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On October 11, 2023, United States Citizenship and Immigration Services (USCIS) updated its policy on the minimum investment period for EB-5 visa applicants. This update seeks to clarify how USCIS interprets changes made by the EB-5 Reform and Integrity Act of 2022 (RIA).

The RIA stated that an investment is expected to remain invested for not less than two years, but does not specify when the two years start. The new guidance published on the USCIS website states that this two-year period begins when investor funds are deployed to the job-creating entity (“JCE”). As long as 10 jobs have been created by an EB-5 investor’s investment, he or she can be repaid after two years and remain eligible for a U.S. Green Card. This is a significant change to the “at-risk” requirement for EB-5 investors.

Click here to read the full EB5AN article, co-authored by GT Shareholder Kate Kalmykov.

Please join Kate Kalmykov, Co-Chair of the Global Immigration & Compliance Practice, at an upcoming webinar Oct. 16 from 12 to 1 p.m. EDT.

On Oct. 11, 2023, USCIS provided additional guidance on their interpretation of the EB-5 laws created under the EB-5 Reform and Integrity Act of 2022 (RIA). In their clarification, EB-5 investors are now eligible for repayment of their invested capital after two years of investment. In addition, investors now have more protection from regional center terminations.

Kate will be joined by immigration attorney Ron Klasko and EB5AN managing partners Sam Silverman and Mike Schoenfeld, who will explain the recent guidance released by USCIS and discuss how they expect both EB-5 investors and regional centers to be impacted.

The panelists will discuss:

  • In-depth analysis of USCIS’s Oct. 11 guidance.
  • Relevant changes to the required investment timeframe – key takeaways for investors and regional centers.
  • Provisions for investors associated with terminated regional centers.
  • Predictions for future developments.
  • First impressions from EB5AN.

Click here to register.

GT Immigration & Compliance Practice Shareholder Jennifer Hermansky is quoted in an article titled “Why EB-5 Regional Centers need to file the updated Form I-956G,” published on the EB5 Investors EB-5 Visa Blog Sept. 25, 2023.

Click here to read the full article, “Why EB-5 Regional Centers need to file the updated Form I-956G.”

The U.S. Department of State (DOS) recently published the October 2023 visa bulletin for the start of the government’s new fiscal year (FY 2024). The October 2023 visa bulletin presents advancements in both the Final Action Dates and Dates for Filing charts for China in the EB-5 Immigrant Investor Program preference’s unreserved subcategory. Specifically, the Final Action Date for EB-5 China (unreserved) progressed from Sept. 8, 2015, to Oct. 1, 2015. Though this nearly one month advancement is relatively modest, it represents the first movement for the EB-5 category for Chinese investors since May 2023.

The October 2023 visa bulletin showcases significant advancement in the Dates for Filing chart for Chinese investors in the EB-5 category. The dates for filing for Chinese investors moved from Jan. 1, 2016, to Jan. 1, 2017. This movement is noteworthy because of USCIS’ decision to shift from using the Dates for Final Action chart in September 2023 to using the Dates for Filing chart in October 2023 to determine filing eligibility for all employment-based preference categories, including EB-5. When considering the advancements in the visa bulletin and USCIS’ shift from honoring the Final Action Dates to Dates for Filing chart, Chinese investors’ ability to file for an adjustment of status moved up by roughly 15 months, from Sept. 8, 2015, to Jan. 1, 2017.

In addition to an advancement in Chinese investors’ ability to file for an adjustment of status (i.e., their green card application), the movement in the visa bulletin allows Chinese investors with a priority date of Jan. 1, 2017, or earlier to apply for supplemental benefits along with their adjustment of status. Specifically, they can apply for a travel document (advance parole), which allows them to travel internationally and re-enter the United States as a parolee and with an Employment Authorization Document (EAD Card), which affords them valid work authorization while waiting for USCIS to process their green card application.

On July 13, 2023, Greenberg Traurig Shareholders Kate Kalmykov and Bruce Rosetto, along with EB-5 Affiliate Network (EB5AN), presented a webinar titled “Evaluating EB-5 Projects from an Immigration and Securities Law Perspectives.” Attendees gained greater understanding and insights on mitigating the immigration and financial risks of engaging in the EB-5 Immigrant Investor Program.

To access a recording, transcript, and slide deck of the presentation, please visit the EB5AN website.

Please join Greenberg Traurig Shareholders Kate Kalmykov and Bruce Rosetto, along with EB-5 Affiliate Network (EB5AN), for a webinar titled “Evaluating EB-5 Projects from an Immigration and Securities Law Perspectives” July 13 from 2 to 3 p.m. ET. Attendees will gain greater understanding and insights on mitigating immigration and financial risks if they engage in the EB-5 Immigrant Investor Program.

Created by Congress in 1990, the EB-5 program encourages new investment in job-creating projects and grants legal immigration status to such eligible investors, plus their spouses and unmarried children under 21. The program has undergone a number of changes in the years since and is overseen by USCIS.

Kalmykov has close to two decades of experience in business immigration matters, focusing on supporting clients and advising them on temporary and permanent residency immigration options for multinational executive, business, scientific, and information technology personnel. She has helped raise billions in foreign investment through the EB-5 program and frequently speaks about the program before domestic and international audiences. Her practice provides support to EB-5 investors as well as companies in the global transfer of personnel.

An experienced corporate attorney, Rosetto represents a spectrum of clients ranging from private and public entities to investment banks and private equity funds to those in the biotech and equestrian industries. His experience includes corporate finance, governance, securities, and transactional work as well as cross-border and real estate finance and transactions. He also advises clients seeking to raise and administer capital for qualifying EB-5 investment projects.

For the past decade, EB5AN has helped foreign investors obtain U.S. permanent residency (green cards) via qualified EB-5 investments.

A government authorized EB-5 regional center operator, EB-5 consulting firm, and global investment fund manager, EB5AN holds offices in the United States, India, Brazil, Vietnam, United Arab Emirates, Mexico, South Africa, and China.

Click here to register.

On April 25, 2023, U.S. Citizenship and Immigration Services (USCIS) hosted a stakeholder engagement webinar regarding the Immigrant Investor Program (EB-5), during which they discussed regulations being drafted to comply with the EB-5 Reform and Integrity Act (RIA). USCIS planned three discussion topics for the call, including the “winding up” of regional centers no longer operating under the RIA, updates to the “at risk” requirements for investors who filed Form I-526E Petitions after the RIA passage, and Form I-956K applications for migration agent registrations. At the outset of the stakeholder engagement, however, USCIS stated they were not prepared to discuss the winding up of regional centers or the new “at risk” requirements. Instead, the call only focused on clarifications of Form I-956K, Registration for Direct and Third-Party Promoters, and other EB-5 related issues.

The Form I-956K was published in response to the RIA requiring all direct and third-party promoters to register with USCIS. On the stakeholder call, USCIS clarified the following for I-956K completion:

  • Who must file I-956K? The person or entity that entered into the written agreement with the new commercial enterprise or regional center to market the project must file the form. In addition, certain employees of the third-party promoter or migration agent also must complete the form and file it with USCIS:
    • Executives or officers, or those who are actively promoting the EB-5 Program, should file Form I-956K. Based on this guidance, marketing staff at migration agents may need to complete this form and file it with USCIS.
    • Personnel not involved in the sale of EB-5, such as document processing specialists, are not required to file Form I-956K.
  • USCIS also stated on the call that if any agent commits fraud or material misrepresentation on the I-956K, USCIS can deny associated I-526E Petitions.
  • Filing of the I-956K is based on the promotion of the project; if the project is no longer being promoted because it was sold to investors who filed before the passage of the RIA (even if payments to agents are ongoing), the migration agents do not need to register on the basis of those older projects.
  • USCIS will publish lists of agents and promoters registered through I-956K on their website in the future.

USCIS also stated on the call that an EB-5 investor’s capital must be at risk and remain invested during the two-year period of conditional residences for those investors who filed I-526 Petitions before the passage of the RIA. This requirement did not change for investors who filed prior to March 15, 2022. USCIS did not comment on the new “at risk” requirements for investors who filed Form I-526E Petitions after the passage of the RIA.

USCIS also made the following general comments:

  • If USCIS terminates a regional center, they will notify all investors with a pending I-526/I-526E.
  • All regional centers must pay the Integrity Fund fee regardless of when they are designated.
  • USCIS does not encourage the submission of project documents along with I-526E Petitions, as the complete project documents were already included in the Form I-956F Application.
  • USCIS is taking steps to transition to electronic submission of Form I-526E and Form I-526.

USCIS did not discuss IPO operations, adjudication trends, or processing times during this call.

Immigration & Compliance Practice Shareholder Nataliya Rymer is quoted in an EB-5 Investors article titled “China’s accession to Hague’s Apostille Convention expected to streamline EB-5 processing.”

Click here to read the full article, published by EB-5 Investors Magazine April 13, 2023.

On Tuesday, April 25, 2023, U.S. Citizenship and Immigration Services (USCIS) will host a stakeholder engagement webinar regarding the Immigrant Investor Program (EB-5). The webinar, scheduled for 1:30 – 3:00 PM EDT, will provide a platform for USCIS to share pertinent information (e.g., adjudication trends, recent issues, and policy updates) with external EB-5 stakeholders. Moreover, the webinar will also allow stakeholders to provide feedback on USCIS’ policies related to the EB-5 Immigrant Investor Program.

Click here to register for the event.