IS USCIS GETTING TOUGH ON EB-5s?

Recent statistics released by the US Citizenship & Immigration Services for the first two quarters of the fiscal year 2014 (from October 1, 2013 to March 2014) shows little hope for EB-5 applicants. Many EB-5 investors were denied their applications for Green Card.

Let’s compare fiscal year 2013 with 3,699 approved and 943 denied applications to the first two quarters of 2014, with 2882 approved petitions and 1068 denials.  The rate of denials increased by more than 50% from 1 in 4 applications denied in 2013 to 1 in 2.6 applications denied in 2014.

The prospects of approval of I-829 Petitions by Entrepreneurs to Remove Conditions (i.e., the extension of the temporary 2 year green card) appear to be even gloomier. To demonstrate this, for the entire year of 2013 rejection rate was at 5% level with 844 approvals and 44 denials. Unfortunately, these applications were five (5) times more likely to be denied in 2014: only 456 petitions were approved and 118 petitions were denied (4:1 or 25% denial rate).

This means that having invested between $500,000 and $1,000,000, relocated to the United States, likely having also made additional investment in real estate, etc., foreign entrepreneur, would still face a very real possibility of having to leave the US.  Unwinding EB-5 investment itself is also a significant hurdle in case of denial of I-829 Petition to Remove Conditions.

Due to the fact that the number of approved applications for EB-5 program has gone down dramatically, potential investors often ask: “What other options may be there for potential foreign investors? What is the best way to obtain a Green Card?” In my opinion, given the current regulatory environment and the way USCIS adjudicates EB-5 petitions, it is worth looking into EB-1 category for managers of foreign companies that are represented in the United States via a subsidiary or an affiliate.

Unlike Green Cards issued under the EB-5 program, Green Cards issued to managers or executives in the EB-1 category are permanent (no removal of conditions is required).  The EB-1 option may work for those who are being transferred to existing US entities, as well as for those who are coming to the United States to launch operations of a newly created subsidiary or an affiliate after the first year of operations is complete.  In the case of a new company, initial relocation is possible with L-1A non-immigrant visa. The requirements for L-1A visas are similar to many of the requirements for the EB-1 green card category.  As a temporary visa, L-1A allows time to start the operations of the newly created US entity, search for a suitable real estate options, and so on.