10月11日，负责监督移民的美国联邦机构美国公民及移民服务局（USCIS）发布了期待已久的美国投资居留计划EB-5所需的投资期限（称为 “维持期”）指南。
该指导方针指出，投资者可能在投资短短两年后收回所需的80万美元资本。尽管EB-5领域的许多人一直在等待移民局澄清维持期要求，但10月11日移民局的政策留下了许多悬而未决的问题，包括该指南本身是否是根据美国法律要求的适当程序发布的。
随着2022年3月15日《2022年EB-5改革和诚信法案》（“RIA）” 的通过，有关EB-5的官方法规已更新。与管理任何官方法规的联邦机构一样，移民局必须根据禁止的程序制定正式法规。只有在正式的规则制定程序（需要公共通知和评论程序）之后，法规才会成为管理法律的规则。
尽管EB-5计划的参与者一直在要求USCIS发布指导和法规，但尚不清楚USCIS是否具有修改现有规则的法律权力，除非遵守规则制定程序。在可以将现行法规理解为符合新法规的情况下，例如维持期，尤其如此。
造成这种混乱的原因是新法律本身的法定措辞。法律要求潜在移民的投资 “预计将持续投资不少于2年”。对EB-5法律中关于 “取消条件” 或投资者持有永久绿卡的部分进行了编辑，删除了投资者 “维持” 投资的具体措辞。但是，取消条件部分允许投资者在最初的两年有条件居留期限之外还有一年的时间来证明他们只有在保持资本投资的情况下才能创造就业机会。
美国公民及移民服务局似乎将这两项条款解释为只需要两年的积极投资。移民局进一步要求将初始投资保留在初始项目中，直到创造足够的就业机会为止。但是，新法律还规定，如果在投资者有资格偿还初始投资之前偿还了初始投资，则可以进行 “重新部署”。
如果初始投资必须满足最低维持期和创造就业机会的要求，那么要求重新部署资本是不合逻辑的。如果法律允许在更长的时间内继续投资以证明创造就业机会，那么在短短两年后提取资本的能力似乎是不合逻辑的。当全面阅读RIA时，新的USCIS指南似乎站不住脚。
两年投资时间表何时开始的问题也没有答案。移民局的指导方针指出，开始日期是 “向创造就业机会的实体提供全部投资” 的日期。这是EB-5的钱花掉的时候吗？贷款何时到期，但尚未融资？创造就业机会的实体可以存入EB-5资金而不使用吗？过桥融资如何影响这种计算？这些都是未解答的问题。
总之，EB-5项目发起人必须负责任地构建EB-5工具，EB-5投资者不应急于达成承诺在两年内返还资金的协议。目前，在EB-5资金全部转移到JCE/借款人之后，将EB-5对初始项目的投资维持至少两年似乎是最安全的。投资者应随时了解有关维持期的持续发展，因为将来法院或移民局的政策中肯定会再次出现这个问题。更重要的是，无论规则有何变化，EB-5投资者都必须彻底评估潜在投资的金融和移民风险。
要了解有关 EB-5 签证计划 和 Peachtree的EB-5产品，联系 agreene@peachtreegroup.com。
If you're working in the United States on an H-1B visa and seeking permanent residency, the EB-5 Immigrant Investor Program offers a promising path forward. This comprehensive guide walks you through the process of transitioning from an H-1B to an EB-5 visa, helping you understand your options to make an informed decision about your immigration journey.
The H-1B visa is a temporary, employer-sponsored visa that ties you to a specific company. You need to win a lottery to get one, and you'll face regular renewal requirements. Plus, your stay in the U.S. is always dependent on your employment status.
The EB-5 visa, on the other hand, offers a direct path to permanent residency. No employer sponsorship needed! With an EB-5 visa, you can:
Yes, while it's not exactly a "conversion," you can apply for an EB-5 visa while maintaining your H-1B status. Here are the key requirements for an EB-5 visa:
Acceptable funding sources for H-1B holders include:
The transition from H-1B to EB-5 status typically requires between 4 to 18 months, depending on USCIS processing times. Your immigration journey begins with selecting and investing in a qualified EB-5 project. Once you've made your investment, you'll submit your petition to USCIS. During this waiting period, maintaining your current H-1B status provides important immigration security.
The concurrent filing option presents an interesting opportunity for H-1B holders pursuing EB-5 visas. This process allows you to receive an Employment Authorization Document and advance parole privileges (travel authorization) immediately after filing your EB-5 petition. These benefits enable work authorization independent of your H-1B employer and facilitate international travel. However, immigration attorneys often advise maintainingH-1B status throughout the EB-5 process, as switching to concurrent filing status may prevent you from returning to H-1B status if needed.
The journey from H-1B to permanent residency through the EB-5 program represents a significant opportunity for foreign workers in the United States. While the $800,000 investment requirement is substantial, the benefits of permanent residency and workplace freedom make it an attractive option form any H-1B professionals. Consulting with qualified immigration attorneys helps ensure you understand all aspects of the process and make the visa choice aligned with your long-term immigration goals.
Converting from an H-1B to an EB-5 visa offers a clear path to permanent residency in the United States. By understanding the requirements, timeline, and potential challenges, you can make informed decisions about your immigration future. Remember that professional legal guidance proves invaluable throughout this complex but rewarding process.
Peachtree Group has more than 40 years’ experience in EB-5 investing. Have questions about EB-5, visit our website or fill out our contact form.
Conventional wisdom states that the EB5 visa country cap is calculated within each preference category, not across all preference categories. That would mean that no one country could have more than 7% of just EB-5 visas in any reserved visa category.
Conventional EB-5 wisdom on country caps is wrong.
In a US Federal Register announcement dated March 28, 2023, the US Government acknowledged they were calculating country caps incorrectly and outlined how country caps were to be calculated moving forward.
Since April 2023, country caps are calculated based on the total number of visas available in ALL preference categories including family-based and employment-based. Immigrants from a particular county are not subject to a country cap until applications for ALL preference categories for that country reach 7%.
Once both family-based and employment-based visa applications for a particular country reach 7%, the Department of State imposes backlogs for that particular country in each preference category based on priority dates across all categories.
Investors born outside of China and India can confidently choose between either a rural or high unemployment project.
The Visa Bulletin shows China, India, Mexico, and the Philippines have all reached the 7% cap across the family-based and employment-based visas. Since Mexico and the Philippines are not big users of the EB-5 preference, China and India are currently the only countries subject to a country cap on EB-5 unreserved visas. What this means: If you were born outside of China or India, you don't need to worry about backlogs or waiting lines whether you invest in a rural or high unemployment TEA. Unless and until another country reaches the 7% quota across all preference categories, we should not expect there to be a backlog for those countries in EB-5. If you were born in China or India, you should speak with knowledgeable EB-5 professionals to understand the potential waiting periods. However, remember that your EB-5 investment decision should be based on all of the factors that are important to you, not just the potential visa quotas.
About Peachtree Group
Peachtree Group is an investment firm driving growth with a diverse portfolio of commercial real estate assets and other ventures, with a specialty in hospitality. We’ve executed hundreds of investments since inception with a focus on real estate acquisition, development, and lending. Today, we manage billions in equity, augmented by services designed to protect, support, and grow your investment.
Peachtree Group has an EB-5 visa by investment program which allows foreign nationals the opportunity to attain permanent residency in the United States. The EB-5 visa program allows you to invest in job creating projects in the U.S. creating a path to a green card for you and your family. The minimum investment is $1,050,000. However, investment in Targeted Employment Areas reduces the minimum cost to $800,000. Learn more about the EB-5 visa by investment program.
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Form I-485, or the "Application to Register Permanent Residence" allows an EB-5 investor to adjust their investor's status from a non-immigrant to a conditional permanent resident (CPR). To take advantage of this, the EB-5 investor must already be in the United States lawfully on a non-immigrant visa such as a F-1 or H-1B. The form is generally filed after the I-526E Petition which is the first step in the EB-5 visa process. This blog post explains how the Form I485 fits into the overall EB-5 process, the essential documents needed, and how to avoid potential delays in the adjustment of status journey.
The passing of the EB-5 Reform and Integrity Act of 2022 (“RIA”) allowed EB-5 investors to file Form I-485 concurrently with Form I-526E if visas are available. This is called concurrent filing and allows investors to remain in the US while their application is processed. In short, if you are in the U.S. you can stay in the U.S. while you wait for the adjudication of your Form I-526E Petition.
Once the I-485 is approved, the investor becomes a conditional permanent resident which is good for two years. During this time, they need to fulfil the promise they made with the I-526 form to invest in a project that creates US jobs. In order to remove the conditional and become a permanent resident, the investor must file Form I-829 or the "Petition by Investor to Remove Conditions on Permanent Resident Status". Once this is granted, the investor and their eligible family members receive permanent green cards.
Investor Benefits During I-485 processing:
While the I-485 is processing, EB-5 investors may also file a Form I-765, "Application for Employment Authorization" and Form I-131, "Application for Travel Document" to receive an employment authorization and travel permit, which allows them to work in the US and travel while their applications are pending.
Peachtree Group encourages ourEB-5 investors to consult with their immigration attorney and to read through the Form I-485 form instructions as the specific evidence required with theForm I-485 application may vary depending on the immigrant category you are filing under.
Documents required to be submitted with your Form I-485 include:
As November 2024, the filing fee for Form I-485 is $1,440. The EB-5 investor pays additional filing fees if they are also filing Form I-765 and Form I-131. Be sure to check the USCIS website for the most up to date fee information. In addition, this site has information on what to do while you wait for your green card application.
By following the I 485 form instructions and submitting all the required evidence and supporting documentation at the time of the Form I-485 filing, EB-5 investors may avoid receiving a Request for Evidence (“RFE”) from USCIS.
Tips to prevent receiving an RFE include:
For more information about the I-526E Form and the EB-5 Immigrant Investor Program, consider consulting the following resources:
