EB-5 Investor Visa Reauthorization in June 2021. What you need to know.




The EB-5 Regional Center program is facing reauthorization in June 2021. This has resulted in some uncertainty for current and future clients. Although we do not predict issues for people who file before June 30, there are ways to mitigate your risk:


1. If you are a D&A client, your case was recently approved and you reside outside of the US, we have already contacted the EB-5 unit at USCIS asking them to expedite the transfer of your file to the NVC so that visa processing can begin as soon as possible 

2. If your case was recently approved and you live in the US, we should file your Adjustment of Status application as soon as possible  

3. If your Form I-526 petition is still pending, you may wish to consider a Writ of Mandamus (more on this below)

Click here to learn more about the EB-5 Investor Visa
Click here to contact us to discuss your case directly

Background to Current EB-5 Situation

The EB-5 Regional Center program is currently authorized on a temporary basis.  This means that the program is authorized for a discrete period of time and then it expires unless the temporary authorization is extended.

The EB-5 RC Program is currently authorized through June 30, 2021.  This June 30 date is different than those prior authorization end dates because this is the first time that the EB-5  Program authorization is not tied in with the Federal budget appropriations bill.  In the past, when the budget bill would pass, it would mean the EB-5 RC Program would automatically be extended.  In December 2019 Congress decoupled the EB-5 RC Program authorization from the budget, so that means Congress needs to pass a separate bill to extend the EB-5 RC program.  
 
Senators Grassley and Leahy have a bill drafted that will extend the EB-5 RC Program permanently but it will need receive the approval votes of a majority of Senators to pass.  We are optimistic that it will pass in some format and thus there will be no interruption in the EB-5 RC Program.  However, until it passes, there is obviously some uncertainty on what might happen after June 30.  

USCIS has not given any clarity about what will happen (1) if there is a gap between June 30 and when a new EB-5 RC law is passed or (2) if Congress never passes a new EB-5 RC law and the EB-5 RC Program authorization permanently expires on June 30.  

Our View on Reauthorization of EB-5 RC Program

We are optimistic that in the scenario where there is a gap in time between June 30 and when a new law is passed it will not impact any EB-5 petitions that were filed prior to June 30, 2021.  There have been periods of time in the past when the federal budget did not pass in a timely manner and thus the EB-5 RC Program experienced short periods when it was unauthorized—those short periods of time when the EB-5 RC Program experienced a gap in authorization did not have any impact on the EB-5 applications that were pending with USCIS at the time.  We are also optimistic that even in the unlikely event that Congress never passes a new law that reauthorizes the EB-5 RC Program that USCIS will continue to process all EB-5 related benefits for those who had pending or approved Form I-526 petitions as of June 30.

IIUSA’s View on EB-5 RC Program Reauthorization

In the last two weeks a well-known and respected EB-5 lawyer presented IIUSA’s view on the EB-5 RC Program reauthorization. This view is that if the EB-5 Regional Center Program is not reauthorized, then anyone who is not in the United States on a “conditional green card” on June 30, 2021 will have their EB-5 application terminated and will then have to re-apply all over again (probably with fresh funds) if and when the program comes-back.

How This Impacts My Case

1.         What if I have not filed my EB-5 petition (I-526) before June 30, 2021?:

If the program is allowed to expire in June 2021, then you will be unable to obtain a U.S. green card through the EB-5 RC Program and you would have to wait to see if the EB-5 RC Program is brought back in the future.


2.         I have filed an I-526 but it is awaiting adjudication:

Although the risk may be small, under the IIUSA view your case would be terminated and you would have to make a fresh application in a new project in the future.



3.         I have an I-526 approval but I am awaiting a consular interview:

In this circumstance we believe that the risk to you is lower, although under the strict IIUSA view your case would still be terminated.
 

Writ of Mandamus

 If your Form I-526 petition is still pending, you may want to file a complaint against USCIS in Federal court as soon as possible to ask the court to issue a Writ of Mandamus (WoM) that will order USCIS to make a speedy decision on your case.  Please contact us if you would like to discuss this Writ of Mandamus option further.

While our firm has traditionally counselled clients that there is no guarantee with a WoM and that filing a WoM may in fact have no impact on their I-526 case until the I-526 filing has been pending for two years, the June 2021 reauthorization issue changes our views of the risks involved. Please note, filing a WOM requires an additional fee to be paid. 


Please note, EB-5 applications related to direct investment in a company (meaning NOT done through a Regional Center) are not impacted at all by this June 30 reauthorization date.Copyright © *2020* *Davies & Associates*, All rights reserved.


 This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

End of US Travel Ban Releases Pent-Up Demand from Nigeria

President Biden’s decision to reverse President Trump’s travel ban has released pent up demand for US immigration services from Nigeria.

Nigeria was hit with a US travel ban in February 2020 after President Trump introduced new restrictions as part of his ongoing immigration reforms. The move added Nigeria and five other countries to what was widely referred to as a “Muslim Ban” that dated back to the start of his administration.

In Nigeria, where around half the population are Muslim, the ban specifically targeted those seeking permanent residency in the United States. This hit particularly hard in the family-based immigrant (Green Card) categories, but also effectively put a halt to the EB-5 immigrant investor visa program in the country.

EB-5 Visa Nigeria

The EB-5 Immigrant Investor Visa Program had been growing rapidly in popularity in Nigeria over the past few years, albeit from a low base. In 2016, 38 EB-5 visa were issued to Nigerians, and by 2018 that number had jumped to almost 100.

The travel ban coincided with an increase in the minimum investment amount for EB-5 to $900,000 and then the outbreak of Covid-19. So a temporary dampening of demand in 2020 was likely with or without the travel ban.

But now EB-5 reopens and the pent-up demand is able to unleash. There are just over 700 EB-5 visas available to each country each year. This means Nigeria has a way to go before it hits its annual cap. But if its EB-5 growth trajectory resembles other countries like India, things could move fast.

The EB-5 program provides a fast route to a Green Card for a minimum $900,000 investment that creates ten jobs. Most people invest with an EB-5 Regional Center to help ensure compliance, but it is also possible to make the investment yourself through Direct EB5. A single investment can cover the primary applicant, a spouse, and any children under 21.

L-1 Visa Nigeria

Where we are seeing the most interest right now from Nigeria is the L-1 Intracompany Transfer Visa. Technically Nigerians were not prevented from applying for this visa as part of the travel ban, but it made the whole process much harder.

Then in June 2020, President Trump announced a worldwide ban on the L-1 visa among many other visas as part of his plans to contain the economic impact of Covid-19. The L-1 visa is only just reopening as Trump’s ban expires. The pent up demand has built up quite a queue worldwide, so it is a good idea to get started on an application.

The L-1A visa allows an international manager or executive to move from the Nigerian office to the US office of the same company. If you are looking to expand your business to the US, you can use the L-1 visa to move to the US to oversee the set-up and growth of the new office. The L-1B visa permits you to transfer an employee with “Specialized knowledge” to the US.

The L-1A visa is limited to a maximum of seven years and the L-1B for a maximum of 5 years. But you would not get the full amount in one go. Nigerian L-1 visas are issued up to a maximum of 2 years, at which time you would need to apply for a renewal. After the maximum period, you must switch to a different visa or return to Nigeria.

E2 Treaty Investor Visa Plus CBI

The other visa a lot of potential Nigerian clients ask us about is the E-2 Treaty Investor Visa. The E-2 visa allows a person to move to the US for the purposes of owning and operating a business. People use it to buy restaurant franchises or gas stations, but the business opportunities are much broader than this. You no longer even need physical premises.

The visa is hugely popular, but there is one catch for Nigerians. Nigeria does not hold an E-2 Treaty with the USA. This means that Nigerians seeking an E-2 visa need to first become citizens of a country that does have a treaty. The process is known as E-2 + CBI.

The two E-2 countries with the cheapest and fastest routes to citizenship are Turkey and Grenada. Turkish citizenship can be obtained with an investment in real estate from $250,000 or bank deposits worth more than $500,000. Grenadian citizenship can be obtained with a donation from $150,000 or a real estate investment from $220,000. Citizenship of both countries can be obtained in a matter of months.

The extra step can seem like a hassle, but we have helped clients through this prcoess and it is simpler than it sounds. Plus, for many, the E-2 visa is worth the effort. Spouses of the primary applicant can apply for a separate US work permit, investment requirements are relatively low, and the visa can be renewed forever – provided the business is still in good operation.


The combination of Covid-19 and a travel ban has hit Nigerian immigration to the United States hard. But the travel ban is lifting and the vaccination program is underway. The 2020s look set to be brighter for Nigerians hoping to move to the United States.


This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


EB-5 Source of Funds for Italians. Webinar.

Join Mark I. Davies, our chairman, and Matteo Tisato, Senior Immigration analyst in our Italy Practice for a webinar with EB5AN today at 2pm EST / 8pm Italy. Click the link below to register & the same link to view a recording after the event.

Source of Funds for EB-5

In order to ensure the integrity of the EB-5 Investor Visa Program, applicants must be able to document where the funds used to pay for their Green Cards come from. An applicant must demonstrate that they are the owner of the funds being invested and that they came by these funds through legal means.

Since the total investment requirement for EB-5 is a minimum of $900,000, many of our clients need to pull together funds from multiple different sources. This can include wages, the sale of property, capital gains on investments, gifts from friends and family, as well as loans.

In reality this can be quite complicated, and your EB-5 immigration attorney will play a vital role in helping you to make strategic decisions about which funds to use for your EB-5 investment.

For example, you will need to prove that all taxes have been paid on the sources of income and that there is appropriate collateral against any loans.

Crucially, it is important that the relevant documents are translated into English. Therefore, it is very helpful to work with law firms with in-house Italian language capabilities. Matteo Tisato, our Senior Immigration Analyst, works with our Italian clients in this respect.

Davies & Associates Source of Funds team across the United States is highly experienced. They have dealt with hundreds of cases and have a 100% success rate in this aspect of the application.

What is EB-5?

The EB-5 visa grants a person US permanent residency (Green Card) in exchange for a minimum $900,000 investment. A single application and investment can include the primary applicant, their spouse, and any children under the age of 21.

In addition to documenting the Source of Funds, the other key requirements of EB5 are are

  • invest in a New Commercial Enterprise
  • create at least ten jobs
  • invest at least $900,000 in a Targeted Employment Area or $1.8 million outside of these areas.

To help ensure compliance with the rules and to minimize risks to the Green Card, the vast majority of EB-5 investors elect to work with a Regional Center, but it is possible to make and manage the investment yourself in so-called “Direct EB-5”.

Webinar

On today’s webinar, Mark and Matteo will be joined by Sam Silverman and Michael Schoenfeld, cofounders and managing partners of EB5 Affiliate Network (EB5AN). a leading EB-5 consultancy and Regional Center network.

Our appearance alongside EB5AN is in no way an endorsement of their work or projects. As a law firm we offer our clients impartial due diligence on their chosen Regional Center projects. Our attorneys assist clients with identifying the risks to both their Green Card and the return of their capital – whichever Regional Centers they shortlist.

The webinar is scheduled for Thursday, February 18, 2021 and will share valuable information on the challenges EB-5 investors face with respect to of source-of-funds documentation. The webinar will break down this complicated issue for an Italian audience, with Matteo from our Italy team on hand to provide translation into Italian where necessary.

The EB-5 program faces reauthorization at the end of June 2021. The likelihood is that the program will continue, given the large number of jobs it creates and the billions of dollars in investment it brings to the United States. Yet, nothing can be taken for granted. Anyone considering the program should consider acting before the end of June. Given the time it takes to document Source of Funds to prepare an application, the time to start is now.

Please click here to register for the webinar, or to view a recording of the webinar.


This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


FEMA-Compliant Immigration: Remitting Funds from India at the Beginning & End of the Financial Year

The Indian government limits the amount of money a person can take out of the country each year, which can present hurdles to emigration. But a quirk of the system offers an opportunity at the end of the tax year in March.

Since 2015, the Liberalised Remittance Scheme (LRS) introduced by the Royal Bank of India under the Foreign Exchange Management Act (FEMA) limits the amount of money a person can take out of India each financial year to a maximum of $250,000. Whilst this is a vast sum of money for most, these limits can actually be too low for people seeking investment and business immigration.

EB-5 Immigrant Investor Visa from India

Citizenship and residency by investment programs usually require considerably more than $250,000. For example, the United States EB-5 Immigrant Investor Program, requires a minimum investment of $900,000 per family.

Theoretically, it would take four financial years for a single person to remit the necessary funds to pay for EB-5. But in practice, most applicants get friends and families to use their annual remittance allowance to build up the necessary funds in a shorter period of time.

This has implications for documenting the Source of Funds used to pay for EB-5. Each dollar needs to come from legitimate sources and should be adequately accounted for. Any funds being gifted by a relative need to go through the same rigorous scrutiny as your own.

Read more EB-5 Visa for Indians

Split Remittances

Yet some of our Indian clients adopt a different approach. The financial year in India resets on April 1. This means it is possible to transfer $250,000 in March and a further $250,000 a month later in April. That brings the total to $500,000 per person in a short space of time.

Many of our EB-5 clients move with a spouse who would be part of the same investment and application. (A single application and single investment leads to Green Cards for the primary applicant, any spouse and children under the age of 21). So, if both spouses remitted in this way, the applicant family is at $1,000,000 without the need to involve extended family.

The majority of our remaining clients are younger adults, often recent graduates hopeful of staying in the US, but concerned with H-1B or having used up the maximum time allowable on this visa. They often have parental support. Again, using the March/April time period, allows the applicant and a parent to make up the necessary funds.

E-2 Treaty Investor Visa from India

Demand for EB-5 visa from india has become more stable after skyrocketing over the past five years. It is now the turn of the E-2 visa to become the new frontier in Indian immigration to the United States.

The E-2 Visa allows a person to move to the US with their family for the purposes of owning and operating a business. The investment level is usually much lower, and regularly falls well under the annual remittance allowance. Broadly speaking, it should be more than $100,000, but the key is to make sure the investment level would support the needs of the business you are buying or starting.

But here is the rub. Indians are not directly eligible because India does not hold a relevant treaty with the United States. Indian have to first become citizens of an E-2 Treaty country to become eligible. It is not as complicated as it sounds, and we have helped a number of Indian clients move to America in this way.

The E-2 country with the fastest and cheapest route to citizenship is Grenada in the West Indies. It requires an investment in real estate from $220,000 or a donation to the public funds from $150,000. Alone, either the investment or the donation route is below India’s annual remittance cap. But, when combined with your E-2 investment, you quickly surpass the annual limit.

Read more about Grenada Citizenship by Investment

Spouses using both their allowances can aggregate their annual allowance to $500,000 which should be sufficient. But where this is not possible, or where more money is required, the March / April split remittances may prove useful.

With the India to Grenada to E-2 route, there is also more room for manoeuvre with the timings. With EB-5 a client is expected to have all the funds pretty much at once depending on the EB-5 Regional Center you are investing with. But with Grenada and E-2, you can neatly divide the process into two sections and pursue Grenada and then E-2 in different financial years.

But note, the whole India to Grenada to E-2 process is fast. It can take less than nine months in total. So, with this in mind, so the March/April window can still be crucial in certain circumstances.

Living Expenses

So far, we have only talked about remitting the funds needed to secure the immigration status. You need a place to live and money to spend on personal expenses and school fees until you have found work or your business is turning a profit.

All these day-to-day expenses would need to be included in the remittance calculations, enhancing the case for splitting payments around the start and end of the financial year.

Wider World

The United States is not the only destination we serve at Davies & Associates, and it is by no means the only place Indians wish to emigrate. Whether you want to move to the United Kingdom, Canada, Australia, Italy or beyond, you need to consider the limitations posed by the Liberalised Remittance Scheme at the very start of the process.

The window for moving more than $250,000 money in a legally compliant way is now open, but will close again in April. People considering emigrating in the short to medium term may wish to make use of the FY2020-21 remittance allowance to keep their options open over the coming year.

Davies & Associates can help with all of this. Everyone’s circumstances are different. It is best to contact us to discuss your specific situation to work out how your immigration goals can be met in a FEMA-compliant way.


This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


November Visa Bulletin Analysis for EB 5 Investor Visa

January Visa Bulletin Analysis for EB-5 and Employment-Based Visas


The U.S. Department of State’s January Visa bulletin shows very little change since our previous analysis. In the EB-5 immigrant investor visa category, only China and Vietnam continue to face delays. There has been no movement in the priority dates for EB-5 applicants born in China and only very slight progress for Vietnam with a revised Final Action Date of September 15, 2017.

India continues to remain “current”, meaning Indian EB-5 applicants are still no longer subject to retrogression delays. Yet, this could change. Our firm is seeing a recovery in demand following the initial “sticker shock” of the increased EB-5 investment amounts in November 2019.


Understanding Priority Dates

The date referred to in the visa bulletin is a “priority date”. This is the date that the US Citizenship and Immigration Services receives your initial EB-5 petition (form I-526).

If your country of birth is not listed in the visa bulletin or it is listed with a “C” next to it (meaning current), this means there is no waiting list for people born in your country and your application can proceed immediately.

If there is a date next to the country in which you were born, you will need to wait until your priority date becomes current. That means waiting until your priority date is before the date listed in the visa bulletin.

So this month, for EB-5 we only saw very slight movement in the Final Action Date associated with Vietnam. It moved from September 1, 2017 in the December 2020 visa bulletin to September 15, 2017 in the most recent one. This means there is expected to be a visa available to any EB-5 investor from Vietnam with a priority date in this two week window.


Final Action Date vs Dates for Filing

The visa bulletin has two tables associated with EB-5 and other employment-based visa categories. This is because they are signalling two different things to applicants.

One relates to “Final Action Dates”, which is when there is expected to be a visa available to people born in that particular country. The other table is the “Date for Filing”, which is when you can submit a visa application to the National Visa Center, even though there might not yet be a visa available. For applicants already inside the US making an “Adjustment of Status” (AOS), this may have implications for your rights to work.

The Date for Filing remains current for all countries except China. The Date for Filing for China-born applicants has not moved this month.


Final Action Dates Table

Note: EB-5 is – as the name suggests – the fifth of five employment-based immigrant visa category


Date for Filing Table

Understanding Waiting Lists

The reason some countries are subject to a waiting list is because these employment-based immigrant visa categories are subject to an annual per-country quota. In terms of EB-5 this is just over 700 visas per country per year, determined by a person’s citizenship at birth rather than any subsequent changes to citizenship.

When demand exceeds supply, countries are subject to a waiting list. Priority dates can sometimes cause confusion, especially as they can move backwards as well as forwards. This happens partly because it can be difficult to predict the exact number of people in the queue and much relies on a series of assumptions based upon past averages.

The number of applications is not equal to the number of visas / Green Cards. A single EB-5 visa application can cover not just the applicant, but a spouse, and children under the age of 21 – which means multiple visas are required for the one application.

Furthermore, it is difficult to know exactly how many people ahead of you in the queue would be denied or required to provide further evidence (RfE).

One of the main reason for a denial or demands for more evidence is poorly documented Source of Funds. To avoid this happening, it is vital to select a reputable law firm who has a strong track record in this area. Here at Davies & Associates we have never had a client rejected because of a Source of Funds issue.


Other Employment-Based Categories

For the EB-3 visa category for highly-skilled workers, every country is current except for India and China. The EB-3, which is essentially the long-term immigrant counterpart to the H-1B visa, is inevitably very popular in India. The waiting list for Indian applicants is very long and only moved forward one week from March 15, 2010 to March 22, 2010. China moved forward six weeks from November 1, 2017 to December 15, 2020.

For the EB-1 visa category for extraordinary talent, researchers, and managers & executives, again India and China are the only country in retrogression. One of the reasons these two countries appears so often in this analysis is that the annual quotas do not take account of population size and are not determined on a per capita basis. China and India have the world’s largest populations as well as a long tradition of immigration to the United States.

The Final Action Dates are the same for both countries at September 1, 2019, having both moved forward by the same five month period since the last visa bulletin.


This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


EB-5 Investor Visa Processing Times Fall to Four Year Low

EB-5 Investor Visa Average Processing Times Falls to Just 14 months

The United States Citizenship and Immigration Services (USCIS) has announced that processing times for Form I-526 – the EB-5 application form – has fallen to a five year low of just 14 months on average.

Conventional belief holds that average processing times are much longer because of the confusion caused by the processing time range published on the USCIS website. That range currently lists this time range as between 33.5 months and 60 months.

What the Current Processing Times on USCIS Website Actually Mean

Yet those numbers can be misleading. USCIS calculates the date range as follows: the first date is the average time that it takes them to process 50% of cases, while the second date is the average time that it takes them to process 93% of cases.

So within those parameters, many EB-5 applicants experience much shorter processing times as the latest figures published by USCIS attest. It is the longer and more complicated cases that draw the time our. Direct EB-5 (non Regional Center), for example, are usually more complicated and take longer to process.

This is good news for anyone considering an EB-5 visa application. Especially those from countries that are not currently subject to retrogression delays. I.e. anyone except those born in China and Vietnam.

USCIS changed the way it sequences applications from a first-in-first-served basis to one where it prioritizes people applying from countries not in retrogression.

Average Processing Times for Form I-526 (Source: USCIS)

Year Average Processing Time
201615.9 months
201718.8 months
201822.2 months
201919.8 months
202014.1 months

The submission of the form I-526 is the first official stage of the EB-5 process. The date USCIS received your form becomes your “priority date”. This needs to be checked against the State Department’s visa bulletin to establish if you can proceed to the next stage and submit your application to the National Visa Center.

The vast majority of countries are listed as “Current” meaning you can move immediately to the next stage. Countries with a date listed against EB-5 in the visa bulletin – currently only Vietnam and China – must wait. There are two separate dates, a date for filing and a final action date. We explain what this means in our analysis of the visa bulletin. Click here for more.

The EB-5 visa provides a relatively fast route to a Green Card in exchange for a minimum $900,000 in a new venture that creates ten jobs. The investment must be made in a targeted employment area, otherwise the investment level doubles to $1.8 million. The vast majority of investors opt to invest with Regional Centers to mitigate compliance risks. Conducting due diligence on the Regional Center and its investment project is vital. One application and investment can include the applicant, a spouse, and children under the age of 21.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


Clients Wait Out the EB-5 Queue in the USA Using E-2 Visa

D&A Clients Wait Out the EB-5 Queue in the USA Using E-2 Visa

We are delighted to have received yet another E-2 Treaty Investor Visa approval today. This time it’s for a client who already has an approved EB-5 application, but is facing a wait before an EB-5 visa becomes available. In fact, she is part of a growing trend of people looking to the E-2 visa as a means of moving to the United States faster than EB-5 allows.

The EB-5 Visa is proving fantastically popular in some quarters – especially China and Vietnam where supply is often outpacing demand. As well as India, South Korea and Taiwan where demand is fast catching up with supply.

When demand exceeds supply, that country is subject to a waiting list for EB-5.

There are normally around 700 EB-5 visas available to each country per year. The quota does not take account of population size, which partially explains why demand is so high in certain countries.

Growing demand can also be explained by the fact that the EB-5 investor visa is offers permanent residency at a lower cost than other similar nations, for example the UK starts from £2 million and Italy, which was mostly more expensive until the Italian government reduced its investment amounts over the summer in response to Covid-19.

How long are the delays?

It is hard to calculate the exact length of the delay faced by each country because they are subject to so many moving parts. We explain the delays in more detail in our analyses of the visa bulletins.

Citizens of China are subject to extremely long, multi-year delays. For Vietnam the delay is shorter but still an inconvenience. And for India there is currently no delay, but there were delays as recently as this summer. Taiwan and South Korea have never faced delays, but they are heading in that direction.

Some people opt to wait out the delays in their home country, but others are keen to get to the United States sooner. That is where the E-2 visa comes in.

The E-2 Visa has no waiting list and processing times are very fast

The EB-5 country-quota depends upon a person’s country of birth rather than their current citizenship. For example, the client approved for E-2 today was born in mainland China but is currently an Australian citizen. That means that for EB-5 purposes our client is subject to the China quota – which has a long waiting list – rather than the Australian quota which has never come anywhere close to its annual cap.

Yet that Australian citizenship has come in handy when it comes to the E-2 Treaty Investor Visa. Because, although there are no caps or quotas for E-2, eligibility for this visa is determined by your country of citizenship.

China does not hold and E-2 Treaty Country with the United States, so its citizens are ineligible. Australia, on the other hand, has a well-established treaty that makes its citizens eligible for the E-2 visa.

Essentially, you must be a citizen of an E-2 Treaty country in order to qualify for an E-2 visa. This means the country in which you hold citizenship must hold a relevant Treaty with the United States. Click here to find out if your country is on the list.

Becoming eligible for the E-2 Visa

If your country is not on the list then you can become eligible through a two-step process. First you need to obtain citizenship of an E-2 Treaty country, then you can apply for the E-2.

It sounds complicated, but in reality it is relatively simply. We have done this for a number of clients in the past. The whole process can take as little as nine months if everything runs smoothly.

Grenada and Turkey offer fast and cost-effective routes to citizenship that can provide a springboard to the E-2 Visa. Learn more about Grenada’s citizenship program here. Learn more about Turkey here.

Benefits of the E-2 Visa

So why have people bothered going to so much trouble? Well for one thing, Turkey and Grenada offer multiple benefits in their own right. But also because people get excited by the E-2 visa, which allows them to move to the United States for the purposes of owning and operating a business.

  • Investment requirements are relatively modest (no hard-and-fast rule, but usually starting from around $100,000).
  • You can start your own business or purchase a franchise
  • You can bring your spouse and children with you
  • Spouses can apply to work outside the business
  • You have freedom to travel to and from United States
  • There is no longer a requirement for a physical office space
  • The visa is renewable indefinitely – if the underlying business remains

E2 to EB-5

Unlike the EB-5 visa, the E-2 visa does not offer permanent residency. So if you close the underlying business, you would be required to leave the United States or find an alternative.

The E-2 Business Could Qualify for EB-5 if it Meets the Requirements

That is where the EB-5 comes in. There are two options for transitioning to EB-5 from E-2. Firstly, if your E-2 business has grown large enough, it may qualify as an EB-5 investment in its own right. The invested capital would need to be more than $900,000 if your business is situated in a targeted employment area ($1.8 million outside of these areas). It would also need to be able to sustain ten full-time employees.

Alternatively, you can invest in the EB-5 Regional Center program separately to your E-2 business. This removes the challenge of ensuring your business is consistently compliant with the EB-5 rules. While the Regional Center works to ensure compliance, you and your attorney should still be conducting due diligence on the Regional Center’s investment project to identify any risks to your Green Card and investment.

Case study

Our client established a New York-based company that sells well-designed, high quality, comfortable women’s clothing. It sells products online but the items will also be available in luxury department stores.  

Customers are able to order items directly from the Company’s website, Instagram, or mobile application. The Company uses engaging social media content, with a focus on building a brand through storytelling and it employs technology to create an immersive experience for clients through application of augmented reality (AR).

Our client was born in China but is currently an Australian citizen. She already has an approved EB-5 application (Form I-526), but faced a long wait for an EB-5 visa with all other Chinese-born applicants.

Chinese citizens are not eligible for the E-2 visa, but by holding Australian citizenship, she was eligible. This means the client was able to apply for an E-2 visa to pursue her entrepreneurial dreams in the United States.

Nevertheless, most of her funds came from China, which meant there were restrictions on the transfer of funds that required careful planning. Additionally, the closure of the US consulates in Melbourne delayed the interview and slowed the whole process by several months.

We wish her the best of luck in America.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


EB-5 Visa Quotas in 2021

EB-5 Visa Quotas Almost Double in 2021, Potentially Benefiting India, China, Vietnam

The number of EB-5 visas available to investors is set to almost double in the coming year – a peculiar side-effect of the Covid-19 pandemic.

EB-5 is an employment-based US immigrant visa. The number of employment-based immigrant visas available each year is limited to 140,000. However, this is topped up if there are any unused family-based visas from the previous year.

The Covid-19 pandemic has led to an unprecedented number of unused family-based visas. The closure of US embassies and the temporary suspension of various visa categories have had a significant impact.

This means there is a large number of visas that can be carried over from the family-based allocation to the employment-based one. The October Visa Bulletin puts this at 121,500 visas.

When added to the 140,000 visas, this means that 261,500 employment-based visas are available for the fiscal year 2021, which runs from October 2020 to September 2021.

What does this mean for EB-5?

As the acronym suggests, EB-5 is the fifth employment-based visa category. It targets foreign investors with an offer of permanent residency (Green Card) for a $900,000 investment that creates ten American jobs in a Targeted Employment Area. Learn more.

EB-5 is limited to 7.1% of the total employment-based visas available in any given year. Normally this is almost 10,000 visas, but in the bumper FY2021 this will jump to 18,566 visas.

18,566 EB-5 Visas Available in FY2021

Each country is subject to an annual cap. No country can exceed more than 7% of the total EB-5 visas available. This is determined by country of birth (unlike the E-2 Treaty Investor Visa, which takes account of country of current citizenship see: E-2 plus Citizenship by Investment)

Normally, that means each country is subject to an annual quota of around 700 visas. Note: that the number of visas does not equate to the number of applications. A single application and investment can cover the applicant, a spouse, and dependant children under 21. Each individual would be counted separately in terms of visas but together as one in terms of applications.

The 2021 rollover means 1299 visas available to each country in this fiscal year. While most countries don’t come close to this annual limit, three countries are or have been severely impacted by this: India, China and Vietnam.

EB-5 Country Quota of 1300 in FY2021

Demand for EB-5 visa from these three countries is especially high and has often exceeded supply. This is a result of their large populations and historically high levels of interest in emigrating to the United States.

When demand exceeds supply, the countries enter what is called visa retrogression and applicants face a waiting list. How this work in practice is detailed on our visa bulletin blog.

With more visas available, there is opportunity for China and Vietnam to make greater inroads into the current backlogs. This would significantly reduce waiting times. India has not faced retrogression since July, but it had been teetering close to a return to waiting list. The risk of retrogression would recede.

India and China also face visa retrogressing in other employment-based visa categories, including EB-1 for people with extraordinary ability and EB-3 for highly skilled workers. The waiting times in both these visa categories may also fall.

Ongoing Covid-19 Pandemic

Caveats remain. An increase in visa availability would need to be matched by an administrative capacity to cope. With the Covid-19 pandemic continuing, it is unlikely that business-as-usual will resume anytime soon.

This may mean that India, Vietnam and China are unable to make full use of the extra visa availability in 2021. Any unused visas would not be rolled over again.

Yet, the ongoing pandemic may also mean that family-based visas will not use up their full allocation in 2021 either. This portends further rollovers into the employment-based visa categories in 2022.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


EB5 Visa: Cost of Form I-526 Increasing by 9% from October

US Citizenship and Immigration Services (USCIS) announced the outcome of its biennial fee review earlier this month. Form I-526 – Immigrant Petition by Alien Investor – will be subject to a price increase. The form, which is the first step of the EB-5 application process, will increase to $4,010 from October. This represents a 9% increase on the current price of $3675.

An increase in the minimum investment amount last November is the principle reason for the large increase. At that time, the minimum investment requirement almost doubled from $500,000 to $900,000 in a Targeted Employment Area (TEA) and from $1 million to $1.8 million outside of a TEA.

USCIS argues that the increased investment amount means that the Source of Funds work – critical to an I-526 adjudication – has become more complicated, resulting in additional work for the agency. Complicated source of funds often need to go through a managerial review, adding extra cost.

While the price increase is partly to reflect the increased workload for USCIS case officers, there is another reason behind this. The review states that USCIS significantly “overestimated” demand for EB-5, which will lead to a budget shortfall. USCIS is almost entirely fee funded, which makes this especially problematic.

The reason for the overestimation is that demand was calculated before the minimum investment amount increased last November. That increase has dampened demand and the cost of the I-526 has been increased to mitigate that.

The I-829 Form – the Petition by Investor to Remove Conditions on Permanent Residency Status – has registered a more modest 4% price increase. This form comes later in the EB-5 process when an investor is eligible to remove the conditions on their Green Card. The new price of an I-829 is $3,900.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


President Trump Reverses Ban on Foreign Students Taking Online Courses

President Trump has been forced to make a U-Turn on his attempts to revoke the immigration status of international students taking online courses in the fall. Most university courses across the United States have gone online in response to the Coronavirus pandemic, and many are expected to stay that way for the fall semester.

Students and their parents from around the world had been left to reconsider their education plans as a result of the president’s initial announcement.

However, a federal legal challenge by Harvard and the Massachusetts Institute of Technology (MIT) caused the Trump administration to rescind the policy.

Almost 400,000 F-1 student visas were issued last year. International students bring billions of dollars to the US economy in tuition fees and spending.

Many of our clients use the F-1 visa to send their children to school in the United States before transitioning to other visa categories after graduation. Some of those visas, particularly the H-1B, is currently under suspension because of President Trump’s executive order of June 2020.

However, other visa categories are not suspended. The EB-5 Immigrant Investor Visa Program is a relatively fast route to a US Green Card requiring a $900,000 investment. The E-2 Treaty Investor Visa requires a plan to invest in and run a US-based business. As we mentioned in a previous blog posts, it is possible for parents and children to co-own the company to prevent the child from ageing out. Citizens of certain countries have to first obtain additional citizenship, often of Grenada or Turkey. This is usually a relatively straightforward process, contact us to discuss.

Both the E-2 Visa and the EB-5 Visa are exempt from the so-called “immigration ban”. A high proportion of our EB-5 clients are motivated to apply because of their children’s studies and work prospects after graduation.

Written by Duncan Hill. This blog is for informational purposes only, nothing in this blog constitutes legal advice. Contact us for a free consultation to discuss your circumstances.