Why Immigration Lawyers Need To Know About EB-5



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I've heard many reasons why immigration lawyers take the position that they don't want to know about EB-5—I don't need to know about EB-5 for my client base; EB-5 is too complicated...
United States Immigration
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I've heard many reasons why immigration lawyers take the position that they don't want to know about EB-5—I don't need to know about EB-5 for my client base; EB-5 is too complicated; EB-5 is too high risk; EB-5 raises insurance issues; EB-5 is not of interest to my clients...

Although I appreciate receiving EB-5 referrals from many very good immigration lawyers, I respectfully suggest that it is critical for immigration lawyers to have at least a working knowledge of EB-5 in order to properly advise their clients.

Examples? Sure, here are several:

  1. Your client has no apparent permanent residence options – no family, no sponsoring employer, no exceptional or extraordinary ability. No options.

    Well, maybe they do have an option– EB-5. Not an option because the client is not a millionaire? We've had countless successful EB-5 applicants who are not even close to millionaires but who relied on multiple gifts from family, employers, or business associates. Or in some cases sold property that they bought for a relatively small amount many years ago. Or maybe they inherited money. The point is that your advice to your client may be less than exhaustive if EB-5 is not even mentioned.
  2. Your client was born in China, or even worse born in India, and is stuck in a never-ending EB-2 or EB-3 quota backlog and has no basis to qualify for EB-1. If you have a solution, it would be life-changing.

    EB-5 is not only the sole option that may be available but can be a wonderful option because, at least for now, there is no quota backlog for EB-5 investors in rural areas or high unemployment area projects. Also, the EB-5 Reform and Integrity Act of 2022 added concurrent adjustment as an option for EB-5 petitions. This means that your Indian EB-2 client, who is facing a many-decades waiting list and inability to change employers or positions within an employer can all of a sudden be eligible for an employment authorization document (EAD) and a travel document, spouse employment, and potentially a green card in a year or two.
  3. You have an E-2 client who either is unlikely to be able to get an E-2 extension or no longer wants to be required to file for E-2 extensions. The client is not eligible for EB-2 or EB-3 because the client owns all or a high percentage of the business that employs them.

    EB-5 is very often the only option available for permanent residence for the E-2 client. The amount that the client invested in the E-2 business can be credited toward the minimum $800,000 (or $1,050,000) investment for EB-5. The jobs already created can be credited toward the 10 required jobs for EB-5. In some cases, the client may only need a relatively small investment and/or a relatively small number of additional employees to qualify for EB-5, obtain US permanent residence, and be on the road to naturalization.
  4. Your client is a Canadian citizen, or your client is a retiree looking to retire in the US or be able to spend more than six months per year in the US in the home the client purchased. Are there any options for advising the client?

    In many cases, there is only one. A regional center EB-5 petition. Investing in a regional center project does not require the client to live near the business, work for the business, or otherwise do anything inconsistent with the client's desire to retire, play golf, enjoy life, or all three. The client does not have to exhaust their savings because, if the choice of regional center and project is prudent, there is a good chance that the client will get their money back with some rate of return. Although traditionally that payout period was five years or longer, it may be shorter going forward since USCIS recently announced that it viewed the investment sustainment period as being two years.
  5. You have a client who wants to know the quickest way to get a green card and/or the quickest way to become a naturalized US citizen. The client is already married, so marriage to a US citizen is not an option. For a limited time only, an EB-5 investment could result in obtaining permanent residence in one year or less. However, there are two caveats. First, the investment must be in a rural area project. The RIA requires USCIS to provide "priority processing" for rural projects. We have seen many investors in rural projects obtain approval of their EB-5 petitions and of their concurrent adjustments of status in one year or less. The second caveat is that the quota for rural area projects must remain current. While it is presently current for all countries, we are expecting possible backlogs in future fiscal years.
  6. As you review your client's immigration history, you note that they had previously applied for EB-5. The case has been pending for many years. Or the EB-5 petition was denied. Or conditional residence was denied.

    It is critical to be able to knowledgeably review the EB-5 case history. Is anything that was filed likely to provide a benefit to the client in the future? Is anything that was filed likely to be problematic or even a ground of inadmissibility for the client? Did the client obtain conditional residence, which prevents adjusting status in the US?
  7. The client has a friend who told him to ask about EB-5, or he was reading about EB-5 on the internet. He asks you about EB-5 and whether it is an option that he should consider. Yes, you can say that you have to refer him to an EB-5 lawyer in order to discuss those questions. And, yes, EB-5 lawyers like myself appreciate receiving those referrals. However, I suggest that it is beneficial to have at least some basic knowledge of EB-5 in order to respond to the client's inquiry.

Yes, EB-5 is a very specialized area. Yes, it is an area where the risks are high given the dollar amount of the investments. Yes, some of the issues in EB-5 can be very complex. However, with the above as examples, it is a good idea for immigration lawyers to at least have some knowledge of EB-5 in order to properly and fully advise their clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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