The Immigration Procedures under the EB-5 Immigrant Investor Pilot Program

We begin the EB5 immigration process with a free consultation, by phone or at our office. During that consultation we will discuss the general aspects of the regional Center Program as well as the basic requirements to qualify as an investor. Once you retain us by signing an agreement for representation and paying the retainer, we will forward an extensive checklist to gather basic information on your particular circumstances and the legality of the investment funds.

The investor must invest $500,000 in a USCIS-designated regional center program before we can file the I-526 Immigrant Petition by Alien Entrepreneur. It is crucial for obtaining approval of the initial I-526 petition that the invested funds were legally earned. This evidence should include copies of at least 5 years of tax returns, proof of the employment or business activity from which it was earned, documentation from any recent transactions from which the money was derived, such as the sale of land or from an equity line on a property.

Alternatively, if you received the funds as a gift, then we need to present information on how the person, from whom you received the gift, earned the money. We file the I-526 petition, and it takes approximately 7-9 months for the I-526 petition to be decided. The processing time can vary from one regional center to another and from one investor to another. When the I-526 petition is approved, if you are already living in the U.S. in non-immigrant visa status, you may adjust your status to conditional permanent residence in the U.S.

If you are not currently living in the U.S. in non-immigrant visa status, then you must complete the immigrant visa process through the U.S. consulate, which typically takes 4-6 months at most consulates. Adjustment of status typically takes less than 3 months. Consular immigrant visa processing is also available to those present in the U.S. with non-immigrant visa status, and would typically come into play when less time is left on the current visa status than the usual processing time for the I-526 petition, and the extension of the visa status is looking uncertain.

Once you successfully complete either of these two processes, you will have a two-year conditional permanent residence. During the final 90 days of that two-year period, you must file the I-829 petition to remove the conditions from your permanent residence. As part of that process, we must show that you have maintained your investment, and we have to present proof to USCIS from the regional center that it has brought about the creation of at least 10 jobs per immigrant investor, as presented in the I-526 petition. The number of jobs created as calculated with the help of an economist’s model, would consist of a combination of direct, indirect, and induced jobs. This process currently takes about 6-9 months.

One other point to bear in mind is that the Immigrant Investor Pilot Program, as a pilot program, has functioned on a test basis since its creation, and so Congress has needed to renew the program every few years, typically every 3 to 5 years. Most recently, the program was set to expire on September 30, 2008. After several short-term extensions, on October 28, 2009, the program was extended for three years to September 30, 2012. On the positive side, in the past, Congress has used the renewal process to reform the program in ways that have improved its functionality. On the negative side, Congress typically procrastinates until the last minute with extending the program, which creates uncertainty and nervousness about whether there will be a temporary lapse in, or even a permanent demise of, the program. Nevertheless, no matter how dysfunctional the program was at any point when it was up for renewal, Congress has not let the IIPP lapse.

In the past, Congress has renewed the IIPP at times when the program was, in effect, not functioning and existed in law but not in practice. Now, the program is actually fulfilling its function by bringing billions of dollars of foreign capital into the U.S. and bringing about the creation of hundreds of thousands of new jobs for U.S. workers, particularly at a time when the economy is down, unemployment is high, and banks are refusing to loan sufficient capital to carry out large-scale construction and business expansion projects. Capital from EB-5 investors is filling this large gap, and often on terms more favorable to U.S. businesses than bank loans would be. The IIPP is, in effect, an economic stimulus program that costs the U.S. taxpayer practically nothing.

Another factor in the renewal of the IIPP is that, since the last renewal of the program, the number of regional centers has ballooned from 18 to over 200. The regional centers were previously located in less than 18 states, but they are now located in 39 states, plus the District of Columbia and Guam. That means that that many more Members of Congress have one or more regional centers in their district. For those who do not yet have a regional center in their district, there is the potential for an existing regional center to expand into their district or for a new regional center to be created in their district in the future.

Certainly, no one has a crystal ball to predict the ultimate fate of the IIPP, but the reasons that Members of Congress have for renewing or making the program permanent are greater than they have ever been in the past. The program is working, albeit not as quickly and efficiently as it could or should, to bring in foreign capital and create jobs for U.S. workers at a time when the U.S.’s economic condition is weak. Moreover, the economic benefits of the program are now being distributed more evenly across the U.S. to the districts of more Members of Congress who will be voting on whether to extend the program or make it permanent. The reasons for renewing or making the program permanent are greater in number than those against, and the current economic conditions in the U.S. make the reasons in favor even more compelling, especially when the opinion polls of U.S. voters indicate that, in upcoming elections in 2012, they plan to hold politicians accountable for what they have done, or have not done, to foster job creation.

What would be the effect of a lapse in the IIPP? In order for the sunset (expiration) of the program not to affect the EB-5 investor’s case, both the I-526 petition and the I-485 adjustment of status or the application for an immigrant visa through consular processing must be approved prior to the sunset of the program. If the investor’s I-485 adjustment of status or application for an immigrant visa has been approved prior to the sunset, then the investor will be able to proceed to live in the U.S. in conditional permanent resident status and will be eligible to apply to remove the conditions from such status regardless of whether the program has been extended.

Just a reminder:

My name is Anthony Olson, and I am a lawyer who operates an immigration law practice with offices in Sarasota and Fort Myers, Florida. The following information includes my analysis of certain aspects of the Regional Center program that you should consider in seeking to optimize your chances of success in the United States immigration process. Also included is a discussion detailing the process of applying for permanent residence in the U.S. through the EB-5 Immigrant Investor Pilot Program.

Please understand that any information contained herein do not constitute legal advice, nor investment advice, nor a due diligence report of any kind, and that your receipt of this information does not by itself create an attorney-client relationship.

Tomorrow we will look at: Exit Strategy