Immigration and firm news

EB-5 Adjudications Data Released

USCIS has released updated adjudications data for the EB-5 investor entrepreneur program.  This is the “$500k or million dollar club” investor visa for permanent residence.  The EB-5 program is modeled after marriage based immigration that requires a two-step process to permanent residence. The first application is called the Immigrant Petition for Alien Entrepreneur, filed on Form I-526.  If approved, the applicant receives a conditional residence card valid for two years. Within the 90-day period before the two years expire, the applicant investor must file a “Petition to Remove Conditions” on Form I-829.  If that is approved, the applicant receives lawful permanent residence and a 10-year green card.

The statistics released by USCIS show the following:

  • From 2008 to 2014, the number of I-526 applications filed have grown from about 1200 per year to 10,923 in FY 2014. (Only 10,000 EB-5 visas are available per year).  Of those filed, about 45-70% have been approved, about 10-11% have been denied and the balance have been pending during the reporting period. Approval rates have varied year to year, however.
  • For the first quarter of FY2015 that began October 1, 2014, 2941 I-526 applications were filed, 1652 were approved, 133 were denied and a whopping 13,526 were pending! (The denial figures include denials, terminations and and withdrawn applications.)
  • For I-829s, the statistics show that since 2008, filings have grown from 391 to 2516 in FY 2014. (In 2011, there was a high number of filings – 2345).  From FY 2008-2014, approvals averaged 40-70% and have increased over time; denials were very low (less than 10 percent).  For the first quarter of FY2015 beginning October 1, 2014, there were  810 I-829s filed, and 69 were approved. There are no denials reported for the period, but there are also 3080 cases pending. Of course, many of the approved I-526 petitions approved in the last year or more are not yet ready to file I-829s.

What happened to all the I-526 cases that were approved? Where are the I-829s? First of all, there is a chronic backlog for both application types. (See the very bottom of the page here – IPO processing times.) I-526 applications are taking 14 months; and I-829s are taking 11.4 months as of this writing. (And applications for approval of new regional centers – Form I-924-are taking 11 months.) Because of the backlogs, the statistics above are actually rather murky because those cases filed in one year are not necessarily being decided in the same year.  Also, there was litigation in the first decade of the program, and as a result, a number of cases were held in abeyance for several years, and some may still be on hold.  In addition, some investment vehicles did not survive the recession, or for other reasons may no longer be viable for I-829 purposes. A number of regional center vehicles have failed, been terminated or are under investigation.

Note that the statistics released by USCIS in the above formats (see the links above), reflect approvals and denials for both individual entrepreneurs and regional centers. Therefore, if a prospective investor wants to know the approval rate of an individual regional center, the investor should contact the regional center directly and ask for the results. Regional centers have to file annual reports with USCIS. Ask for a copy of the report filed on Form I-924A. Also, check to see if the regional center has been terminated. (As of this writing, 16 regional centers have been terminated.)

The EB-5 program is obviously in greater demand now than it used to be, especially for Chinese investors, due to the growth in accumulation of wealth in China.  However, the demand can affect the quota for Chinese nationals and others.  Meanwhile, processing times of over a year for both parts of the process make the EB-5 program a much longer commitment than the intended two-year investment commitment of conditional residence.  That  issue along with problems with proof of tracing legality of funds, adequate proof of job creation, US taxation and other obstacles can make the program daunting. Bureaucratic requirements of the program make it primarily an immigration incentive vehicle rather than a money making vehicle for most investors.  Therefore, prospective investors should get adequate advice from qualified immigration, tax and business attorneys and do their due diligence before committing money to any individual or regional center enterprise.