i. Consular Processing
Investors and derivative family members residing abroad
need to file DS-230 or DS-260 with the National Visa Center
(NVC) in order to obtain EB-5 visas for admission to the
United States. After applications are reviewed by the NVC,
they are sent to the U.S. Consulate where the applicants reside
to process and schedule an interview. For Chinese investors,
their cases are sent to the U.S. Consulate in Guangzhou.
Oftentimes, cases are lost between NVC and the Consulate.
Some cases take over a year before investors receive an appointment at the Guangzhou Consulate.
Due to the current retrogression for Mainland China,
investors with approved petitions must review the visa bulletin
to determine if their priority date is current before they can file
their DS-230 or DS-260 with the NVC.
Beginning October 2015, the visa bulletin that determines
availability of immigrant numbers divided the priority dates for
EB visas into two bulletins. Bulletin A publishes “Application
Final Action Dates for Employment-Based Preference Cases,”
which determines when applicants can obtain visas for admission into the United States. Bulletin B publishes the “Dates
for Filing of Employment-Based Visa Applications,” which
determines when applicants can file their visa applications with
the NVC for consular processing.
For Mainland China investors, which make up 85 percent of
all EB-5 investors, the Final Action Date has been approximately two years after the investors’ date of initial I-526 filing. As
such, even if they were fortunate to receive an I-526 approval
in less than 14 months, they must wait for approximately two
years before they can obtain EB-5 visas for admission into the
United States.
For the first time in the history of EB-5, the Final Action
Date for the January 2016 visa bulletin is “Unavailable” for all
regional center applicants despite their country of birth. This
means that all regional center applicants who have not received
their EB-5 visas by the end of December 31, 2015 cannot do
so until the visa bulletin publishes that visas are available again.
This is a good example of the type of uncertainty and delays
faced by EB-5 investors, which make it difficult for investors
and derivative family members to plan ahead.
Other visa categories such as EB-1 do not have retrogression
for any countries. As such, EB-5 is clearly not the fastest way
to obtain a green card. In fact, up to this point, investors
would have only a conditional permanent resident status upon
admission to the United States. For other employment-based
visa categories, applicants would receive full green card status
upon admission.
ii. Adjustment of Status
Investors and derivative family members holding valid nonimmigrant status in the United States can submit Form I-485
to apply for adjustment of status to conditional permanent
resident status within the United States.
Adjustment of status is usually a much faster process than
consular processing for all visa categories. However, since
October 2015, applicants need to check the USCIS website to
determine whether their eligibility to apply for adjustment of
status is based on the Final Action Date (Visa Bulletin A) or
Filing Date (Visa Bulletin B). With retrogression for Mainland
China, EB-5 investors and derivative family members are again
subject to the uncertainty of when they can submit their I-485
applications to adjust status.
c. Stage Three: Form I-829, Petition by Entrepreneur
to Remove Conditions
Upon entry into the United States with an EB-5 immigrant
visa or upon approval of the I-485 application, the EB-5 investor and derivative family members will be granted conditional
permanent residence for two years. Within 90 days before the
expiration of their conditional permanent resident status, the
investors must file for removal of conditions (I-829) by proving
that their investment has created at least 10 qualified jobs for
U.S. workers.
Current published average processing time for I-829
adjudication is approximately 15 months. However, like the
processing time for I-526, actual I-829 processing time may
take much longer than the published time. One group of cases
has been pending for over 10 years with no resolution in sight.
d. Short Answer:
A brief overview of the three main stages of the EB-5 process
can reveal that EB-5 is not a “shorter-cut” to a green card than
any other EB visa category. In fact, EB-5 investors experience
longer delays in processing times and an extra stage (I-829)
before they can obtain permanent residency or full green card.
II. Is it Easy to Get an EB-5 Green Card? What
Level of Scrutiny Is Involved at Each Stage?
a. Stage One: Form I-526, Petition by Alien
Entrepreneur
The I-526 petition is comprised of two main components:
project do cuments and investor’s documents, which include
proof of lawful source of funds documents. While the law only
requires a preponderance of evidence or “more likely true than
not” standard, USCIS adjudicators often use a much higher
level of scrutiny when reviewing the I-526 petitions. As such,
both components require a great deal of attention and preparation to ensure that they will pass the scrutiny of the adjudicator.
i. The Project
Before a project’s documents are submitted to USCIS for
review, they usually would have already gone through due
diligence review: by the sponsoring regional center’s representatives, immigration attorneys who ensure their compliance with
EB-5 law, securities attorneys who ensure their compliance with
Securities Law, business attorneys and economists who ensure
that the projections in the documents are accurate and reasonable,
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