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EB-5 Law & Related U.S. Law


FAQs on EB-5 law and related immigration law

[HOT] [Q] Can you adjust and obtain CPR based on 2nd I-526 after giving up current CPR status, per Dec 11, 2009 Neufeld Memo?

For the reasons explained below, we believe there is no legal support under the current U.S. immigration law for the outlined procedure of reacquiring CPR status just given up via Form I-407 by filing I-485 adjustment of status application. What the Memo is espousing is in fact a violation of the U.S. immigration law.

[Q] Can two investors join together to make up the requisite capital investment?

[Q] Two questions. Can two individuals join and invest 100% of either $500k or $1m as single investment entity and would such investment still be valid to qualify for EB5?

Let's say it's a TEA case, and the requisite capital investment amount is $500,000. Two EB-5 investors cannot together come up with this amount; neither investor will satisfy the capital investment amount. An easy way to understand is to realize that both the capital investment amount and job-creation requirement must be met by each EB-5 investor, separately.

[Q] Can a failure to create requisite jobs within 2 years of CPR period plus reasonable period thereafter be "material change"?

[Q] Sometimes, EB-5 projects may encounter delays to projects caused by various factors that make it tough to create jobs within 2 years of CPR period. Will this be deemed a "material change" under the December 11, 2009 Neufeld guidance memo and therefore require a new, 2nd I-526 filing?

Yes, if one chooses to accept the argument that "material change" after I-526 approval must require a new, 2nd I-526 petition filing. However, USCIS has not explained why is some change "material" in respect to what I-829 requirement and why? The memo appears to not set forth a clear standard for determining what changes are indeed "material" -- to what? Or why a simple amendment to the already-approved I-526 cannot be a solution.

USCIS should not say some change to the project after I-526 approval is material without first explaining how and why such change is material to what specific requirement of I-829.

[Q] Can I invest $500,000 in a rural area for a direct, individual EB-5 case where 60% is from a bank loan?

[Q] I am planning on doing a direct, individual EB-5 case based on a lowered $500,000 investment in a rural area, i.e. TEA qualification. I am planning on investing $200,000 of my own money and coming up with the remaining $300,000 from a collateralized bank loan. Is this permissible?

It all depends on which asset is used to collateralize the loan of $300,000 from the bank. If the underlying EB-5 investment asset was used as a collateral to obtain a loan of $300,000, then forget it -- you can't do it. But if your own personal asset, such as your house, was used as a collateral to obtain additional $300,000, then that would be fine.

[Q] What is my status if I have to file new, 2nd I-526 and pursue another I-485 for CPR under Neufeld memo?

[Q] As per the new EB 5 guidelines contained in the December 11, 2009 Neufeld guidance memo governing "material change", I may need to apply for a fresh I-526, and once this gets approved I need to abandon my CPR using form 407 and reapply for adjustment of status again. My question is what would be my status after abandoing of CPR and waiting for adjustment of status the second time around? Can I live and work here legally while waiting for adjustment of status the second time around? Also I read somewhere that you cannot apply twice for adjustment of status under INA 245(a) - if so what does one do?

First, in the event you accept the validity of the Neufeld memo as the correct application of the EB-5 law AND you accept the fact that there was "material change" -- which USCIS has not explained or defined clearly -- then yes, you may file a new, second I-526 immigrant petition and file I-407 to give up the existing CPR and then submit a new I-485 to acquire a new CPR.

[HOT] [Q] For a troubled business EB-5 case, how many jobs must be saved?

[Q] Let's say a troubled business has 50 jobs, and 4 alien EB-5 investors invested and saved 40 jobs, will all of them get their permanent green cards?

Common sense would say "Of course." However, according to a recent EB-5 stakeholders meeting, USCIS orally "opined" that all of a troubled business’ jobs must be saved in order for any investor to qualify for condition removal.

[Q] Can an investor submit a second amended I-526 petition if the I-829 petition was denied or remains pending?

Answer: If the petition was denied, then it is not possible to submit the second petition. If it remains pending, you can submit withdrawal of the I-829 along with the second I-526.

Source: CSC Stakeholders Meeting on April 28, 2010 at Laguna Niguel California.

[Q] When do I have to marry my boyfriend/girlfriend to include him/her in my EB-5 case?

[Q] I’m currently on F-1 visa status, and am planning to marry my boyfriend (who is also on OPT status in the US) in the next few months. Can we file our application together with me as the principal applicant, and my boyfriend as the dependant? Do we have to get married before we submit the EB-5 application, OR can we get married after the application has been submitted, and is under review?

Under the general U.S. immigration law, you don't have to marry your boyfriend BEFORE you submit the I-526 immigrant petition in order to include him in your EB-5 case; but you do have to marry him before you obtain immigrant visas. However, practically speaking, to avoid a delay in the processing, I would just marry before submitting the I-526 immigrant petition.

[Q] Can I, a potential EB-5 investor, use salary earned while out of status, even though I reported income?

No, I guess USCIS does not want to encourage people from working in out-of-status.

[Q] If Principal Applicant refuses to submit I-829s, can dependent family members submit theirs separately?

No, not unless they are divorced, or the principal applicant is dead. This can create all kinds of sticky situations for attorneys and everyone involved.

[Q] Is a regional center program always TEA area and therefore require only $500,000 USD investment?

No, the two concepts are separate and different. An EB-5 project can be regional center based but require $1 Million USD investment. Any EB-5 project must be one of below four categories.

1. Non-regional center based and non-TEA: Only direct, full-time positions can count, and $1 Million USD investment required per each EB-5 investor.

[Q] What are legal differences between "material" and "immaterial" changes to EB-5 projects AFTER I-526 petition approval?

[Q] Dec 11, 2009 Neufeld guidance memo discusses "material" changes to EB-5 projects AFTER I-526 petition approval that make I-829 conditions removals fatal and therefore, require new, additional I-526 filings, in addition to longer CPR status. What are the legal differences between "material" and "immaterial" changes to EB-5 projects?

This is big "black hole" issue which has not been well articulated by USCIS/CSC and needs to be addressed quickly.

[Q] Does 245(k) apply to I-526 immigrant petition?

No, you can't use 245(k) to adjust in the U.S. based on approved I-526 immigrant petitions.

Only aliens in the following preference categories are eligible to take advantage of Section 245(K) if you otherwise meet the conditions mentioned above:

* Employment-Based First Preference (EB-1) – All priority workers.
* Employment-Based Second Preference (EB-2) – Professionals with advanced degrees or aliens of extraordinary ability (National Interest Waiver).
* Employment-Based Third Preference (EB-3) – Skilled workers, professionals or other workers.
* Employment-Based Fourth Preference (EB-4) – Religious workers (only).

The section also applies to spouses and children of eligible aliens.

[Q] If Principal Applicant loses CPR status for some reason, what happens to dependents' conditional PR status?

Dependents would also lose their conditional PR status also. Until the Principal Applicant obtains permanent green card status, dependents' status depends on PA's status.

[Q] Will changing 12 existing part-time positions into 10+ full-time positions count as requisite job-creation?

[Q] If an alien investor makes requisite investment into a business and turns 12 part-time positions into 12 full-time positions, will this count as more than 10 full-time jobs?

Interesting question. We think (we are not sure as CSC has not answered this one definitively) that CSC would say "no", because they would argue that these were existing part-time positions which got "upgraded" to full-time positions and therefore, they are not "new" jobs. However, one can easily argue that even though the existing part-time jobs were NOT "new", full-time jobs are indeed "new".