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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in EB-5, EB-5 Investment, EB-5 Program, Visa

On Oct. 14, 2016, the U.S. Chamber of Commerce, the EB-5 Investment Coalition, and the Real Estate Roundtable hosted a briefing on the EB-5 Investment Program on Capitol Hill, with the objective of discussing and informing House and Senate staff members on the inner workings of the program and the potential impact the Dec. 9, 2016 expiration date has on the community.  Duane Desiderio, Senior Vice President and Counsel at the Real Estate Roundtable, moderated the panel, and began the discussion by describing the basic requirements to qualify for an EB-5 visa and the types of projects that utilize EB-5 investment, ranging from developments in rural areas, infrastructure projects, to charter schools.

Theresa Brown, from the Bipartisan Policy Center (BPC), spoke at the briefing and focused on the many joint public-private partnerships that utilize EB-5 capital to fund needed developments in cities and municipalities.  The BPC published a report, “EB-5 Program:  Successes, Challenges, and Opportunities for States and Localities” that showed the impact of the EB-5 program in state and local projects- a conservative calculation of EB-5’s national economic effects accounted for $11 billion in investment and 77,000 jobs created.  In addition, according to the BPC, the projects are much needed in these areas, including public infrastructure, and affordable housing projects.

Gregory Wing, Founder of Education Fund of America, also spoke at the briefing.  Mr. Wing has utilized EB-5 capital to help finance 26 charter schools over 7 different states.  He discussed the impact of EB-5 capital on those schools and how, without the funding, the schools would not be in existence. He also spoke on how this affects children who need schools that have sufficient funding to operate.

Angelique Brunner, Founder and President of EB-5 Capital,  described the projects in Washington D.C. in which she has been involved that have now transformed the D.C. economic landscape.  She discussed utilizing EB-5 capital starting in 2007, when banks were not lending money due to the recession. She explained that through the use of EB-5 capital, the company was able to fund projects that have earned awards from the Urban Land Institute.

Dan Healy, Chief Executive Officer of Civitas Capital based in Dallas, Texas, discussed how the EB-5 investment program costs U.S. taxpayers nothing.  In fact, the same investors who initially invest in the EB-5 program will often reinvest with other projects in the United States that are not related to immigration programs, after they have received their green cards.  EB-5 investors who eventually move to the U.S. as lawful permanent residents will pay U.S. federal income tax on their worldwide income, and their worldwide assets are likely also subject to U.S. federal gift and estate tax rules.

The briefing ended with lively discussion and questions from House and Senate staff members, including the myth that the EB-5 program is “buying” U.S. citizenship, which has been debunked, and questions regarding potential program lapse and retroactivity issues within the new bills.  For more information on the EB-5 program, please visit the EB-5 Investment Coalition’s website.

Posted in EB-5, Government Accountability Office (GAO), I-526

The Government Accountability Office (GAO) recently reviewed a sampling of unadjudicated I-526 petitions from the fourth quarter of fiscal year 2015 to obtain information on: 1) the ratio between investors who invested in Targeted Employment Areas (TEA) or non-TEA designated projects; 2) the geographic locations in which the projects were located; and 3) the capital stack of the project and how much EB-5 capital was expected in the project. The report sampled at random only 200 of the 6,652 Form I-526 petitions that were submitted, but not adjudicated, in the fourth quarter of fiscal year 2015.

The GAO used the following order in reviewing the 200 petitions to make their determinations for the report:

  1. To gather data on whether the investment was made in a TEA or non-TEA, the GAO reviewed each I-526 petition to identify whether the minimum investment amount was $500,000 or $1,000,000.  If the investment was $500,000, the I-526 petition was examined further to determine whether the basis of the lower investment amount was because the project was located in a rural area or a TEA.
  2. To gather data on the geographic areas, the GAO first looked to see if the $500,000 investment was made in a TEA.  If so, the GAO reviewed the TEA letter and/or project documents to determine whether the TEA was based on a single census area or a combination of census areas.
  3. To estimate EB-5 capital as part of the total capital stack per project, the GAO reviewed the business plans submitted with the I-526 petitions.

The GAO’s Findings

As a result of its reviews of a random sample of 200 I-526 petitions, the GAO found the following, summarized below:

Most EB-5 Petitioners Elected to Invest in a TEA

The GAO found from their review that 96.5% of petitioners from the fourth quarter of fiscal year 2015 elected to invest in a high unemployment TEA, and thus made the minimum investment of $500,000.  An additional 2.5% of petitioners elected to invest in a rural TEA with the minimum investment amount of $500,000.

Most EB-5 Petitioners Invested in a High Unemployment TEA on a Combination of Census Areas

The GAO found that of the petitioners that elected to invest in TEAs based on high unemployment, 90% of the TEAs were based on the average unemployment rate for a combination of census areas as allowed under the program.  The remaining 10% of petitioners based the TEA on the unemployment rate of a single census tract, census block group, or county.  The GAO also found that of the petitioners that invested in projects in high-unemployment TEAs, 65% of the TEAs combined 2 to 10 census areas, 26% combined 11 to 100 census areas, and the remaining 12% combined more than 100 census areas, as the program allows.

The GAO also reviewed the unemployment rate of the census tract in which the project was located.  The GAO found that 41% of petitioners invested in projects that were located in a census tract where the unemployment rate was 4 to 6 percent.  Please refer to the table located on page 9 of the report for other figures.

Proportion of EB-5 Investment in Projects Compared to non-EB-5 Investment in the Project

The GAO found from the sampling of I-526 petitions that EB-5 capital in the capital stack of a project was less than non-EB-5 capital in a given project.  The estimated median percentage of total EB-5 investment in projects is 29% of the total estimated project cost, and that the estimated mean percentage is 40%.  Non-EB-5 sources of capital included developer equity, bank loans, land contributions, tax credits, cash from operations, and government loans and grants.

In addition, the GAO found that of the petitioners who elected to invest in a TEA, 74% of the projects were real estate projects, including mixed use, hotels and resorts, commercial, and residential development.  The remaining 28% of investors elected to invest in infrastructure projects, including railways, highways, restaurants, medical, and education facilities.  Please note that the figures do not total 100% due to rounding.

Characteristics of Sample Projects

The GAO released some information on the 200 I-526 petitions that were reviewed.  The 200 I-526 petitions encompassed 114 unique projects that spanned 20 states, the District of Columbia, and the Northern Mariana Islands.  New York, California, and Florida had the most investments of the sampling.

Please check back for additional posts following up on this overview, including examining the way in which legislation currently pending in Congress, if enacted, would affect the numbers and findings of the GAO.

Posted in EB-5 Program, USCIS, Visa, Visa Bulletin

资美国协会(IIUSA)EB-5大会于20161010日至11日在加州洛杉矶举行。参与会议的发言嘉宾包括国务院签证办公室主任 Charlie Oppenheim先生。Charlie Oppenheim先生在会议上讨论了中国大陆出生的EB-5资者的优先日的变动。 具体来说,Oppenheim先生表示,201612签证排期表中终裁定日排期 (A)截止日会推进到2014322日。另外上周发布的 201611签证排期表中表A的截止日也略微前进到了201438日。正如我们以前报告的,国家签证中心预计将与大陆出生的EB-5移民签证申请人联系,以便根据每月签证排期表中的请递件排期表(表B)的截止日,目前仍是2014615日,来启动启动移民签证的案件处理。

 值得注意的 是,移民局宣布,在201611月,EB-5类别调整身份的申请人必须使用最终裁定日排期表(表A)的截止日期来确定是否能递交调整身份申请。除了EB-5外其他职业移民类别的调整身份申请人则可以根据表B的截止日期来递交调整身份申请。

此外,在最近一次与美国移民律师协会(AILA)国务院联络委员会的会议上,国务院对受案件积压的EB-5资者就另一个重要问题进行了澄清。具体来说,国务院重申,在最终确定投资人的子女是否可以根据儿童身份保护法CSPA)受到超龄保护而随同父母一起移民时,递交调整身份的日期将根据排期表的最终裁定日(表A)来计算。因此,提交移民签证申请表格(DS-260)或支付移民签证费帐单本身不会,也不能保证投资人子女的年龄不会龄,也不能保证投资人子女可以随同投资人取得永久居民身份。相反,投资人子女的年龄的计算方式是在根据表A 有配额的情况下(I526优先日在表A的截止日期之前)冻结子女年龄,再减去I-526请到批准的案件审批时间。根据国务院的澄清,提交DS-260表格或支付签证费用将被认为可以证明投资人子女寻求们的移民签证。值得注意的是,上述国务院的指示适用于根据排期表表B中当前优先日期提交的DS-260请和签证费用的支付。上述指示并未涉及I-526请批准后不久但优先日不在表B的截止日期之内情况下递交的DS-260请和签证费用的支付。很有可能,在上述两种情况下,只要在根据排期表表A签证配额内的(1)一年之内提交DS-260请或签证费用的支付,就将会认定投资人的子女或配偶满足寻求移民签证的要求。我们将在移民局以及国务院发布新的指示后,对此重要法律问题提供进一步澄清


Posted in EB-5 Program, USCIS, Visa, Visa Bulletin

The Invest in the USA (IIUSA) EB-5 Conference, which took place on Oct. 10-11, 2016 in Los Angeles, California, featured Charlie Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State as one of its speakers. Mr. Oppenheim discussed the movement of priority dates for the mainland China born EB-5 investors.  Specifically, Mr. Oppenheim shared that the December 2016 Visa Bulletin will see the Final Adjudication (Chart A) cut-off date move forward slightly to March 22, 2014.  The November 2016 Visa Bulletin, which was published last week, likewise saw a slight advance of the Chart A cut-off date to March 8, 2014.  As we previously reported, NVC is expected to reach out to mainland China born EB-5 immigrant visa applicants in order to initiate the immigrant visa process based on the Dates for Filing Chart (Chart B) of the monthly Visa Bulletin, where the cut-off date has remained June 15, 2014.

Importantly, USCIS announced that applicants for adjustment of status in the EB-5 category must use the Final Adjudication priority date chart (Chart A) to determine eligibility for adjustment of status in the month of November, whereas the remainder of the employment-based adjustment of status applicants may use the priority dates as indicated in Chart B.

Additionally, at a recent meeting with the American Immigration Lawyers Association (AILA) State Department Liaison Committee, the State Department provided clarification regarding another important issue for the backlogged EB-5 investors.  Specifically, the State Department  reiterated that the final determination of eligibility of dependents under Child Status Protection Act (CSPA) is made at the time visas are available for adjudication, i.e., based on Chart A.  Therefore, the filing of an immigrant visa application (Form DS-260) or payment of the immigrant visa fee bill in and of themselves do not and will not guarantee that a dependent will not be found to have ‘aged out,’ or become ineligible to obtain permanent residence as the child of the investor.  Instead, this dependent’s age will be calculated by deducting the number of days the I-526 petition was pending with USCIS from the biological age of the dependent at the time of visa availability under Chart A of the Visa Bulletin.  Per State Department clarification, in reviewing this, the submission of the Form DS-260 or payment of the visa fee bill would be considered to satisfy showing that the dependent “sought to acquire” his or her immigrant visa.  This guidance specifically referenced the filing of DS-260 applications and payment of the visa fee bill based on the current priority date in Chart B and did not address the filing and payment made during the period of time when NVC continued to process immigrant visa applications for backlogged cases shortly after I-526 petition approval.  Presumably, proceeding under either scenario should satisfy the “sought to acquire” requirement if the steps were taken within one (1) year of the visa becoming available as determined by Chart A.  We will provide further clarification on this important legal issue as updates become available.

Posted in EB-5, Events

Greenberg Traurig attorneys Kate Kalmykov and Jennifer Hermansky will be speaking at the 2016 AILA EB-5 Conference to be held Oct. 24-25, 2016, at the Renaissance Washington, D.C. Downtown Hotel in Washington, D.C.  Kate will speak on a panel entitled Securities Enforcement by SEC, State, and Private Parties along with the SEC Deputy Director of Enforcement, Stephanie Avakian.  Jennifer will be speaking on a panel entitled Advanced Issues In Representing Individual Investors. Kate and Jennifer will be available for client meetings at the event and can be contacted at kalmykovk@gtlaw.com and hermanskyj@gtlaw.com.

Posted in Department of State, EB-5, EB-5 Investment, Immigrant Visa, Visa

许多中国大陆出生的EB-5投资者最近注意到,他们不再能够访问国家签证中心(NVC)的在线平台。 此在线平台的功能包括移民签证费账单的支付,移民签证(DS-260)的申请,以及其他功能。 国家签证中心已确认将使用每月签证公告的申请递件排期表(“表B”)来启动案件处理。10月份的签证排期公告显示,对于中国大陆出生的EB-5投资者,表B当前优先日的截止日期是2014年6月14日或更早。因此,国家签证中心表示不会处理优先日晚于10月签证排期公告中表B截止日期的案件。


此外,国务院证实,正在努力使其在线平台现代化,并指出目标是在2017年春天,建立一个全新的门户网站. 此网站包括所有目前可用的独立的在线功能,如签证费用账单支付,DS-260提交,案件状态查询,以及许多其他功能。

Posted in Department of State, EB-5, EB-5 Investment, Immigrant Visa, Visa

Many of the mainland China born EB-5 investors recently noticed that they no longer had access to the National Visa Center (NVC) online platform for the purposes of immigrant visa fee bill payment, access to immigrant visa (DS-260) applications, as well as other functions.  NVC has confirmed that it is using the Dates for Filing Chart (Chart B) of the monthly Visa Bulletin to initiate case processing.  Because October’s Visa Bulletin shows that for mainland China born EB-5 investors Chart B current priority dates are June 14, 2014 and earlier, NVC indicated that it would not be processing those cases with priority dates later than that indicated in Chart B of the October 2016 Visa Bulletin.

This change in the processing of the immigrant visa applications for mainland China born EB-5 investors by NVC has resulted in the inability of many to proceed with the preparation of DS-260 applications that had been initiated prior to this processing change, as well as the inability to pay the immigrant visa fee bills, complete the DS-260 applications, or to receive from NVC confirmations that all of the documents in connection with the DS-260 application have been received.  Per NVC instructions, in the month of October, only those mainland China-born applicants whose priority date is June 14, 2014 or earlier are able to proceed with immigrant visa processing upon being contacted by NVC, and each month NVC will reach out to those applicants who fall within the cut-off dates within Chart B of the Visa Bulletin.  Importantly, for those cases that were previously filed to NVC but are no longer available for processing based on Chart B cut-off dates, NVC indicated that it would issue notices confirming receipt of the application and materials.

In addition, the State Department confirmed that it is working toward modernizing its online platforms and has pointed to the Spring of 2017 as a target to go live on a completely new portal which will incorporate all of the separate online elements currently available, such as visa fee bill payment, DS-260 submission, case status look up, and many other elements.

Posted in Awards & Recognitions

New York Super Lawyers magazine recognized attorneys Jordi S. Bayer, Rosanna M. Fox, Kate Kalmykov and Lauren A. Tetenbaum as a “Rising Stars” in Immigration law for 2016. According to the Super Lawyers website, the Rising Star selection process is based on peer recognition and professional achievement, as well as a third party research. Kalmykov has been ranked as a Super Lawyer since 2012.  This is the first time Bayer, Fox and Tetenbaum are listed on the Rising Stars list.

To read the full press release, click here.

Posted in EB-5 Program, Eb-5 Regional Center, Regional Center, State Department, USCIS, Visa, Visa Bulletin

On September 22, 2016, USCIS determined that for October 2016, Adjustment of Status applicants in family-based and employment-based categories will be able to utilize the Dates of Filing Visa Applications chart (otherwise known as Chart B) of the monthly State Department Visa Bulletin, with the exception of several employment-based categories.  USCIS instructed that those applying for adjustment of status in the EB-4 category, including non-minister special immigrants, and those applying under the EB-5 Regional Center Program category would have to use the Final Action Dates chart of the Visa Bulletin (also known as Chart A).  USCIS explained that  because the EB-5 Regional Center and the EB-4 non-minister special immigrants programs were set to expire on Sept. 30, visas were unavailable for these categories until Congress extends these programs.  The announcement further stated that upon the programs’ extension, USCIS would make appropriate updates to the Visa Bulletin as well as to the webpages that provide information regarding adjustment of status eligibility.

On Sept. 28, 2016, Congress approved a short-term federal spending legislation that included an extension for the EB-4 and the EB-5 Regional Center programs through Dec. 9, 2016, with no changes to program policy.  While USCIS has since updated the program pages to reflect that visas are indeed available in these categories, the Agency has still not allowed the use of Chart B in application for adjustment of status for those applying in the EB-5 category.  Further, it has instructed that all applicants in the EB-5 category (including Regional Center and non-Regional Center programs) must use Chart A.  For those approved EB-5 investors born in mainland China, only those with priority dates on or before Feb. 21, 2014, may apply for adjustment of status during the month of October.