Fortunately, there is evidence that USCIS may be formulating a policy on this matter that would allow investors to
count jobs that have been created, even if they no longer
exist at the time of the I-829. On August 10, 2015, USCIS
issued a draft policy memo addressing this specific issue,
and suggesting that the agency would adopt this interpretation. Unfortunately, it is only a draft memo and cannot
be relied upon. This position is, however, supported by the
language of the regulations themselves, which specifically
require an investor to prove that the jobs “were created
and not that they currently exist.”
Resulting Incentives
The visa backlog and uncertainty about USCIS policy create an immigration risk that, for most investors, is far worse
than the risk of losing their investment. The risk is that after many years of waiting, relocating themselves and their
families to the U.S. and starting a life here, they may face
“If the conditional residence period
the loss of their green cards and even possible deportation
ends up being between seven
as a result of changes in business fortune over which they
and ten years, a lot can go wrong
have no control.
before the investor’s I-829 petition
is approved. Thus, there is a current
The result is that the investor market will likely continue
perception that operations jobs carry
to favor large real estate development projects that rely
an inherently greater immigration risk
exclusively, or almost exclusively, on construction jobs.
than construction jobs, and the longer
Manufacturing, farming, technology, or other operations
an investor has to wait to become
intensive projects are likely to remain very difficult to fund
a conditional resident and start the
with EB-5 money. Since many of these types of projects
two-year period, the greater the
are more likely to be in rural or distressed areas than large
operational risk becomes.”
scale construction projects, the immigration risks involved
I-526 Approval
I-829 Approval
Redemption
Bob Kraft
President, Chairman and CEO
FirstPathway Partners
Board of Directors
IIUSA
are likely to push EB-5 investments into real estate projects
in major urban areas. In fact, with the visa backlog increasing, this immigration risk may be more of a motivating factor than the price difference between investing in a TEA or
Daniel Lundy is a partner at Klasko
non-TEA project.
Immigration Law Services LLP, where
he leads the firm’s EB-5 project
Congress can certainly solve this issue by reducing the
group. Lundy primarily specializes
backlog or changing the requirements for EB-5 investors
in representing regional centers,
to more closely track the Marriage Fraud Amendments
projects and developers, while still
4
and allow an EB-5 investor who meets the I-829 require-
handling the occasional investor case.
ments within two years of I-526 approval but who has not
A frequent speaker and writer on
yet become a conditional resident, to enter as an uncondi-
EB-5 topics, he has been featured in
tional resident. Further, USCIS could alleviate some of the
publications such as The New York
immigration risk by adopting and publishing clear guid-
Times. Lundy is also a member of
ance regarding job creation, material change, and main-
AILA and the Banking Committee of
taining the investment at-risk.
IIUSA.
4: An alien who is married to a U.S. citizen for more than two years at the
time of becoming a permanent resident is granted unconditional permanent residence.
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EB5 INVESTORS MAGAZINE
www.firstpathway.com
FirstPathway Partners LLC 311 E Chicago Suite 510 Milwaukee WI 53202 414.431.0742
[email protected]
WWW.EB5INVESTORS.COM
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