HOW NEW COMMUNIST AND TOTALITARIAN PARTY“ MEMBERSHIP” RULES COULD RESHAPE EB-5 RISK ANALYSIS— BY ALEX GEORGE SANTHANAM AND HALSTON CHAVEZ
• Military history breakdown. Questions should include branch, rank, duties, whether the individual received espionage training beyond that of a typical service member, and whether the role involved political education or enforcement.
• Affiliated organization analysis. Document the funding sources and governance structures of NGOs, academic institutions, and trade associations linked to the investor and / or the investor’ s EB-5 funds.
• Travel document review. Request copies of any diplomatic or official passports issued, even if not currently valid.
• Political activity log. Capture any participation in rallies, campaigns, or public endorsements of party policies, both in person and online.
This level of inquiry is critical not only for FAM admissibility assessments, but also for evaluating whether the source of EB-5 capital is free from prohibited government ties. Where uncertainty exists, practitioners should document the analysis and communicate the risks clearly, allowing the investor to make an informed decision.
OTHER RISK MITIGATION STRATEGIES FOR PRACTITIONERS In this environment, best practices include:
• Front-loading affiliation screening. Identify potential inadmissibility or RIA risks before filing the I-526E to avoid sunk costs and, should they choose to proceed, prepare applicants for the intense level of detail and documentation the EB-5 process requires.
• Discuss source of funds strategies. Discuss the various sources of funds options an investor may have and the pros and cons of each.
• Documenting privatization timelines. If an employer transitioned from government to private ownership, obtain proof of the change and date it clearly.
· Exploring waiver eligibility. Exceptions exist for involuntary membership, limited participation, or early termination, but evidence must be gathered early and meet a rigorous standard.
• Engage local counsel for documentation. In some countries, obtaining credible proof of privatization or separation from the state requires in-country expertise.
• Prepare for consular unpredictability. Even if USCIS approves the I-526E petition, anticipate additional document requests or interviews at the green card or immigrant visa stage.
• Communicating risks in writing. Where uncertainty remains, practitioners should memorialize their analysis so the investor understands the potential consequences. Practitioners should keep clear records of their communications with the investor in case questions or misunderstandings arise in the future.
WHY EARLY SCREENING MATTERS MORE THAN EVER The consequences of failing to identify these risks at the outset are severe. Investors could spend years and thousands of dollars on the EB-5 VISA program only to be refused at the immigrant visa stage, which harms both the investor and the practitioner’ s reputation. Early, thorough screening not only protects clients’ interests but also safeguards the credibility of EB-5 projects.
In high-risk markets, agents and intermediaries should be trained to identify potential affiliation and government capital issues before referring clients. This is especially critical in countries with mandatory military or civil service, where affiliation is common and often unavoidable.
LEGAL COUNSEL MUST BUILD STRONGER EVIDENCE FOR EB-5 CLIENTS When the updated FAM rules on Communist affiliation meet the RIA’ s foreign government capital restrictions, it makes the compliance environment more complex for EB-5 practitioners. By asking more in-depth questions, thoroughly tracking the source of funds, and proactively evaluating waiver eligibility, attorneys can
This uncertainty highlights a potential twofold challenge: the very facts that raise concerns about political affiliation under the FAM could simultaneously complicate the investor’ s lawful source of funds build a stronger evidence record and protect their clients from unnecessary complications and long-term immigration issues.
ALEX GEORGE S.
Alexandra“ Alex” George Santhanam is an Associate Attorney at The Galati Law Firm, specializing in mandamus / unreasonable delay, EB-5, and FOIA litigation. She has significant experience with employmentbased, family-based, and naturalization applications and has appeared in both federal and immigration courts.
HALSTON CHAVEZ
Halston Chavez works as an immigration attorney at The Galati Law Firm, focusing on EB-5 investor visas, family reunification, and litigation related to unreasonable delays. He is licensed to practice in North Carolina and is a member of the American Immigration Lawyers Association( AILA).
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1 This article will focus primarily on Communist Party affiliation, as this has the most impact on high-demand markets. However, the FAM also expands the definition of totalitarian party affiliation. EB-5 professionals should exercise the same level of due diligence when evaluating investors from countries with presently or formerly totalitarian governments.
2 https:// fam. state. gov / fam / 09FAM / 09FAM030205. html 3 EB-5 Reform and Integrity Act of 2022, Div. BB, § 104( a), Pub. L. No. 117-103, 136 Stat. 49( 2022)(“ Not later than 270 days after the date of the enactment of the EB – 5 Reform and Integrity Act of 2021, the Secretary shall issue regulations implementing subparagraphs( I) and( II)”); 8 U. S. C. § 1153( b)( 5)( D)( ii)( III)(“ Not later than 270 days after March 15, 2022, the Secretary shall issue regulations implementing subparagraphs( I) and( II)”).