Continued from page 45
For example, if the new commercial enterprise (NCE) in which
the investors invest also owns the project entity itself (i.e., “equity
structure” project), and return of capital to investors hinges on sale
of the project, could the NCE sell the project before all investors’
I-829 petitions have been adjudicated? Under current USCIS
policy, it might not be able to do so, as premature sale would sever
the nexus between the NCE and job-creating activities on which
later I-829 approvals would rely. Forcing an NCE to continue
operating a project until all investors’ I-829 petitions have been
approved could create economic hardship to the NCE. Moreover,
if the NCE were unable to sustain operations indefinitely due
to economic conditions, despite the NCE’s good faith efforts,
USCIS might consider the failure of the long-term operation as
a basis for denying later-filed I-829 petitions for Chinese investors, even though USCIS had
long since approved I-829
86%
I-526 approvals to applicants
petitions filed earlier for
from mainland China
non-Chinese investors.
This is one of many areas
in which the Chinese
EB-5 backlog may end
up harming non-Chinese
and Chinese investors
alike if the Chinese backlog
Source: Association to Invest
is not ameliorated.
in USA (IIUSA)]
10,000
6,000
3,000
0
Problems could also arise for
regional centers or developers for projects funded through a
“loan structure,” in which the NCE loans EB-5 investor capital
to a separate job-creating entity (JCE). If the JCE has finished
the project and has fully repaid the NCE, may the NCE use the
repayment proceeds to buy out investors whose I-829 petitions
have been approved and then hold the remaining funds in
the NCE pending later-filed Chinese investors’ I-829 adjudications? Unfortunately, the answer is unclear under current
USCIS policy.
Overall, regional centers and developers must be prepared to
navigate murky USCIS policies on these and other issues, adapt
to changing rules, and manage all of their investors’ expectations
along the way, as the Chinese EB-5 retrogression takes hold and
the delays continually grow. Both the American Immigration
Lawyers Association (AILA) and the Association to Invest in
the USA (IIUSA) have established respective subcommittees
to research and recommend to USCIS potential solutions that
increase predictability of the EB-5 program caused by Chinese
EB-5 retrogression, but the outcome of such efforts is extremely
difficult to predict, as is the likelihood that Congress might
increase the visa numbers through legislation.
Minimizing the impact on Chinese investors
Despite the impending retrogression, EB-5 investors from
Pricipal Investors
Family Members
China can still make their investment and file their I-526 petitions with USCIS. USCIS will continue to adjudicate the I-526
petitions as usual, because the visa cut-off dates do not impose a
delay until after the I-526 petition is approved (i.e., the cut-off
dates are imposed only on the green card applications themselves: the DS-260 application abroad or the I-485 application
at USCIS). The following are suggested strategies for immi46
gration attorneys to reduce the negative impact visa backlogs
impose on Chinese investors. (These points are described in
greater detail in Strategies for Dealing with Retrogression).
• File the I-526 as soon as possible to try to get
a position as early as possible in the queue;
• File the I-526 case while the child is still 18
years of age or less—this will help prevent the
chan ces that the child will “age out” before the
visa application can be filed and approved;
• Consider filing the case in the child’s name alone—
this will allow the child to apply for a visa when
numbers are available, regardless of their age.
However, parents of the child investor will not
qualify as derivatives to their child’s application;
• Consider making two investments: one filing for the
parents and any qualifying children, and a second
case for the child who may age out, or has aged out;
• As an interim measure, consider utilizing appropriate
nonimmigrant temporary worker visas to bring the
family to the United States in months, rather than years,
while they are waiting for their EB-5 cases to work
86%
throughI-526 approvals to applicants benefit could be the
the system. An added
from for adjustment
ability to apply mainland China of status by mail instead
of attending an immigrant visa interview at a U.S.
consulate or embassy when visa numbers are available.
USCIS has stated that investments in regional center projects
or direct investments are adjudicated equally, on the same timeline and without distinction. Historically, direct investment
cases were handled more expeditiously. Now, however, direct
investment adjudications seem to be taking longer to adjudicate
than regional center project investment cases. Once retrogression
begins, it seems that an investor’s I-526 form will be adjudicated
long before the investor will become eligible for a green card, in
any event. Regardless of the investment method, investors and
practitioners working on their behalf need to be aware of the
impacts of retrogression and strategies on how to navigate them.
10,000
6,000
3,000
0
Source: Estimate from
Charles Oppenheim of
U.S. Department of State
Pricipal Investors
EB5 INVESTORS MAGAZINE
Family Members