Any EB-5 Investor’s goal is to get the permanent green card & get the investment back. So when I do an EB5 Project evaluation, I run it through the below 3 stages of the EB-5 process and check for deficiencies. Failure in any of these steps can be catastrophic for your green card process and the investment itself.
The 3 stages of the EB-5 Process
- I-526 approval – Conditional Green card: After you make the investment, your attorney files the I-526 form with USCIS. Approval of an I-526 allows you to get the conditional green card (CGC).
- I-829 approval – Permanent Green card: After 21 months on CGC, you will file form I-829 to get the Permanent green card.
- Return of original Investment: At the end of 2 years of CGC, you are eligible to get back your original investment of $900,000 USD. The project should have the ability to pay back the investment.
There are two parts to an I-526 petition, in order for USCIS to approve the I-526 they have to examine:
- Your source of funds documentation for the $900,000 investment.
- The Eb-5 project documentation detailing the investment utilization into the project and creating the minimum 10 jobs per investor.
Source of funds documentation
USCIS scrutinizes your source of funds documentation to verify the $900,000 investment is lawfully acquired. Your investment can be from a combination of earnings, gifts and loans* (*certain terms apply). Proper documentation is of utmost importance here. Officers at USCIS Immigrant Investor Program Office (IPO) are trained to review hundreds and thousands of pages of investor I-526 submissions to verify and approve the petitions. If the IPO officer is not satisfied with a submission, He/She will issue a request for evidence (RFE) or worse, a Notice of Intent to Deny (NOID) the I-526.
For eg., if part of the EB-5 investment was from real estate asset sale proceeds. It is pertinent to submit documentary proof dating back however many years to show that you are legitimately the recipient of the sale proceeds. If a vital document is missing, a signed affidavit would be sufficient sometimes. These documents along with your personal details in form I-526 will be part of the submission. Along with these documents, you will need to submit the project documents too as detailed next.
Project Exemplar or previous I-526 approvals
As part of your I-526 adjudication, USCIS checks the project documentation to verify that the project is indeed an EB-5 compliant project. Regional centers provide detailed business plans and reports about the project. A jobs report from an Independent third party economist is required to show how many jobs per investor will be created by the project. USCIS verifies that the project is in a TEA area or a rural area as per the 2019 USCIS guidelines. If a project is not in a TEA, the investment amount is $1.8 Million instead of $900,000. Only after these checks, USCIS can approve your I-526. This part of the documentation is provided by the Regional center that is sponsoring the EB-5 project.
Why would USCIS reject an EB-5 Project’s documentation and subsequently the investor’s I-526?
There are a myriad reasons why USCIS can reject the project documentation. EB-5 investments need to conform to an ever changing set of rules created by USCIS. The EB-5 project documents are created by securities attorneys, economists, business plan writers and company attorneys to ensure that the project is as per the guidelines provided under the EB-5 regional center program. Projects have been rejected in the past for not complying with EB-5 rules and regulations resulting in losses to Investors and a chance to get the green card because of these failures by the Regional centers. It is very important to check the I-526 denial rate track record of a regional center for this purpose.
So what can you do to ensure the project you select is USCIS compliant?
An easy way to avoid your I-526 getting delayed/rejected for improper project documentation is to ensure that the EB-5 project has an Exemplar approval from USCIS. An exemplar approval is given when USCIS has already verified and approved the submitted project documents. If the project hasn’t received exemplar approval yet, another way to confirm the project’s EB-5 readiness is by verifying with the Regional Center whether any other investors in the project have received I-526 approval. If at least one investor receives the I-526 approval, this indicates that USCIS has checked the project documentation and has approved the project as a valid EB-5 project. So when you are doing a EB5 Project evaluation, make sure the project has an exemplar approval or a previously approved I-526. Of course, also check to see if there were any material changes in the project after getting that first approval or exemplar.
I-829 approval: Removal of conditions
After approval of the I-526 and completion of Adjustment of Status (AOS) or Consular processing (CP). You will receive the conditional green card (CGC) which is valid for 2 years. 90 days before the expiry of the conditional green card. You will submit the I-829 form to USCIS, which is the process to remove the conditions on your green card.
Project completion & Jobs creation
During the I-829 stage, USCIS will check whether the project has been completed or progressed significantly from the time the investor filed the I-526. USCIS will verify project financials and other documents to ensure that your EB-5 investment has been spent on the project and at least 10 jobs per investor have been created as a result of the investment. If USCIS is satisfied, you will get the I-829 approval. Here again, the onus of proving to the USCIS falls on the regional center. They have to submit documented proof that the funds have been invested and the jobs have been created as per the original project plan submitted. There should not be any major deviations in the plan submitted during the I-526 process.
It is imperative for the approval of your I-829 that the project has to be completed. We are not talking about project viability, we are only talking about project completion. It’s important to differentiate between the two here. Successful completion of the project ensures that you get your green card. So in your EB5 project evaluation, pick a project that has started construction and has all the funds required to complete construction. Also make sure that the minimum 10 jobs per investor have already been created.
Return of original Investment
At the end of the 2 years of CGC, when you file for the I-829, you are also eligible as per USCIS rules to get back your $900,000 USD investment. Notice that, it only says “eligible” not “guaranteed”. As per the EB-5 rules, no investment can be guaranteed, so the investment is always an at-risk investment. This stage is by far the hardest part to evaluate in an EB-5 investment, because spending money and creating jobs as part of that spending is an easy task. Getting the business to pay back all that investment is an entirely different ballgame.
When an investor invests $900,000, they invest in a project that hasn’t finished construction yet. The return of the investment is only after a period of 5 to 7 years. Any number of things can happen during this period that can cause an EB-5 project to not have the funds ready to pay back the investor.
Project delays and failures
- Project gets delayed because of lack of clearances and permits, resulting in construction costs increases and change in project budget affecting project viability.
- Ensure developer has all clearances and permits required for completing the project.
- Check whether the developer has adequate funds to provide for any cost overruns.
- Recession can affect financial projections and there are not enough returns for investors.
- Is the project recession proof?
- Look for projects that cater to customers insulated from an economic downturn.
- Projects that have products that are considered essential.
- Financial impropriety/fraud resulting in loss to investors.
- Check the background of the Principals, sponsors and developers of the project.
When I do EB-5 project evaluation for my clients, I go through the 200+ pages PPM to check for all the things I mentioned above. I like to speak to the project developers and visit the project site to ensure that the PPM and business plan are matching up with ground reality. Research the background of the developers to see if they have executed similar projects in the past, and do they have the financial strength to sustain a few quarters of recession. Check the regional center history to see how many projects they have sponsored till date. Have they returned any investors funds yet? Who is the economist used on the project?
If you are in just starting or in the middle of your EB5 project evaluation and would like some advice, get in touch with me, I am happy to talk to you and share my thoughts.
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