The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
1. There is a difference between an approved regional center and an approved project.
–a regional center designation has absolutely nothing to do with whether any particular project within a regional center is a good project for EB-5 purposes.
2. Don’t just accept an I-526 or I-829 package prepared by a regional center.
–if the package prepared by the regional center raises questions or issues in the mind of the investor’s attorney, it may very well raise questions in the minds of USCIS. The issues should be resolved in advance of filing.
3. It’s all about the I-829.
–the I-526 EB-5 petition must be prepared with the I-829 condition removal application in mind.
4. Only 6 regional centers have I-829 approvals.
–this does not mean that the other regional centers have had their I-829 applications denied. A very large majority of regional centers have not been around long enough to reach the I-829 approval stage.
5. An investor is best advised not to be the first or last investor in a project.
–the first investor may find to his chagrin that the project does not attract sufficient investors to be fully funded. The last investor might discover that insufficient jobs were created, and all of the created jobs were allocated to the earlier investors.
6. It is critical for a regional center to have a more general and conservative business plan, rather than a specific, aggressive business plan.
–any change in a business plan might be considered a “material change.” The more specific the business plan, the more chance of a change. Also, a more conservative business plan may have more reachable targets.
7. The availability of a reduced $500,000 investment is not known until each investor’s I 526 petition is approved.
–USCIS regulations and interpretations are that the targeted employment area (TEA) issue is not decided until the time of investment. In the case of an investment put in escrow until the I-526 is approved, the date of investment is considered the date that the escrow is released following the approval.
8. An investor does not have to prove the lawful source of all of his or her money.
–an investor only has to prove the lawful source of $500,00 or $1,000,000, depending on the amount of the investment.
9. There is a difference between a direct job as defined by USCIS and a direct job as defined by an economist.
–USCIS defines a direct job as being a W-2 employee of the new commercial enterprise in which the investor invests. Economists define direct jobs as direct employees of the job creating enterprise or the construction company, as opposed to indirect or induced employment.
10. It is better to rely on indirect and induced jobs, rather than direct jobs.
–reliance on direct jobs could result in condition removal denial if there are less direct jobs than projected or if some of the employees can’t be proven to be U.S. citizens or permanent residents. Relying on indirect or induced jobs, such as through an economic model that relies on expenditures, may result in the regional center having more control over proving the required facts for condition removal.