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How are EB-5 investment opportunities affected by state versus federal law?

I am wondering how USCIS treats EB-5 investments in some businesses that are legal at the state level, but illegal at the federal level. For example, if an EB-5 investor were to make a qualified investment in a cannabis-related business, would USCIS deny their EB-5 application? How are EB-5 investment opportunities affected by state law versus federal law?

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Immigration law is federal law, so I think that is your answer.

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    Ed Beshara

    Immigration Attorney
    Answered on

    You ask a very interesting question and an experienced EB-5 immigration attorney will be able to advise you. The following analysis may assist. There are many EB-5 hotel casino projects constructed in the United States which legally allow casinos.

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    Michael A Harris

    Immigration Attorney
    Answered on

    The issue might be more that an investor making an investment into a cannabis or marijuana project that is legal in a state may potentially become inadmissible to the United States. The federal government could potentially find that they have reason to believe that a foreigner is involved in the illegal trafficking of a controlled substance. Although the substance is legal on the state level, it is not treated the same on the federal level.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    This will highly likely not qualify.

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    John J Downey

    Immigration Attorney
    Answered on

    EB-5 is a federal law. Federal rules are applied. I am very sure your application would be denied.

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    Robert Cornish

    Securities Attorney
    Answered on

    My reading of the EB-5 statutes indicate a prohibition on funding generally illegal activities under federal law. Under federal law, cannabis is still illegal. State law does not have any bearing on this. The investment would not be "qualified."

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    From my recollection, this exact question has been brought to the Program's attention during stakeholder calls, and I believe that the businesses has to be lawful under federal law, as the Program is a federal program.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Please note that the immigration law is based on federal laws. Thus, the federal laws supersede any state laws. Also, please note that the most important issue to consider in the EB-5 process is NOT whether the investment will yield a great rate of return, but whether you could safely obtain the green card and keep it by creating the requisite number of jobs. Thus, in addition to whether USCIS will consider the cannabis-related business as a legally allowed business for EB-5 purposes, I must question whether such business will be employee intensive enough to create 10+ full-time permanent jobs that will be backed by W-2s and I-9s.

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