EB5 History and Future
The EB-5 Immigrant Investor Visa, also known as the EB-5 green card, was created by the US Immigration Act of 1990, in response to a mandate from Congress requiring an increase in projects that stimulate the economy and create jobs. In October of 1992, Section 610 of Public Law 102-395 created the Immigrant Investor Pilot Program, which offered international entrepreneurs the opportunity to gain permanent resident status by making a $500,000 investment in a regional center.
During its early years, the terms of the EB-5 green card investor program saw much abuse. USCIS stopped the program between 1999 and 2002, filed law suits, and took action to prevent further misuse.
Through a new Congressional law and a precedent set by the 9th Circuit Court of Appeals “Chang” case, immigrants who had had obtained an EB5 green card before 1999 were exempt from adhering retroactively to the new rules. The court criticized Immigration and Naturalization Services (INS) for promising non-conditional EB5 green cards to investors, and then changing the terms to deny permanent residence after the US had already benefited from the investment. However, new EB-5 green card applicants were required to follow EB-5 guidelines that included additional regulations.
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By the summer of 2003, after a five year pause, USCIS again began accepting regional center petitions. USCIS established a branch to field these petitions, called Investor and Regional Center Unit (IRCU). IRCU oversees regional center EB5 investments, processes Requests for Evidence (RFE’s), and denies and approves petitions. The IRCU is now referred to as the USCIS Foreign Trader, Investor, and Regional Center Program (FTIRCP).
In 1998, USCIS required investors to be involved with the inception of new commercial enterprises to qualify for EB-5 green cards. However, this created many problems for immigrant EB5 hopefuls who wished to invest in a limited partnership that was already established. In 2002, USCIS changed these regulations so that EB-5 participants could invest in a new, existing commercial enterprise, a troubled business, or significantly improve an older enterprise, and still quality for an EB5 green card.
Immigration to the US through the EB-5 investor visa program is difficult without an experienced immigration lawyer. As a result, only about 1,500 people obtain EB5 green cards annually, and sometimes the numbers are much lower. For example, in 2005, only 346 people obtained EB5 green cards. Between 1992 and 2004, 130,000 immigrant investors received conditional green cards through the EB5 green card program, and only 643 were able to obtain an unconditional EB-5 green card after completing their two-year investments. A skilled immigration lawyer can play an important role in whether an EB-5 investor completes this complex program successfully.
USCIS has made many changes to the EB5 investor visa program throughout its history. For example, if you have already filed to participate in the EB-5 green card program and made your investment, you may be subject to regulations which are different from those maintained for new applicants, depending on when you filed your petitions. A skilled immigration attorney will be able to point out precedents and argue that USCIS cannot retroactively apply most of its new rules. An experienced immigration lawyer will understand the implications of the EB-5 program’s past and what it means for achieving your EB5 green card.
The number of successful EB-5 green card program participants is steadily increasing, however. USCIS announces that the Foreign Trader program, which began in 2005 and oversees EB5 regulations, has served to “strengthen and protect the integrity of the [EB5] program while promoting the intent to Congress to encourage investment and increase employment within the United States.” The new program may be increasing EB-5 participation, as in 2008, 1,360 EB5 investors obtained conditional green cards.
Additional signs of future success for the EB-5 green card program also exist in the repeated renewal of the EB-5 pilot program, which allows EB5 investment in regional centers. This repeated renewal indicates Congressional support for the EB-5 program. The pilot program is currently scheduled to expire on September 30, 2012, but will likely be extended further. If it is not, USCIS will advise those who have already submitted an application to invest in a regional center of the best course of action so that they may still obtain an EB-5 green card. The effectiveness and future of the EB5 green card program is likely to be boosted if the pilot program is made permanent.
The history of the EB-5 investor visa program is riddled with limiting adjustments. It doesn’t take too much to get your I-526 petition denied by USCIS, or to be unable to get the conditions removed from your green card as a result of completing some portion the EB-5 program incorrectly. To minimize setbacks and maximize likelihood of success, immigrant investors are advised to proceed with the help of an experienced immigration lawyer.
Impact of the EB-5 Green Card Program on the US Economy
Many immigrant investors have found the EB5 investor visa program to be a valid and convenient method for those with capital to live permanently in the US. The EB-5 program benefits investors, who receive permanent resident status, while boosting the US economy. According to a study by the GAO, as of 2003, EB5 participants invested one billion dollars in 17 states (although the majority of EB-5 participants chose California for their investments), in fields from real estate to importation and exportation, technological development, agriculture, establishments such as hotels, and manufacturing.