How Do The Proposed Changes On Removal Of Conditions Impact The EB-5 Program?

Changes to the Removal of Conditions could impact the EB-5 program. The current process begins after someone has an approved conditional, 2 year Green Card. They have already filed their I-526, it takes about a year and a half to get that approved and then they’ve applied either through the US Consulate through immigration if they are here legally. Both take approximately another 6 months. At the end of those 2 years, meaning that now we are roughly 4 years into the entire process, the applicant needs to file what is called a Removal of Condition, which is the I-829.

Those are currently taken 2.5 years to get approved, just to give you an idea. What they have to show at the end of that 2-year conditional green card period is that the regional center has completed the project and created the jobs. It’s really the regional center does the documentation but the applicant needs to file it. The way it works now is that you file an application and the application includes everybody, including the investor, the spouse and any children. The change would have to be each person file their own I-829 and as opposed to them all being in a single application. Most of these applications go through without an interview, which is generally not a problem.

But if there is an interview, the interview means to be in or currently is in the place where the regional center is located. This could be a problem if you are living in California and you’ve invested in a regional center in New York. The project regulation allows the flexibility of filing where the person lives, so they can file it in the western regional center and in the area where they are living. The negative aspect to this is that you have to pay for filing fees and the filing fees are about $3,650 for the applicant. Currently you only have to pay $80 for a spouse or a child. Overall, there will be more fees but also more flexibility.

Is It Advisable To Apply Now For The EB-5 Program Or Wait Until After The Extension Has Passed?

All applicants now are advised to file before the 9/30/2017 the extension is over. Applicants have been doing that for the last two years and will continue to do that between now and the end of September. Most people feel that the third time will be the charm and that Congress will finally pass legislation to raise the minimum investment amount. If you file now, you can file on a $900,000 investment as opposed to an $800,000 or a $1.8 million or whatever immigration comes up with. If anybody has applied before there is a change, whether it be immigration’s change or Congress’s change, then the rules that are in effect at that time apply unless the rules say they are retroactive.

In the past, it’s not been uncommon for rules to be retroactive. There has been no talk of anything, in the bills proposed by either USCIS or Congress, being retroactive, so the key is to file as soon as you can and get in while it’s $900,000.

What Might The EB-5 Program Look Like After September?

Assuming that the Congressional bill passes, then we’re looking at an investment amount of $800,000, and it is hard to guess what the rules will be relating to TEA. There are a number of rules that have been brought in that affect securities rules that have been proposed by the SEC that would all be good changes. These would tighten up the program for eliminating fraud and abuse. We don’t know whether the big or the small states will win relating to TEAs. Again the big states like California, New York, Illinois, Florida, want very generous TEA rules. This means projects could gerrymander census tracts to create the necessary high unemployment rate. The small states want a very restrictive view of census tracts meaning it has to be high unemployment in the census tract where you have the project. The only thing we know is that at minimum, the initial investment amount will increase to $800,000.

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