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EB-5 Insights

Where Government Policies and Business Realities Converge

By Robert Y. Maples on Posted in Continuing Resolution (CR), EB-5, Immigration

As an update to this reporting- House Introduces Two-Week Continuing Resolution to Extend Vital Programs such as EB-5, on Dec. 6, the House passed H.J. Res 143 – FY 2019 Continuing Resolution Through December 21, 2018, by unanimous consent.  The measure proceeded to the Senate and was approved by unanimous consent approximately one-hour after passing the House.

Today, around 10 a.m., the House Appropriations Committee announced on Twitter that the President had signed the CR into law –

Congress will continue negotiating the year-ending, session-ending fiscal measures and we will continue tracking.  Check back for further updates.

By Bruce C. Rosetto and on Posted in EB-5, EB-5 Immigrant Investor Program, EB-5 Investment, EB-5 Legislation, EB-5 Program, GT Alert, I-526, Immigrant Investor, Immigrant Visa, Immigration, Immigration Law, USCIS, Visa

In the matter of Huashan Zhang, et al. v. United States Citizenship and Immigration Service, et al. (United States District Court for the District of Columbia, Nov. 30, 2018), plaintiffs challenged the decisions of the United States Citizenship and Immigration Service (USCIS) to deny their EB-5 immigrant investor visa petitions based upon USCIS’ erroneous interpretation of its own regulation. Plaintiffs also challenged USCIS’ denials of their petitions as violative of the Administrative Procedure Act (APA) and Immigration and Nationality Act (INA). Furthermore, plaintiffs moved for certification of a class.

Although it is too early to know if USCIS will appeal the decision or if other district courts will follow the ruling of the District of Columbia, as it stands, this is a significant decision favorable to EB-5 investors. The court found that USCIS’ interpretation of the term “capital” is “plainly erroneous, and its denials based on that interpretation are arbitrary and capricious.” (See Opinion at page 43). The court further found that USCIS violated the APA’s notice and comment requirement, as its interpretation was a legislative rule rather than an interpretative rule or statement of policy. In addition, plaintiffs’ motion for certification of a class was granted with certain modifications to the class definition; the modifications affect those petitioners whose petitions were denied solely based upon USCIS’ flawed interpretation as described in the USCIS Immigrant Investor Program Office’s released remarks on April 22, 2015.

To read the full GT Alert, click here.

By Robert Y. Maples on Posted in Conrad 30 Waiver Program, Continuing Resolution (CR), E-Verify, EB-5, Immigration

House Appropriations Committee Chairman Rodney Frelinghuysen (R-NJ) introduced H.J. Res 143 – FY 2019 Continuing Resolution Through December 21, 2018 on Dec. 3 to extend government programs not yet authorized for the fiscal year until Dec. 21, 2018. Programs extended under the filed Continuing Resolution include seven appropriation bills that are set to expire on Dec. 7 under the existing continuing resolution, and critical immigration programs such as EB-5, Conrad 30, Religious Workers, and E-Verify.

The events surrounding the death of former President George H. W. Bush (41) impacted the current Congressional schedule and necessitated an extension of time by continuing resolution for Congress to negotiate and conclude government-wide appropriations. It is expected that by some time on Thursday, Dec. 6, the House will take up H.J. Res 143 and pass the measure by unanimous consent. The measure would then go to the Senate, where it is expected to pass, and to the president for signature (he has signaled he will sign).

If all goes as planned, Congress will have two additional weeks to conclude appropriations and any other legislation before Sine Die adjournment of the 115th Congress later this month.

By Greenberg Traurig on Posted in Awards & Recognitions, EB-5, Firm News, The Expert Institute’s Best Legal Blog Competition

We are extremely excited to announce that we have been nominated to participate in The Expert Institute’s Best Legal Blog Competition. From a field of hundreds of potential nominees, EB-5 Insights has received enough nominations to join one of the largest competitions for legal blog writing online today. Now that the blogs have been nominated and placed into their respective categories, it is up to their readers to select the very best. The competition runs until the close of voting on December 17th, at which point the votes will be tallied and the winners announced. Thank you for your readership and trust! Please click the link below to vote today – and please share!

To vote, click here.

By Greenberg Traurig on Posted in China, Department of State, EB-5, EB-5 Business Plan, EB-5 Immigrant Investor Program, EB-5 Investment, I-526, Immigrant Investor, Immigrant Visa, Immigration, Immigration Law, USCIS, Vietnamese

At a recent EB-5 industry forum, Mr. Charles Oppenheim, Chief of the Department of State (DOS) Immigrant Visa Control & Reporting Division, provided key insights on what the latest data suggests regarding the future availability of visas in the EB-5 category.

Top EB-5 Visa Users in FY2018: China, Vietnam, and India

In terms of EB-5 number use by country, although Mainland China remains the largest user of EB-5 visa numbers, the latest data indicates that the cumulative number usage by the rest of the world has surpassed total numbers used by China for the first time in recent history, with China receiving about 48 percent of the total EB-5 annual visa allocation in Fiscal Year (FY) 2018.

The next largest users are Vietnam, which reached its annual per-country cap of 7.1 percent for the first time in FY2018, and India, which showed significant growth, increasing number usage from 1.7 percent in FY2017 to 6.1 percent in FY2018.

Future Projections for Visa Bulletin Final Action Dates in the Near-Term

Based on these demand trends, Mr. Oppenheim predicts that by July 2019, but possibly earlier, India may retrogress. Mr. Oppenheim anticipates very slow movement for Mainland China, while Vietnam is likely to advance to September 2016 this fiscal year, but will likely retrogress in May or June of 2019 and begin to track with China.

Long-Term Projections for Total EB-5 Visa Wait Time

Importantly, the DOS has provided key estimates for the potential immigrant visa wait time by country. These estimates represent the number of years an investor can expect to wait from the time of filing the I-526 to the time an EB-5 visa becomes available. Once an EB-5 visa is available, the investor is eligible to proceed with the final step in the permanent residence process through Consular Processing, or, if the investor is in the United States, Adjustment of Status (AOS).

Potential Wait Time if I-526 Filed 10/30/2018
Chargeability Area Estimated Visa Wait Time
China-mainland born 14 years
Vietnam 7.2 years
India 5.7 years
South Korea 2.2 years*
Taiwan 1.7 years*
Brazil 1.5 years*

*As the current USCIS processing time for an I-526 is roughly two (2) years, there is no effective wait time between I-526 approval and visa availability.

Among other considerations, these projections may impact a child’s protection under the Child Status Protection Act (CSPA), and thus their ongoing eligibility to obtain U.S. permanent residence as a derivative of the principal investor. The law limits eligibility to unmarried children under the age of 21 (and those 21 and older who qualify for CSPA protection), so a lengthy wait time in excess of the I-526 processing time may cause a child to “age out” before an EB-5 visa becomes available. Therefore, visa wait time estimates are particularly important for investors with teenage and young adult children.

Contact your Greenberg Traurig attorney for more information and for planning your path to permanent residency in the United States.

By Shaoul Aslan‡ on Posted in Department of State, EB-3, EB-5, Immigration, Visa Bulletin

The Department of State (DOS) December 2018 Visa Bulletin shows some movement in employment-based categories. The EB-1 category will advance three months in all countries, with China and India advancing to Sept. 1, 2016, and all other countries will move forward to July 21, 2016. The EB-2 category remained current for all countries except China, advancing to July 1, 2015, and India, advancing to April 1, 2009. Although most countries will remain current in the EB-3 category, China will advance by one week to June 8, 2015, India will advance by two months to March 1, 2009, and the Philippines will advance by one week to June 15, 2017. As mentioned in our previous blog post, the EB-3 India final action date moved very rapidly over the past year, advancing almost a year and a half. Current demand projections make it likely that EB-3 India could surpass EB-2 India at some point this fiscal year. As noted above, India will advance two months in the EB-3 category in December. GT will be closely monitoring these advancements as they unfold.

Referring to the Final Action Dates, following are updates from the September Visa Bulletin:

EB-1: Mainland China and India will advance, with a cutoff date of Sept. 1, 2016, while El Salvador/Guatemala/Honduras, Mexico, Philippines, and Vietnam all moved forward to July 1, 2017.

EB-2: For the cutoff date for worldwide chargeability, El Salvador, Mexico, Philippines, and Vietnam are all now current. Mainland China will move to July 1, 2015; India had slight movement to April 1, 2009.

EB-3: In the EB-3 category, for the worldwide chargeability, El Salvador/Guatemala/Honduras cutoff is Feb. 22, 2016, Mexico will move to Jan. 1, 2017, and all other countries will remain current.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in Mainland China and Vietnam, where the cutoff for China will advance slightly to Aug. 22, 2014, and for Vietnam it will advance significantly to May 1, 2016.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the department’s Dates for Filing chart must be used for filing Form I-485. This is generally not the case, as USCIS usually requires that applicants use the “Application for Final Action Dates,” which typically reflects earlier cutoff dates than that “Dates for Filing” chart.

Referring to the Final Action Dates, following are updates for the December Visa Bulletin:

Final Action Dates for Employment-Based Preference Cases

Dates for Filing of Employment-Based Visa Applications

By Greenberg Traurig on Posted in EB-5, EB-5 Business Plan, EB-5 Immigrant Investor Program, EB-5 Investment, EB-5 Legislation, EB-5 Program, Uncategorized

On Oct. 30, 2018, USCIS issued an update to the USCIS Policy Manual clarifying the types of agreements that constitute an impermissible debt arrangement. USCIS revised Part G, Volume 6, Chapter 2, Section A.2. to reflect various scenarios where an operating agreement of a new commercial enterprise will or will not constitute an impermissible redemption agreement.

As defined by USCIS, an impermissible debt arrangement is an arrangement whereby an EB-5 investor has a contractual right to repayment of the invested capital. The Code of Federal Regulations specifies that a contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the EB-5 investor and the new commercial enterprise does not constitute a contribution of capital for the purposes of the EB-5 Program.[1] This principle is also supported by the precedential decision Matter of Izummi, which found that an arrangement where an EB-5 investor provides funds in exchange for an unconditional, contractual promise that such funds will be repaid at a fixed maturity date constitutes an impermissible debt arrangement.[2]

In Matter of Izummi, the petitioner had a sell option that enabled him to require his investment be repaid at a certain price. Between Matter of Izummi and this update to the USCIS Policy Manual, USCIS has taken an expansive view of whether the terms of an EB-5 investment constitutes an impermissible debt arrangement.[3] USCIS previously believed that sell options and purchase options constituted impermissible debt arrangements, oftentimes with the following language contained with a Notice of Intent to Deny: “’For the alien’s money truly to be at risk, the alien cannot enter into a partnership knowing that he already has a willing buyer in a certain number of years, nor can he be assured that he will receive a certain price.’ Matter of Izummi, 22 I. & N. Dec. at 186.”

This interpretation has been subject to multiple federal court litigations. Most recently, in Chang v. USCIS, the U.S. District Court for the District of Columbia found USCIS’ expansive view of the holding of Matter of Izummi and 8 C.F.R. 204.6(e) to be arbitrary and capricious.[4] In Chang, the general partner of the new commercial enterprise possessed a call option to cause an EB-5 investor’s withdrawal of the new commercial enterprise by paying the EB-5 investor an amount equal or greater than the investment either before the investment was used to provide a loan or after the EB-5 investor became a lawful permanent resident. USCIS denied the I-526 Petition in Chang v. USCIS, claiming the call option constituted an impermissible debt arrangement. The court found that USCIS had acted in a manner that conflicted with the plain language of its regulations, was not compelled by statutory or regulatory purpose, unreasonably stretched the rationale of Matter of Izummi, and ran counter to the evidence in the record. Chang v. USCIS was the second federal court to make this holding.[5]

USCIS has finally updated its Policy Manual to conform to these federal court decisions. The USCIS Policy Manual now states that USCIS generally does not consider options exercisable by the new commercial enterprise to be impermissible debt arrangements.[6] Accordingly, operating agreements or limited partnership agreements of a new commercial enterprise may contain call options exercisable by the manager or general partner to pay an investor a set amount at a fixed date.

[1] 8 C.F.R. 204.6(e).

[2] Matter of Izummi, 22 I&N Dec. 183 (Assoc. Comm’r 1998)

[3] Matter of Izummi, 22 I&N Dec. 183-185 (Assoc. Comm’r 1998)

[4] Chang v. USCIS, 289 F.Supp.3d 177 (D.D.C. Feb. 7, 2018).

[5] Doe v. USCIS, 239 F.Supp.3d 297, (D.D.C. Mar. 10, 2017).

[6] USCIS Policy Manual, Part G, Vol. 6, Chpt. 2, Sec. A.2.

By Patty Elmas* on Posted in China, EB-3, EB-5, EB-5 Program, USCIS, Visa, Visa Bulletin

The Department of State (DOS) November 2018 Visa Bulletin shows movement in employment-based categories. The EB-1 category remained retrogressed for November 2018. Although it is likely that there will be some forward movement in December 2018 for EB-1 India, it will probably NOT return to “current” this calendar year. The EB-2 India category will likely move forward in December, but it will probably be only a week or so. The EB-3 category for India on the other hand may start seeing more significant advancement in December (weeks or possibly months). To provide context, the EB-3 India final action date moved very rapidly over the past year, advancing almost a year and a half. Current demand projections make it likely that EB-3 India could surpass EB-2 India at some point this fiscal year.  GT will be closely monitoring these advancements as they unfold.

Referring to the Final Action Dates, following are updates from the September Visa Bulletin:

EB-1: Mainland China and India had significant movement since September 2018, with a cutoff date of June 1, 2016, while El Salvador/Guatemala/Honduras, Mexico, Philippines, and Vietnam all moved forward to April 1, 2017.

EB-2: The cutoff date for worldwide chargeability, El Salvador, Mexico, Philippines, Vietnam are all now current. Mainland China moved to May 15, 2015; India to March 26, 2009.

EB-3: In the EB-3 category, the worldwide chargeability, El Salvador/Guatemala/Honduras, Mexico and Vietnam are all current. The Mainland China cutoff is June 1, 2015; India is January 1, 2009; and Philippines is June 8, 2017.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in Mainland China and Vietnam, where the cutoff for China advanced to Aug. 15, 2014 and for Vietnam to Feb. 1, 2016.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the department’s Dates for Filing chart must be used for filing Form I-485. This is generally not the case, as USCIS usually requires that applicants use the “Application for Final Action Dates,” which typically reflects earlier cutoff dates than that “Dates for Filing” chart.

Referring to the Final Action Dates, following are updates for the June Visa Bulletin:

Final Action Dates for Employment-Based Preference Cases

Dates for Filing of Employment-Based Visa Applications