Answers to common EB-5 visa investor questions
Here are the questions we most frequently hear from investors:
Will the EB-5 Regional Center Program expire June 30, 2021?
Rupy: The EB-5 Regional Center Program legislation, started in 1992, had extensions earlier in its history typically for five-year periods; however, in the last several years the program has had short-term extensions.
It’s important to note that in the past the program has expired for a period only to be reauthorized again.
Currently, the program currently has an expiration date of June 30th, 2021. Bipartisan Senators Grassley and Leahy have introduced new legislation for the program, the EB-5 Reform and Integrity Act 2021; this legislation will give investor greater protection and extend the program for five years; we are confident that with the new Biden administration and Congress will see the economic value of EB-5 to help recover from the impact COVID-19 and extend the Regional Center Program until 2026.
What is the EB-5 process for getting a Green Card?
Rupy: The EB-5 process is as follows: 1) Select a qualifying EB-5 project. 2) File your investor petition (Form I-526). 3) Receive conditional permanent residency (a Green Card), for two year by filing a Form I-485 if you are already in the U.S., or by filing a Form DS-260 if you are in your home country. 4) Remove conditions on permanent residency by filing Form I-829. Read a detailed summary of the EB-5 process.
Rupy: The EB-5 investment minimum (Targeted Employment Area) is $900,000. Investors also must pay an administration fee that around $65,000 to $80,000, as well as EB-5 lawyer fees that range from $15,000 to $25,000, and there is a $3,675 USCIS filing fee.
How long can I expect to wait for my EB-5 Green Card?
Rupy: WIth COVID-19, EB-5 processing times have been undependable but prior to the pandemic, USCIS was posting average EB-5 petition (I-526) processing averages of 14.2 months.
Once COVID-19 in under control, we expect EB-5 processing to be even more efficient than in the recent past for four reasons: 1) a more immigration-friendly Biden is president 2) the new Secretary of Homeland Security Alejandro Mayorkas ran USCIS in the past and is expected to improve processing times 3) The last time the U.S. had a recession in 2008, EB-5 played a big role in economic recovery so we expect the government to support the program during the new economic recovery 4) With a higher investment amount since the 2019 Final Rule, fewer immigrants filing new petition.
Speak with an experienced EB-5 lawyer about your case, but we are optimistic that very soon new applicants should be processed much faster than in the past
What kind of chances can I expect to be successful?
Rupy: For the fiscal years 2018 through 2020, the I-526 application approval rates were 92%, 90%, 78%, and 75%. Be aware that these statistics represent averages and include investors did not conduct their due diligence and/or were victims of fraud. Thus, if rely on proper third-party due diligence, you should expect to have much better than average chances of EB-5 success.
Where do I invest? How do I find EB-5 projects?
Rupy: We're often contacted by investors who are researching EB-5 projects online and are therefore aware of a few projects in the market. And sometimes an investor's immigration attorney will provide them with a list of 'preferred regional centers', which I'm not convinced is a good idea because it tends to lend credibility to investments that have not been vetted.
Immigrant investors with strong business backgrounds often feel capable of doing their own due diligence. If they do, one benefit of working directly with a regional center is that some regional centers may offer a reduction to their administrative fee if the investor does not involve an agent.
In this situation I suggest the investor procure an EB5 due diligence report, then visit the project themselves, meet with the developer and management team.
The benefit of working with a broker dealer agent is that the investor gets a larger selection of investment options and the due diligence is performed at the agent's expense. An agent is also a fiduciary who works with the investor throughout the investment selection process, will answer questions and generally act as a go-between with the regional center.
What does an expedited project mean?
Rupy: If USCIS sees a project as serving an urgent government or public interest, it can grant a project expedited status. This can mean shorter processing times. We’ve seen recent petitions with investments in expedited projects receive approval in less than six months, or even much sooner. Note that expedited status does not mean an investment has less immigration or financial risk for the investor.
What ROI can I expect from my EB-5 project?
Rupy: The eb5Marketplace investment platform (which offers investments that have undergone our third-party due diligence) has recently offered ROI of 0.25% - 8% per annum.
EB-5 investments don’t offer the same ROI as general investments because there is added cost to projects to structure an EB-5 investment, and there is less certainty of when the capital will be able to be used by the project. Therefore, to make EB-5 money more appealing to a project, it will have to offer lower than traditional ROI to investors.
Are the majority of EB-5 investments $900,000?
Rupy: Now, after the new regulations, most of them are. Note that for an investor to make a $900,000 investment amount, the investment project must be in a high-unemployment area (150% of the U.S. average) or rural area.
Can an EB-5 investment be a loan?
Rupy: Yes, investment capital can come from the proceeds of a loan, as long as loan is not secured by the investment project.
In the past, EB-5 investors were not allowed to use unsecured loans for their investment capital, but a D.C. Circuit court ruled in 2020 that investors can, in fact, use the proceeds of unsecured loans for their EB-5 investment. Speak with your immigration lawyer for direction on the matter.
Can a gift be the source of my $900,000 investment?
Rupy: Yes, this is allowed. Note that the details of the gift — the source, timing, the original source of the gift funds) have to be included with your I-526 petition, in your source of funds documentation.
When will I get my EB-5 money back?
Rupy: Often times an investor's understanding may be that their funds are being loaned to a project for five years so they can expect a return of their capital in five years.
Investors should understand that they are making an equity investment in the new commercial enterprise (NCE), and the NCE is making the loan. So the investment returns are dependent on two outcomes, first the repayment of the loan by the JCE and second the liquidation of the NCE by the Manager.
In order to asses the timing of the loan repayment by the JCE, an investor should understand the loan terms: when the loan begins, when the balloon payment is due and if there are any possibilities of extensions.
And when the money does come back to the NCE there may be a possibility of re-investment. To understand when an investor might get their money back they need to understand the terms of the operating agreement they signed which outline the timing of liquidation of the NCE.
If I get denied, is my money returned right away or is it locked in the investment?
Rupy: Know that most investments have provisions to return the investor capital to an investor who is denied. However the terms and structure of those provisions vary by regional center investment. Some of those differences may include the conditions required to fully refund an investor’s money, if there is a separate fund for such an event, and what entity makes the repayment because of the fact that the investor capital will already be invested by the time of a petition denial.
Can my parents be derivatives on my EB-5 petition?
Rupy: Unfortunately, no, parents cannot be dervatives. Only your spouse and unmarried children under 21-years-old may qualify as derivatives
Can I apply for EB-5 when on an H-1B visa?
Rupy: Yes, this is possible and a popular route for many investors.
What advantages does an EB-5 Green Card compared with other visas?
Rupy: The EB-5 visa is permanent and allows a person to live and work anywhere in the United States. Children are allowed to attend U.S. universities at substantially lowered rates. There are no language requirements associated with and EB-5 visa. After five years with an EB-5, you can apply to be a U.S. citizen.
Can cryptocurrency be a source of funds for my investment?
Rupy: This is possible provided that you offer proof that the cryptocurrency was of a legal origin and you were the owner. The challenge to this is perception that cryptocurrency is anonymous.
The usual process for an investor with cryptocurrency is to covert the digital fund to conventional currency and then give those funds to the investment project. Another challenge here occurs when this process takes place in a country lacking legal protocols for cryptocurrency exchange.
An immigration lawyer familiar with cryptocurrency will guide you here, and will help detail the process to USCIS in terms similar to a sale of traditional assets, and offer all the transparency, including taxes paid, as possible.
Can my EB-5 investment be my own business?
Rupy: This is called a “direct investment.” Like Regional Center Program investments they must also create 10 full-time U.S. jobs; however, direct investments: unlike have additional restrictions and requirements: no indirect or induced jobs are able to be counted, and the active management is required.
Largely because of these resasons, regional centers represent more than 95% of all EB-5 investments because as their investments allows for passive investment, greater job-creation flexibility, and often have faster processing times.
Can I go to the U.S. on an E-2 visa, and later change to EB-5?
Rupy: This is possible. You can acquire an E-2 visa with a ob-creating investment of about $200,000, and then increase your investment to $900,000 afterwards, with the requirement that 10 jobs are then created. If you are interested in an E-2 visa, talk to us and we can put you in contact with brokers and experienced immigration lawyers.
After becoming a U.S. resident, how long can I leave the country for?
Rupy: Generally, you can leave the U.S. up to six months at a time, but if you stay outside the country for a year or more you will need a Re-entry Your immigration lawyer should advise.
Can my child pay go to university at lower tuition rates once they have a Green Card?
Rupy:Most definitely, and the savings can be substantial. Students with a Green Card can qualify for in-state tuition fees which — usually just a fraction the rates for international students. Students with Green Cards can be eligible for scholarships and grants; and they enjoy better acceptance rates compared with international students.
I haven't paid taxes, individual or business, because my country of residence doesn't require it or it isn't customary. Is this a problem?
Catharine: We normally tell clients if they can provide income tax returns, it’s great to do so. If they can't, it's not going to make or break their petition.
We let them know that if USCIS sends a request for evidence (RFE) for copies of their income tax returns, they will need to either produce them or get a letter from an attorney in their country of residence stating the legal reason behind why they can't provide those tax returns.
I always request tax returns but I’ll still file a petition if I don't have them.
What does ‘at risk’ mean?
A: EB-5 program requirements stipulate that an investor’s capital must be “at risk for the purpose of generating a return on the capital.” In addition to a “chance for gain” this must entail a “risk of loss.”
Investors should note that this requirement does not allow for any guaranteed returns, including a guaranteed interest rate of return. If any guarantees are made to the investor for the right to own or use real estate (such as a condominium unit), then the current value of the ownership or use of the asset will be deducted from total amount of capital deemed at risk.
The investor’s capital must got into a New Commercial Enterprise (NCE); the NCE then invests in or loans the capital to a Job Creating Enterprise (JCE). This means the capital is invested in a job-creating business that will prove that it is or will be conducting a business activity that uses that capital. If the business is not successful, the investor’s capital may be lost. Therefore an investor’s capital cannot simply remain in a bank account — it must actually be invested in such a real job-creating business.
This “at risk’” requirement must be fulfilled for the duration of the immigrant investor’s conditional residency. A failure to fulfill this “at risk” requirement will result in USCIS denying the petitions of all the NCE’s investors who would then have to start the investment process all over with a new I-526 filing and EB-5 investment.
Can I continue to travel in and out of the US, while my I-526 is pending?
Sam: Generally yes, although it depends on the type of visa the immigrant has. Typically if an investor has a B visa or if they come from a country where they're able to use ESTA, there are no problems with traveling. Sometimes we get stories of clients who are stopped at the airport and questioned, but we haven't encountered any major problems.
Traveling outside the US may become more difficult once a client's I-526 petition gets approved, so it is important to explain to them what their visa allows for, what duel intent means and what to do if they are stopped at the border.
It can be difficult for a client to apply for a non-immigrant visa after their I-526 petition, because they’ve already put on record that they had immigrant intent through the I-526, so establishing non-immigrant intent can be very tricky.
Which is preferable, use of escrow or EB-5 funding directly?
Dawn: Although regulations do not require use of escrow, up until a couple of years ago, the majority of projects used escrow. Complicated EB-5 visa requirements (see EB-5 requirements) along with the lengthy and increasing waiting periods for processing has made the practice of releasing directly into the project or having some sort of hold back into the project much more common. But I prefer for the money to sit in escrow until my client's I-526 is approved.
But in practicality, many of the developers are pushing for an immediate release, so if that's the case I find what mechanisms are in place to return the funds in case of a denial: "Does there need to be another investor as a replacement for my investor to get their money back?" "What's the difference between best efforts and reasonable efforts?"
There are some regional centers that will put themselves on the line and they'll advance the funds if there's an issue.
Escrow is helpful to protect investors against potential denials and to be used by Regional Centers and project developers that are not as well known. I prefer to see escrow in deals where there is a greater potential for fraud such as disclosed conflicts of interest between the NCE and JCE.
Rupy: As Dawn mentioned, repayment of investor's funds in the event of denial is a common investor concern and investors want to know the terms of refund for both the investment and the administrative fees.
Some regional centers have hold-back provisions such that 10-20% of investor EB-5 funding remain in escrow until all investors have been approved.
Other regional centers provide a 'guarantee' that funds will be returned to investors in case of denial. One would hope that the NCE manager has underwritten the guarantee by reviewing the net worth and liquidity of the guarantor to ensure that in the event of denial, the guarantor is actually able to pay the investors back. But in many situations we have found that guarantees are not properly vetted and may not protect investors as promised.
When do I make the EB-5 investment? Before or after I file my I-526?
Catharine: We recommend that our clients make the investment before they file their I-526 petition.
According to the regulations one can actively be in the process of investing when they file but we tend to request that our clients make the investment, receive the confirmation letter from the regional center and then we file the I-526 petition.
How long does the process of filing an I-526 typically take?
Catharine: From the initial meeting until when we file, the entire process can be as short as one to two months or it can take as long as six to eight months.
Most of the time is spent with the investor, deciding which regional center he wants to invest in and waiting for the investor to do his own due diligence, as well as translating the source of funds documents and reviewing them.
Who in my family should be making the EB-5 petition and investment?
Dawn: It’s important to discuss who is the appropriate petitioner as a pre-planning item. What is the investor's goal?
If it's for their child, and the investor never plans on living in the U.S., the child may be the appropriate petitioner, depending on their age. Or their spouse may be a better petitioner.
Petitioners need to be careful if they don’t plan on living in the US. I think the immigration service is going to start to scrutinize EB-5 more carefully because there are a lot of EB-5 immigrants that are not living in the United States.
Sam: Investors oftentimes look at the EB 5 Visa program in comparison to other immigration programs around the world and sometimes they're surprised to hear about some of the differences in the requirements to be a permanent resident of the United States, and how taxation as a U.S. person is different from other countries and other immigrant USA investor visa programs.
It's an important part of the process for an investor to meet with a tax lawyer and discuss tax planning. As an immigration attorney, you need to make sure your client is adequately informed about the different aspects of making an EB-5 investment.
What are the differences between an equity investment and a debt investment?
Rupy: Investors sometimes don't understand that their investment must be an equity investment. Investors sometimes hear that their funds are being lent to the project so the investor thinks they’re making a loan for five or six years, but in fact, they're making an equity investment into a new commercial enterprise (NCE). The NCE will then make a loan or potentially an equity investment into a project.
To make a decision about the investment structure is one of the most complicate parts of the EB-5 process, one has to understand the risks associated with debt versus equity, understand the different types of debt structures and rights and remedies associated with the investment structure.
Debt can be secured with the assets of the JCE or it can be unsecured and debt has a higher priority of repayment than an equity investment. It is very important to review the loan documents to understand the rights and remedies of the lender, which is the EB-5 investor fund.
In a preferred equity investment, investors should review the operating agreement of the developer (JCE), to understand their rights associated with their investment.
It's very important to differentiate between the investment into the NCE (always equity) and the investment into the JCE (can be either debt or equity).
How do I know whether an EB-5 project uses an in-house regional center or a third-party rental center?
Rupy: A review of the PPM should disclose the relationship of the Regional Center and the Issuer (NCE). It should outline who the principals of the Regional Center are, who the principals of the NCE are and who the principals of the JCE are. And it is important to identify any conflicts of interest disclosures in the PPM.
Sometimes even though the parties are unrelated, there can still be conflicts of interest due to the way compensation is structured. There can also be conflicts regarding common ownership and conflicts regarding incentives given to certain parties. These are serious issues investors need to evaluate.
How do I know a good EB-5 regional center from a bad regional center?
Catharine: We usually provide our clients with our Due Diligence Memo: a list of questions that investors should use to evaluate and assess whether the EB-5 regional center is a “good or bad” regional center.
Investors should learn:
- how long the regional center has been in existence
- how many I-526 petitions it has filed
- how many I-829 petitions it has filed
- how many were approved
- how many were denied
- how many were withdrawn.
We also recommend that investors look at the background history for developers, to see if the developer has any experience in the project that they're undertaking. Even though a regional center might be new, an experienced developer is a good indication of the project's strength.
What happens if the petitioner passes away during the EB-5 process. Are Green Cards transferable or is money returned?
Sam: It depends on the terms of the documents the investor is signing. And it’s important to look at the escrow terms and clauses.
It depends on where the petitioner is in the process, and on whether or not it's been approved.
About Rupy Cheema
EB5 Diligence consults with many of the industry’s highest regarded attorneys and economists and has the expertise to perform comprehensive due diligence on any EB-5 project. We also have an ever expanding investor network which includes Broker-Dealer firms, Investment Advisors and over 100 U.S. EB-5 Immigration Attorneys.