This month we have seen the VIsa Bulletin make some progress in the EB-5 category even as the adjudications of Form I-526 continue to slow down.

On April 23, 2018, Mr. Charles ("Charlie") Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, spoke at an EB-5 industry conference regarding visa waiting lines for EB-5 investors.ii He indicated that EB-5 visa applicants chargeable to mainland China and Vietnam now face visa backlogs for the foreseeable future, and that EB-5 visa backlogs for nationals of India, Brazil, South Korea, and Taiwan are expected by the summer of 2019.

President Donald J. Trump just concluded a successful bipartisan and bicameral meeting on immigration reform.  During the closed-door portion of the meeting, they reached an agreement to negotiate legislation that accomplishes critically needed reforms in four high-priority areas: border security, chain migration, the visa lottery, and the Deferred Action for Childhood Arrivals policy.

The President’s recent executive order on immigration triggered heated debate in the immigration community and throughout the nation, and left many questioning the President’s authority to issue such a sweeping ban on foreign nationals entering the US.

In support of his authority to issue the executive order, the President cites Immigration and Nationality Act (INA) 212(f), which states:

Investing in EB-5 projects has inherent risks, but many immigrant investors may not realize that they have significant power with project sponsors to demand protections from these risks. Due to the recent scandals and fraud issues related to the EB-5 program, investors should be very diligent in assessing the several program’s risks.

Introduction

The EB-5 industry continues to evolve, but there is little guidance by U.S. Citizenship and Immigration Services (USCIS) officials when it comes to RFEs (Request for Evidence) and NOIDs (Notice of Intent to Deny).

The Immigration Act of 1990 established both the EB-5 visa and the current immigrant classification preference system. The current system places limits on how many and what types of immigrants can receive green cards each year. The current law allows for the issuance of up to 140,000 employment-based immigrants for each fiscal year (October 1 to September 30). INA § 201(d)(1)(A). There are five employment-based categories; among these the EB-5 category has the least number of visas allocated.

EB-3 stands for the third preference category of employment-based U.S. permanent resident status (a.k.a. “green cards”). There are five employment categories (EB-1 to EB-5) and four family based categories.

A pivotal aspect of the EB-5 investment is to prove that the funds invested come from legitimate earnings. For some investors, like Iranians, there is an extra hurdle, for transferring the funds from Iran to the U.S. In fact, most Iranian investments are encumbered and, therefore, necessitate a diligent compliance with U.S. law.