The USCIS has released the latest policy manual regarding the EB-5 investment immigration program. This manual will take effect from the date of publication; however, USCIS will accept feedback until December 14, and may modify the manual based on the feedback received. The classic memorandum from May 30, 2013, which has been a staple in the EB-5 industry, will be replaced by this new manual.
In the explanatory letter on the USCIS official website, in addition to providing background information, the key points of the new manual are briefly described:
1. It clarifies the requirements for both regional centers and non-regional centers related to the I-526 application.
2. It describes the different types of regional center projects, including hypothetical projects and actual projects (including actual submitted sample investment immigration petitions).
Chapter 6G of the manual contains the latest detailed policies regarding investment immigration, which are extensive. Currently, I can only provide a brief overview:
1. The eligibility of the targeted employment area will affect the I-526 application; if the I-526 has been approved, this eligibility will not affect the I-829 application for the removal of conditions on the green card.
A geographical area that has previously qualified as a targeted employment area may lose that qualification due to changes in employment rates and population growth. If actual circumstances change, EB-5 investors cannot rely on the qualification obtained prior to the change. USCIS will determine whether the investment qualifies for a lower minimum investment amount based on the specific timing of the investment. If capital is injected, the time to determine the targeted employment area (TEA) is the time of investment; if the capital has not been injected at the time of the I-526 application submission, the time to determine the TEA is the time of the I-526 application submission.
Investors do not need to prove whether the investment area still qualifies as a targeted employment area when applying for the I-829 to remove conditions on the green card.
A little trivia: In 1993, the U.S. government specifically established the "Regional Center Pilot Program" in the EB-5 immigration regulations, relaxing the requirement to "directly create ten jobs" to "directly or indirectly create ten jobs."
2. The source of funds for a mortgage must be a fully secured loan in the applicant's name.
The types of capital invested in new enterprises have been clearly defined. For investors investing through loans, such as home equity loans, the investor must bear the primary debt responsibility for that loan and have ownership of the collateral.
If the loan is secured by the investor's personal assets, the loan amount must be less than the fair market value of those personal assets.
If using a promissory note as an investment, the debt under the note must be secured by the investor's personal assets and fully comply with relevant laws, with U.S. creditors having control over that debt.
3. Definitions of I-829 and permanent jobs
The USCIS states that the I-829 application materials must include the business plan and economic report submitted with the I-526 application. The USCIS clarifies that if the investor's funds created permanent jobs, those jobs do not need to still exist at the time of the I-829 adjudication.
4. Regarding returns on investment
Immigrant investors can receive returns on their investment in the new enterprise during the conditional green card period, even before jobs are created, as long as the returns are not part of the investor's principal investment or guaranteed returns. For investors in equity model projects, the investment agreement cannot stipulate that a portion of the principal investment can be returned after the investor obtains a conditional green card.
A little trivia: According to EB-5 visa regulations, applicants can qualify for EB-5 status based on one of the following (the investment requirement is "at risk"):
1) Invest $1 million in a non-targeted employment area in the U.S. and create 10 direct jobs;
2) Invest $500,000 in a targeted employment area recognized by the U.S. government and create 10 direct jobs;
3) Invest $500,000 in a USCIS-approved "regional center" and create 10 indirect or derived jobs.
5. Regarding job opportunities
Regarding qualified employees: They must be U.S. citizens, green card holders, or legal work permit holders, excluding investors and their spouses and children who are non-immigrants.
Therefore, there is a question on the platform: Can I open a restaurant in the U.S., and will my family working in the restaurant count as job creation? The answer is: No, not under non-immigrant status.
Regarding full-time work: At least 35 hours per week; or two or more employees have an agreement, and their work hours total at least 35 hours per week. Under certain conditions (specific requirements, specific situations, check the official website, it is quite complex), this can also count as one full-time job.