EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 | Page 12

EB-5 clients seem concerned with just keeping their doors open; depending on what stage they are at in the conditional residency process, their ability to sustain their investment and create the required amount of jobs could be in serious jeopardy. Their very ability to remain in the United States is at stake. Direct EB-5 investors are concerned with job creation timing, much of which has been suspended during the pandemic due to economic realities. Timetables and business plan projections are “out the window” and this puts stress on direct EB-5 investors who are waiting for USCIS to review their pending I-526 or I-829 and dreading the seemingly unavoidable Request for Evidence (RFE), which will likely require evidence they do not have yet. These business owners have a myriad of questions about issues like PPP or EIDL loans: do they qualify? Will it affect their immigration case? What if they have had to furlough employees or temporarily reduce hours for full-time employees? The direct EB-5 investors, who are nearly all small business owners, have taken the brunt of the economic effects of COVID-19. TIMING IS EVERYTHING WHEN DETERMINING WHAT COVID-19 EFFECTS WILL MEAN FOR EB-5 IMMIGRATION CASES EARLY STAGE OF EB-5 (I-526 PENDING) So, what do all these effects mean for an EB-5 investor whose I-526 is still pending? Unfortunately for the folks at the early stage of the process, the pandemic-related effects on an EB-5 case leave them in the most danger with the most immigration risk. If the new commercial enterprise (NCE), whether a direct project or regional center project, is unable to survive, the likely outcome is that the I-526 will be denied by USCIS. And if investors wish to make new investments and file new petitions, they will have to go to the back of line in terms of their priority dates. M I D - S TA G E O F E B - 5 ( P R E - C O N D I T I O N A L RESIDENCY) If the I-526 petition has been approved, but conditional residence status has not yet been granted, either through adjustment of status or immigrant visa processing, the subsequent closure of the NCE is more likely to be discovered at an immigrant visa interview than by USCIS during its I-485 adjudication. In either case, closure of the business before conditional residency is granted, if discovered by the embassy/consulate or by USCIS, would be grounds for denial of residency. The “silver lining” for such an investor would be in one of the changes that took effect in November 2019: priority date retention. An investor with an approved I-526 petition, not revoked due to fraud, is able to retain the priority date for any subsequent I-526 petition. Such priority date retention will be key for Chinese and 12 EB5 INVESTORS MAGAZINE