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
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EB5 INVESTORS MAGAZINE