The decision to invest in the EB-5 immigrant investor program is a significant life changing decision for prospective investors. A critical component of this journey is the selection of a reputable and reliable regional center. Every regional center is vying for investors' attention, and each proclaims exceptional service and sound investments. Prospective investors must undertake thorough due diligence to safeguard their investment and protect their immigration goals. The following article provides a framework as well as important questions to ask when the investor is going through their due diligence period.
USCIS Compliance and Operational History
The most important selection criteria for a regional center is adherence to U.S. citizenship and immigration services regulations. Investors must verify that a Regional Center holds an active designation and has a consistent record of filing annual certifications (Form I-924A or I-956G). This information can be found on the USCIS website.
A history of full compliance is paramount during this process. Any past citations for noncompliance should immediately disqualify a regional center and raise red flags for the prospective investor. Regional centers that have been in business for over a decade are likely to have navigated a full project lifecycle and demonstrated resilience and experience in managing the complexities of the EB-5 program. This extensive operational history often translates into a deeper understanding of USCIS requirements and a smoother application process for investors.
Track Record and Management Expertise
A regional center's track record is a correlated indicator of future performance. Prospective investors should meticulously research project success rates, I-526E and I-829 petition approval rates and the history of timely repayment of investor capital. Newer regional centers may not have a long history of approvals (we advise not to go with new regional centers for this reason) but the absence of denials can prove to be a strong indicator. The expertise and integrity of the management team are equally important to the overall success of the investment. A strong management team typically possesses relevant experience in business finance, immigration law and real estate development. Investors should investigate the professional background of key personnel and look for any history of bankruptcies, lawsuits or regulatory issues. Understanding the profit-sharing agreement between the regional center and project developers can reveal potential irregularities if excessive compensation is involved.
Project Viability and Financial Structure
The success of an EB-5 investment is intrinsically linked to the viability of the underlying project. Investors must complete due diligence on the regional center project and critically evaluate the business plan and economic assumptions of the project to determine its feasibility. Projects that are already under construction and have pre-sales are generally considered lower risk than those still in the planning stages. The financial structure of the project also warrants scrutiny. Ideally, the EB-5 capital should constitute a smaller percentage of the total project funding with the capital stack being a majority developer equity and bank loans. This capital stack reduces reliance on EB-5 funds and enhances project stability. The prospective investor should also understand the escrow agreement and how investment funds are managed and disbursed.
Transparency and Communication
Communication and Transparency are hallmarks of a trustworthy regional center. Investors should assess the regional center's responsiveness to inquiries and its professionalism in addressing concerns. Regular project progress updates and transparent disclosure of critical financial transactions are indicative of a well-managed regional center. Testimonials from past investors and ideally direct contact with them for the prospective investor can offer invaluable insights for the investor.
Who should consider the EB-5 program?
The EB-5 immigrant investor program post 2022 (Reform and Integrity Act) presents a compelling option for individuals already on a visa in the United States. The program is eligible to all foreign investors but the appeal is especially enticing for those facing visa backlogs in other employment-based categories.
What are visa backlogs?
Countries like India and China face decade long backlogs for employment-based visa categories such as EB-2. The EB-5 program offers a significantly expedited pathway to a Green Card. The RIA introduced reserved visa categories for rural areas (20%) high unemployment areas (10%) and infrastructure projects (2%). These set asides are current for all countries including India and China where these backlogs are decades long. This is a crucial advantage for EB-2 Indian nationals with a priority date (PD) as far back as December 2015 because they are still likely facing these decade long waits for a Green Card.
What are the benefits of Concurrent Filing?
The most attractive feature of the post-RIA EB-5 program for individuals residing in the United States is the ability to file Form I-526E (Immigrant petition by regional center investor) and Form I-485 (Application to adjust status) concurrently (provided their visa category is current). Concurrent filing allows investors and their immediate family members to obtain an employment Authorization document (EAD) and Advance Parole (AP) for work and travel flexibility. These documents are typically provided within 3-6 months and grant immediate relief from the constraints of non-immigrant visas. For families with children approaching 21 years of age, the EB-5 program provides a safety net. The EB-5 program offers protection against "aging out" and ensures that dependent children can also secure permanent residency.
Who is the Ideal EB-5 Candidate?
Recently Laid off tech H-1B Holder
If you are on an H-1B visa and face layoffs within the United States, the EB-5 can offer the security that you need. The EB-5 program offers a direct and relatively swift path to permanent residency and eliminates the preciousness of H-1B status and the constant threat of job loss leading to deportation. Especially considering a laid off H-1B has just 60 days to find new accommodations. This freedom and stability often far outweigh the opportunity cost of other investments especially when considering the long-term benefits of U.S. residency for themselves and their families.
HNW with Significant Visa Backlog
Individuals with substantial visa backlogs in employment-based categories stand the most to gain from the EB-5 program. Assuming a NW of $2m+ and $400,000 TC and a desire to stay in the United States it makes sense to move forward with the EB-5 program. In this scenario the EB-5 investment is not merely a financial transaction but a strategic immigration maneuver to bypass decades of waiting and with correct due diligence a return of capital. The opportunity to secure a Green Card within a significantly shorter timeframe combined with post RIA concurrent filing for work and travel authorization provides an invaluable pathway to long term stability and opportunity.
L-1A Intracompany Transferees (Execs / Managers)
L-1A visa holders that are execs or managers and are transferring into the United States from an affiliated foreign office often have significant professional experience and financial stability. The L-1A provides a pathway to the EB-1C Green Card category but this pathway can be lengthy and subject to stringent requirements. The EB-5 program offers an attractive alternative to any L-1A seeking a more predictable and stable route to permanent residency.
O-1 Visa Holders
O-1 visa holders are individuals recognized for extraordinary ability in their field. The O-1 visa itself is non-immigrant and for those O-1's aspiring to permanent residency the only other feasible route is the EB-1A category. The EB-1A can be highly subjective and demanding. For O-1 visa holders who meet the financial requirements the EB-5 offers a more direct and less subjective path to a Green Card.
Critical Deadlines
The EB-5 program is set to sunset September 30, 2027. The grandfathering clause for the current EB-5 conditions is set to expire a year earlier on September 30, 2026. This clause provides a crucial layer of protection for investors who file their I-526E before September 30, 2026. RIA introduced a mechanism to adjust the minimum threshold for investment for inflation every year with the first adjustment scheduled for January 1, 2027. The current amount is $800,000 for TEA. Experts anticipate a significant upward adjustment at the start of 2027. If investors file before September 30, 2026, they effectively lock in the same conditions and the lower investment amount.
Conclusion
The EB-5 program under the post RIA 2022 framework presents a viable and expedited path to U.S. permanent residency. The careful selection of a regional center based on rigorous due diligence, care for compliance track record project viability and management expertise is crucial to the return of capital and the success of the green card application. The EB-5 program offers a strategic and timely solution to achieve immigration aspirations for soon to be Americans.
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Frequently Asked Questions
Is EB-5 a legal and safe path to Green Card?
Yes, the program is 100% backed by the US government. The program can be safe with rigorous due diligence.
Will I get my $800K back?
Very likely with the right project selection. The investment must be at risk though this does not mean the investment must be risky.
How long do I need to wait for my Green Card?
1-2 years for your 485 approvals (or Conditional Green Card). After 2 years on Conditional Green Card (CGC), you will file to remove conditions (I-829) to get your Green Card. This can take 1-3 years. The law does not distinguish between CGC and GC. You get the same benefits and can naturalize in 5 years from initial 485 approval.
Will EB-5 retrogress and what does that mean?
The EB-5 reserved category is still current, even for Indian nationals. That means you can file your I-485 & EAD concurrently with the EB-5 petition, giving you immediate legal status and setting you on the Green Card path. With retrogression you won't be able to do that, as there are no more visas available to hand out. You will need to wait for your Priority Date to be current before you can adjust your status.
How much longer will the EB-5 program be available?
The Reform and Integrity act allowed Congress to renew EB-5 on March 15, 2022 for 5 years through September 30, 2027. All EB-5 petitions submitted prior to September 30, 2026 will be grandfathered under current rules and processed through final adjudication.
What is WOM and can I use that to expedite my GC?
Writ of Mandamus is essentially you filing a lawsuit in federal court against USCIS in order to get them to process a stuck application. WOM attorneys generally advise waiting for 6+ months from petition filing to file the WOM and will work with you to create a hardship case.
How is EB-5 different from the Trump Gold Card?
With EB-5 your $800K investment gets you GC for the ENTIRE family AND is returned to you. With the Gold Card, you outright purchase a GC with a $1M payment and skip the 2-year conditional requirement. The gold card is also $1M per family member that is filing with you.
Can I port over my EB-2 PD?
No. The EB-5 is a separate application altogether and has no correlation to EB-2.
Does my employer need to know about me filing the EB-5?
No. EB-5 is completely independent of your employer. Even though the visa is called "employment" based, your employer will not be involved in any way. Your funds will provide full-time employment to 10 American workers.
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The opinions expressed on this website are solely those of the author/presenter. The information provided is for general informational purposes only and should not be considered professional or legal advice. Student EB5 and its contributors do not endorse or take responsibility for any actions taken based on the information presented here. Visitors are strongly advised to consult with qualified immigration attorneys and financial advisors before making any EB-5 investment decisions or taking any actions based on the content on this website.
