Immigration Questions

Eb-5 Program overview

(Program, Green Card, Citizenship)

The U.S. Citizen and Immigration Services office (USCIS) is the USA government office that processes all immigration and visa documents. A great amount of immigration information can be found on their website at www.uscis.gov including additional information on the EB-5 program, forms including the 1-526 and 1-829, and much more.

It is highly recommended that an investor obtain legal services for their immigration petition submission. The narrative and documentation needed for the 1-526 petition package is extensive, and an experienced immigration attorney can provide valuable assistance with the petition, consulate interview, and visa processing.

The 1-526 petition is the initial visa application as part of the EB-5 Immigrant Investor Program. Prospective investors and their attorneys file this petition with the USCIS and include documentation demonstrating the investor’s eligibility.

1-526 petitions are most commonly rejected due to the applicant’s failure to demonstrate that investment funds were lawfully obtained.

The 1-829 petition is the final step in the EB-5 Immigrant Investor Program. Investors and their attorneys file this petition with USCIS, and provide evidence that the investor has successfully fulfilled all of the program’s requirements, particularly that investor funds resulted in the creation of at least ten jobs. Upon approval of the petition, investors and their family members receive permanent green cards.

An investor who is approved for the EB-5 immigrant visa receives a conditional green card, which must be reissued after two years and is subject to removal of conditions. Otherwise, the two cards offer the same rights and privileges.

The top federal tax rate in the US is however slightly lower than in South Africa and the US tax code is complex (over 72,000 pages long) which allows for tax optimization strategies that can reduce the burden significantly. LCR Capital Partners can put you in touch with Grant Thornton, a pre-immigration tax planning firm.

Once the 1-526 petition is filed, the approximate length of time for an investor to pass the U.S. Consulate interview and receive a conditional green card is approximately 6-14 months. It is important to note that each investor’s particular situation is different; adjudication-processing times are often unpredictable, subject to USCIS adjudication delays, and may take a longer period of time.

The purpose of the Consulate application is to ensure that the investor and family members undergo medical, police, security and immigration history checks before the conditional permanent resident visas are issued. At the interview, the Consulate Officer may address these issues and information printed on the I-526 petition, including the nature of the immigrant investment. If the investor and family are in the United States, they may apply to adjust their status at the appropriate office of the USCIS.

(For example, if children are attending school in the U.S. and the parents are not in the U.S., etc.) Family members may interview in different countries.  The country of origin or where the family has current ties is the standard interview site. However, a student attending school in the U.S. would not have to return to the country of origin; status can be adjusted in the United States at the district office of the USCIS.

Husband, wife and any unmarried children under the age of 21. It is possible for adopted children to be included in the family. Upon approval you will receive a form evidencing approval and a travel document. You should also receive a temporary green card in the mail.

A potential investor is required to file a form I-526 for Alien Entrepreneur in conjunction with the documents supporting the EB-5 Investor Visa program requirements. Upon approval of this application, the investor and immediate family (spouse and single children under 21 years of age) may apply for an Immigrant Visa at the US Consulate, or if the investor is already located in the United States, apply for an Adjustment of Status at any regional USCIS office. The entire application process may take nine to fifteen months to be fully completed.

An investor must apply to the USCIS for EB-5 Visa qualification through the submission of a number of required elements including: USCIS forms, business plans and/or geographical statistics, financial information and other supporting evidence.

Under USCIS regulations, investors must demonstrate that investment assets were gained in a lawful manner such as income from a bonafide business, salary, investments, sale of a property, inheritance, gift, loan or other lawful means.

Out-of- status nationals are no longer permitted to apply for permanent residency from within the United States. They
must first return to their country of origin and apply through the United States Embassy there. Examples of “out-of- status” individuals are students, tourists, E-2 treaty investors who no longer have valid visas because they remained in the United States after their visas expired or were revoked.

There are no requirements with respect to prior business experience or education. The only requirement is that the investor is accredited and meets certain suitability standards, with respect to income, net worth, etc. The investor also must prove unconditionally that the source of funds is legal, through the submission of proper documentation.

No, but it is strongly recommended that a non-English speaking investor should hire the services of a translator to ensure that the investor fully understands the investment terms and that the offering materials are reviewed carefully before the investor makes a decision.

  1. Short answer:  There is a difference between “continuous residence,” which refers to a requirement for naturalization, and maintaining residence in the US for green card purposes:
    1. If you are interested in obtaining U.S. Citizenship as soon as possible and become a naturalized U.S. citizen, then as you receive conditional green card and enter country, you should aim to spend at least 180 days per year in the U.S.
    2. If, on the other hand, you are interested in simply maintaining residency status and your green card, as long as you spend no more than 180 CONSECUTIVE days OUTSIDE of the U.S., you are good to go
  2. Long answer:
    1. To maintain your LPR or Conditional Residence status (i.e. green card)- you have to keep from abandoning your residence in the US. You can have a trip out of the US greater than 180 days without abandoning your residence. However, if you are out of the US for more than 365 days, then you are presumed to have abandoned your residence and you can be placed in removal (deportation) proceedings. Only a judge can take away your residence. People can be threatened to sign a form abandoning their residence, but it would be imprudent to do this. The only way around the presumption of abandonment is if you got stuck out of the US because of health problem. Or you can apply for a re-entry permit, which allows you to stay out of the US for up to two years without abandoning your residence. The reentry permit, however, does not save you from the continuous residence requirement for citizenship.
    2. For Naturalization – the individual has to be physically present in the US at least 50% of the time + 1 day for the last five years. The clock for the five years of residence starts on the date of issuance of the first green card (during the conditional residence). Continuous residence is essentially that the individual does not have any trips outside of the US greater than 180 days. USCIS counts days out of the US differently than we do. For the USCIS, if you go on a cruise and leave Friday and come back Monday at 8:00AM, then you have been gone for four days. Thus, time outside of the US includes the day you left, the days in between, and the day you arrive back in the US. If you have a trip out of the US greater than 180 days, you are presumed to have broken your “continuous residence” for naturalization purposes. You can, however, rebut this presumption by showing that you still had a house, car, job, insurance, etc. in the US during the time you were away.

By receiving your Green Card through investment (EB-5), you should have a conditional Green Card for two years. You must apply for removal of the condition within 90 days before the two years are up. Once that is approved, you have a regular unconditional Green Card. If you apply either too early or too late, you have a problem and should consult with an attorney for advice. If you do not have the condition removed, the Green Card will become invalid at the end of two years, and your permanent resident status will be terminated.

Once you receive a green card, there are only two conditions required to keep it for life. First, you must not become removable or inadmissible. The most common way of doing this is to be convicted of a serious crime. The second requirement is that you not abandon the United States as your permanent residence. As long as you are not planning to make your home somewhere else, then legally you are still a resident of the United States. Problems may arise, however, because the INS will try to judge your intention by the way you act.

  1. You can apply for a reentry permit (on form I-131) before you leave the US. You can depart before the reentry permit is approved.
  2. With such a reentry permit, you can return to the US even after one year until the reentry permit’s expiration date. Reentry permits are issued for two years. You cannot renew a reentry permit, but you can return to the US for a short time and apply for a new one. The second such reentry permit will be granted for two years ago, but subsequent ones may only be approved for one year at a time.

Once you obtain a green card, and become a legal permanent resident, you have most of the rights and obligations of U.S. citizens, except that you cannot vote and are not entitled to some public benefits. You are subject to the same tax filing requirements and entitled to the same tax rates and deductions as U.S. citizens.

One of the most important rights legal permanent residents possess is the right to obtain U.S. citizenship after five years. There are two ways to become a U.S. citizen. One is by being born in the U.S. or being born to a U.S. citizen. The other way is by naturalization. The first step in becoming a U.S. citizen through naturalization is to become a Legal Permanent Resident (LPR). Being an LPR for 5 years is one of the basic requirements for qualifying the naturalization. A second requirement is being physically present in the U.S. for 30 months during the 5 years prior to the naturalization application. Once becoming a U.S. citizen, an individual is entitled to benefits including the right to vote and hold public office.

Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. They must first return to their country of origin and apply through the United States Embassy there. Examples of “out-of-status” individuals are students, tourists, E-2 treaty investors who no longer have valid visas because they remained in the United States after their visas expired or were revoked.

The U.S. allows dual citizenship, but your original country of origin may not allow it.

Yes, exactly conditional and non-conditional Green Cards enjoy the same benefits. The only difference is that the Green Card does not become permanent until LCR creates the jobs.

Unfortunately, we cannot provide an exact timeline given the U.S. government immigration aspect of this program. To be safe, the EB-5 investor should not anticipate having their conditional green card become permanent until year 4 or so.

Yes. This is a very common option and is in fact it is one of the most popular ones.  Rarely does the husband want to leave the family business or his career but rather he wants to ensure a better future for his family.  Therefore, he will gift $500 thousand to his wife and then his wife will become investor and sponsor their children at the same time.  It is important to note that BEFORE this transaction occurs (e.g. the gift), the couple should engage LCR and immigration counsel so that this gifting process is done correctly.

Education Opportunities

Incorrect (Thankfully). There are no age or language restrictions in EB-5. Students in middle-school and high-school can apply and thus have their green card well before they apply for U.S. colleges.

This depends on specific state requirements. In most cases, the student would move to the U.S. after their junior year of high school and spend their final year in the state they are applying to and thus qualify for in-state-tuition.

Retroactivity witin the regional center program

  • LCR (and most leading EB-5 industry participants) are highly confident that existing I-526 applications will be processed under the existing rules and regulations, as there is no precedent in the EB-5 program or any USCIS program, for that matter, for retroactive application of change in rules.

 

  • Therefore, it is extremely unlikely any EB-5 re-authorization law will include retroactivity language. This would unnecessarily penalize existing EB-5 investors, who abided by the laws and regulations in effect at the time, and invested at the $500 thousand level. Any retroactive application of laws would immediately trigger massive lawsuits against the U.S. government and destroy investor confidence in the program (and the U.S. government). For these reasons, the majority of Republicans and Democrats universally are against any retroactivity and the general consensus across the EB-5 industry (Regional Centers, developers, immigration and securities attorneys etc.) is that it will not appear in the final re- authorization bill.

 

  • Experienced EB-5 securities attorneys who are drafting project documentation for new EB-5 offerings, such as LCRs Surf Club Four Seasons project, however, are obligated to disclose any and all potential risks, including this one, which is why we’ve included the language below (See Page 9 of PPM – Minimum Commitment clause). This is similar language to that being used by every other legitimate Regional Center currently in the market.

 

  • If you need discuss further, please contact LCR for further information