Current State Of EB-5

by Joseph Whalen

Due to all the misinformation and rhetoric connected with this visa category and associated matters, there are some specific points that I feel need to be spoken aloud at this time.

  • The EB-5 Immigrant Visa is statutory.
  • It has been around since IMMACT90 created it at INA § 203(b)(5) [8 USC § 1153(b)(5)].
  • The basic visa classification has no expiration date.
In a worst case scenario, IF the "Pilot Program" aka "Regional Centers" ceased to exist, THEN only those EB-5 investors who could demonstrate EB-5 "direct" jobs could get their conditions lifted. Due to the fact that the vast majority of EB-5 investors rely on "indirect" job creation, most I-829s would be denied and status would be terminated for the vast majority of EB-5 investors. That is highly unlikely to happen because it would be political suicide to whoever lead that fatal movement.

The "Pilot Immigration Program" created by Pub. L. 102-395, title VI, Sec. 610, Oct. 6, 1992, 106 Stat. 1874, as amended numerous times since passage, is set to expire AGAIN on September 30, 2012. The Pilot Program legislation is not an actual part of the INA but is codified alongside it as 8 USC § 1153 Note: Pilot Immigration Program. This "Pilot Program" has already been approved for yet another three-year extension by the Senate. The House leadership has indicated that this matter would be taken up quickly after the Labor Day recess. The Pilot Program has been allowed to "sunset" in the past but it was later re-authorized retroactively.

In the unlikely event of another "sunset", there is no reason to believe that it would not be re-authorized retroactively again. Legislators try to squeeze every bit of leverage out of everything as a general rule however, the EB-5 Regional Center concept has wide bipartisan support. Granted there are a few nutcases that hate everything that might allow any foreigner to enter the U.S. They are true xenophobes and are, quite thankfully, a distinct minority.

The Pilot Program legislation is the statutory home of the Regional Center. Regional Center affiliation is required in order for "indirect job creation" to count towards the statutory job creation requirements for the individual EB-5 investors. There are many Regional Centers at the present time, some will succeed and others will fail. New ones will come along. That is the simple reality. Another simple reality is that EB-5 Regional Centers are only as good as the Specific Projects that they promote.

With the forgoing in mind, the Regional Centers need to have core knowledge, skills, and abilities (KSAs) in order to select appropriate and viable projects, as well as coordinate multiple foreign and domestic investors. They must be able to time the execution of the multiple phases of the project with an eye towards meeting not only the specific project's goals but also the EB-5 program's goals. Lastly, but perhaps most importantly, the Regional Center must thoroughly plan ahead for future needs. The Regional Center must think of its own compliance reporting needs and for the tracking and collection of information, and gathering of necessary evidence for use by its EB-5 investors when they eventually seek to prove that they have met their goals and objectives and are thereby entitled to have conditions lifted from status. The lifting of conditions is an entitlement. If the conditions have been met then conditions must be lifted. I point this out for a reason and will now illustrate that reason with an EXTEREME example. The reason is that critical issues relating to any INA benefit request need to be placed, viewed and judged in their proper context.

The Form I-829 asks about any new arrests or convictions since conditional status was granted. This information is peripheral to the matter at hand in the I-829. All that the alien needs to do to get conditions lifted is meet the statutory requirements for the lifting of conditions, that is all. If that individual should also happen to be convicted of an aggravated felony, that would usually not be a legally valid reason to refuse to lift conditions . An aggravated felony would then serve as a basis for an NTA seeking to remove the unconditional LPR from the U.S. on criminal grounds of deportability (removal) INA § 237(a)(2)(A)(iii) and perhaps something else depending on the nature of the crime (controlled substance, CIMT, terrorism, espionage, etc...). However, these separate and distinct issues and contexts should not be confused with each other. It is analogous to the meaningless approval of an I-130 for certain spouses of USCs. While they might be validly married and truly in love, the U.S. will not give an Immigrant Visa to an axe murderer even if the I-130 is approved. Think about it!

That's my two-cents, for now.

About The Author

Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.