DELAWARE IMMIGRATION LAWYER BLOG

The EB-5 Immigrant Investors Program is recently extended to September 30, 2012. The statutory requiments of the EB-5 visa are burdensom. Approximately only about 1,000 people a year have immigrated in this category — just one-tenth of the visa available.

For the regular program, the enterprise must (1) be one in which the person has invested at least $1 million (or at least $500,000 if investing in a targeted employment area), (2) benefit the U.S. economy and (3) create full-time employment for at least 10 U.S. workers.

A business can be used for employment-creation classification by more than one investor, provide that each investor has invested the required amount and the creation of 10 full-time jobs may be attributable to each investor.

The investor is required to enter the U.S. to engage in a new commercial enterprise, i.e., the investor must maintain more than a purely passive role in the new enterprise, and he or she must either be involved in the day-to-day managerial control of the commercial enterprise or manage it through policy formulation.

USCIS does not require retention of employees until a reasonalbe time after conditional visa is issued. Normally, a comprehensive business plan supporting the need for 10 employees within the next two years is acceptable.

The procedure to apply begins with submitting initial evidence with an I-526 petition. If the I-526 petition is approved, the investor becomes a conditional resident for two years. After the two years, the investor has to file an I-829 to remove the condition. It must be accompanied by evidence that the individual has invested or was in the process of investing the required captial, and the investment has created 10 full-time jobs.

Updates:
WASHINGTON–U.C. Citizenship and Immigration Services (USCIS) announced on March 12, 2009 that the Immigrant Investor Pilot Program has been extended through September 30, 2009 due to signing of the “Fiscal 2009 Omnibus Appropriations Bill,” H.R. 1105.

As a result of the extension of the Pilot Program, USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Form I-485 Applications to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analysis.

Currenly, there are 45 regional centers throughout the United States.

For more information on USCIS and its programs, visit www.uscis.gov.
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Old News On March 6, 2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) reminds customers that the applicable provisions of immigration law concerning the EB-5 Immigrant Investor Pilot Program (Pilot Program) will “sunset” or expire at midnight on March 6, 2009.

The previous five-year extension of the Pilot Program was set to expire on October 1, 2008. However, on September 30, 2008, the fiscal 2009 continuing resolution bill entitled the “Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009,” H.R. 2638, was signed into law which extended all government operations through March 6, 2009, including the EB-5 Pilot Program.

If the sunset date is not extended, affected Regional Center sponsors and certain Regional Center affiliated I-526 petitioners will not be able to benefit from indirect job creation under the sunsetting provisions as of March 7, 2009. No new Regional Center Proposals will be accepted as of March 7, 2009. All Forms I-526 received after March 6, 2009 must demonstrate that all ten jobs created will be direct, permanent, full-time (35 hours per week) jobs for qualified U.S. workers (U.S. Citizens, Lawful Permanent Residents, Refugees, Asylees, or persons granted cancellation of removal or suspension of deportation).

Unless the program is extended, USCIS will hold unadjudicated Regional Center proposals and Regional Center affiliated I-526 petitions that were received before the provisions sunset in abeyance for an indeterminate period of time pending further action by Congress. If Congress does not act to reauthorize the Pilot Program, final determinations will be made based on the evidence of “direct” job creation. The decisions will be made based either on the existing evidence of record or in response to a request for evidence, and denials will be issued for any pending Regional Center Proposals. USCIS has not made a final determination whether it may approve Regional Center affiliated adjustment of status applications after the provisions sunset and it will hold these Form I-485 applications in abeyance pending a final determination or Congressional action. If the sunset provisions are extended, adjudication of the held cases will resume promptly. USCIS will provide further guidance to the public if legislation is enacted to extend the sunsetting provisions. Forms I-829, Petition by Entrepreneur to Remove Conditions, whether affiliated with a Regional Center or not, will be unaffected by the sunset of these provisions of the Immigration and Nationality Act.

For more information on USCIS and its programs, visit www.uscis.gov.