approval rate for I-526 petitions have been approximately 85
percent and over 90 percent for I-829 petitions.
c. Slow AAO review
If the investor’s petition is denied at any stage, the investor
can request administrative review. However, this requires an
additional month to possibly years of waiting for the review to
be completed.
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considerable risk that investors take. As such, investors usually
make their choice of investment after significant consideration
and due diligence research.
Despite significant due diligence review by multiple parties,
no one can guarantee that an investor will obtain a green card
at the end of the EB-5 process because it is uncertain whether
the investment funds will create the required number of jobs
until investor applies for removal of condition in five or more
years after initial investment.
IV. What Other Potential Challenges Do EB-5
Investors Face?
a. Political Change
Until a permanent law is passed for the EB-5 Regional
Center Program, the program’s expiration is a real possibility.
The recent September 30, 2015 sunset date for the regional
center program is a good example of the difficulties faced by
EB-5 investors. Investors were unsure whether the program
would sunset and cause them to lose their chance to receive
a green card even if they have already filed their petitions.
Investors were also worried that a new bill’s requirements would
retroactively affect their filed petitions.
This review usually focuses on certain nationalities, countries
visited or residence, education, training, and individual occupations. It is also a much higher level of review for activities such
as human and drug trafficking, money laundering, support of
and actual terrorist activities, and other crimes.
d. Dishonesty and Failures
While there are now and then unscrupulous, agents, middlemen/woman, project developers, regional center operators and
the professional service providers in the EB-5 arena, this is not
uncommon among other industries. In any industry, there will
be some bad actors. Although this is a challenge, which the
recently proposed legislation sought to correct through greater
enforcement measures, the number of bad actors, or failures are
very few proportionate to the number and sizes of the projects.
CONCLUSION
The EB-5 visa is perhaps the most difficult EB visa to obtain.
In addition to investing the requisite amount of capital, the
investors have to prove that their investment created the
requisite number of qualified jobs for U.S. workers in order
for them to attain their green card. This is a long and difficult
process. If potential investors want a quick way to obtain a
green card, then they should look into another visa category
instead of EB-5.
★
Even though the 1990 EB-5 Program is permanent law, new
legislation can still affect certain aspects of the law, such as
minimum investment amount, definition of targeted employment area, and source of funds standard. Although unlikely,
Congress could repeal the la w and terminate the EB-5 Regional
Center Program completely.
Current and potential EB-5 investors should be aware of
these risks.
David
Hirson
David Hirson is the managing partner of David
Hirson & Partners LLP. He has been certified
continuously as a Specialist in Immigration and
Nationality Law by the State Bar of California,
Board of Legal Specialization since 1990, and
has worked on EB-5 cases since the program
was established. Hirson filed many of the EB-5
cases that were approved throughout the
first 10 years of the EB-5 visa program. He is
considered a direct investment and regional
center expert, and handles the immigration
accounts of Fortune 500 companies.
b. RFEs and NOIDs
Despite all the hard work and effort by the project, investors,
attorneys, agents, source of funds companies and translation
companies to prepare the best petitions possible, USCIS may
still issue requests for evidence (RFEs) and notices of intent
to deny (NOIDs). Investors should not be surprised if their petitions receive an RFE or NOID. If analyzed and dealt with carefully by experienced immigrant counsel, responses to the RFE or
NOID can usually overcome any lingering doubts adjudicators
have. Even though this process may take an additional few
months, most petitions would eventually be approved. Recent
66
Winnie Ng
EB5 INVESTORS MAGAZINE
Winnie Ng is an immigration attorney at David
Hirson & Partners LLP. She handles EB-5 investor
applications from I-526 application through
I-829 approval. She also provides legal advice to
clients to set up their regional centers, regional
center projects, and direct investment projects.
In addition to her focus on EB-5 investment
immigration, she consults with clients in all
other areas of immigration law, especially L-1
and EB-1C visas. Ng is fluent in both Cantonese
and Mandarin, and she is a frequent speaker and
moderator on EB-5 conference panels in both
Asia and the United States.