Passing the Evidentiary Bar for Residence

by Lucy Twimasi

The EB-5 visa category, like a few other immigration visa categories, [1]grants immigration residence benefits by way of a two-step process. For a direct EB-5 application, the petitioner will complete a USCIS (United States Citizen and Immigration Services) Form I-526 (Petition by Alien Entrepreneur) and a corresponding form to adjust status or receive an immigrant visa.[2] Under the Form I-526, the petitioner must fulfill eligibility requirements to qualify for a two-year conditional permanent residence. The primary EB-5 eligibility requirements include: (1) evidence of investing in or managing a new commercial enterprise, (2) evidence of a $1 million or $500,000 investment into the enterprise, (3) evidence of the likelihood of job creation.[3] All of the listed requirements must be met to receive an I-526 approval. In practice, the most difficult requirement to satisfy during the initial application phase is the capital investment or proof of funds requirement.[4]

One reason for the difficulty in proving the requisite amount is because such capital is usually not located in one reserve.[5] Alternatively, most petitioners keep their capital funds in many different reserves and move it around on a regular basis.[6] Some investors receive their funds through gifts, inheritances, and wages, as a result; it is relatively difficult to combine all their funds as documented evidence for the purposes of USCIS review. For investors who are nationals of countries that do not adhere to strict documentation or wage reporting policies such as China, it is even more difficult.[7]

When all eligibility requirements are met and all immigration inadmissibility bars are absent or overcome, the petitioner and his derivative family members are granted a two-year conditional residence. This residence is contingent on a reapplication process whereby 90 days prior to the two-year anniversary of the granting of the conditional residence, the petitioner files to remove the conditions on his residency. To do this, the petitioner must file Form I-829 (Petition by Entrepreneur to Remove Conditions).

Unlike the Form I-526, the application to remove conditions primarily focuses on actual job creation and not merely the likelihood of job creation. This requirement is also the most difficult to prove. One reason for the difficulty is the strict nature of this requirement. The EB-5 job creation benefit is designed only for United States citizens, permanent residents, and asylees/refugees.[8] Therefore, an employee who possesses a nonimmigrant work visa does not qualify as an “employee” for I-829 purposes. In the regional center context, job creation can become complex, especially if the business methodology has changed. If a regional center projected 200 investors for 2000 jobs, a change in the business plan can significantly lessen the amount of jobs allotted to each investor to remove residency conditions.[9] If an investor is able to meet the I-829 requirements, the investor and her derivatives will be granted residence to permanently live and work in the United States,[10] one of the most coveted benefits of EB-5 investing.

[1] Such as the Form I-130/I-485 marriage application and its application to remove conditions (Form I-751).

[2] EB-5 Immigrant Investor Process, http://www.uscis.gov/working-united-states (last visited Dec 5, 2013).

[3] Id.

[4] Interview with Rachel Lew, Attorney, EB5investors.com (Dec. 4, 2013).

[5] Id.

[6] Id.

[7] Id.

[8] EB-5 Immigrant Investor PILOT Program: OLA Congressional Conference, http://www.uscis.gov/sites/default/files/USCIS/Resources (last visited Dec. 5, 2013).

[9] Supra note 4.

[10] Supra note 2.