What are the rules in the EB-5 program for people with developmental disabilities?
My daughter is 26 years old and diagnosed with developmental disabilities. She has a mental age of a 2-year-old and cannot verbally communicate. She cannot write or sign, either. Is she eligible to apply for the EB-5 program? If she cannot apply by herself, can a legal guardian sign and attend the interviews along with her?
An incapacitated person (either due to mental disability or age of minority) may become an EB-5 investor. It is an issue of legal capacity under the applicable state law in the United States that determines whether a person is legally capable to enter a contractual obligation for EB-5 investment. If a guardian is properly appointed by the court, this should be a viable case. Please contact an attorney for a more specific evaluation of your situation.
There are no specific regulations regarding disabled investors for EB-5 purposes, except that the issue is whether the Investor has the capability/capacity to legally enter into a binding agreement/contract. This would be relevant for the signing of the Investment document, immigration petition, etc. A legal guardian may be able to sign on her behalf, but that possibility will vary by State.
This type of scenario does not usually happen often in EB-5 cases. Unfortunately, I am afraid such a petition is not likely to be approved due to several requirements and factors associated with the EB-5 which does not seem to favor the proposed petitioner. Knowing the circumstances of this matter, you should consult an immigration attorney who will look at various alternatives, including the EB-5.
I am sorry to learn of your daughter 's difficult situation. Yes, she can file an EB-5 Investor Petition on Form I-526 and, if you have gone through a Regional Center with a good program with previously approved petitions or an exemplar, there would be a high probability that the I-526 petition would be approved. If she is physically in the United States and files for Adjustment of Status, she may or may not be interviewed. If she is abroad, she will be scheduled for her final interview at the appropriate United States Consulate. At that time, given her condition, if it becomes apparent during the course of the interview that she suffers from a mental disability, she could be denied on the grounds that she is incapable of appreciating or evaluating the investment and participating in the management of the company in which she has invested. In reality, that requirement is de minimus; in fact, virtually all investors are only limited partners and really have no investment management authority whatsoever. Nevertheless, if she is subject to an interview, there is some probability, perhaps even a high probability, that she could be denied her immigrant visa.
Some level of management is permissible so it is likely a guardian could be appointed to fill this function. You are in relatively uncharted territory. However, we have been getting approvals for minors with appropriate guardians set up to handle their affairs, so I am optimistic.
I think the issue is a consent issue. Can a person with a developmental disability have the legal capacity to enter into valid contracts? It is also a state law issue in the United States. When a person invests in an EB-5, she/he is signing many legally important and binding contracts. If a person is unable to consent to the legally binding contracts, then, when they reach majority, the contract is voidable by the person. In the case of a person that is unable to consent at any time, the issue becomes more complicated. The real issue for EB-5 is whether a guardian can provide the consent and which law will determine that.