those investors faced in their EB-5 journey.