USCIS Releases New Memorandum on EB-5 Adjudications

USCIS released a memorandum on EB-5 Investor Visa adjudications recently which reviews many important points about the program and provides updates on certain procedures.

The EB-5 program will be 23 years old this year.  Congress passed it to create an incentive for wealthy foreigners to invest and create jobs in the US.  Investors contribute $1 million dollars or more and are placed in conditional permanent (Green Card) resident status for 2 years.  If, at the end of 2 years, the immigrant-investor meets the requirements of the EB-5 program, they can obtain unconditional lawful permanent resident status.

In 1993 Congress amended the law to allow for Regional Centers.  These are investment projects where immigrants can pool their money and the center is responsible for creating the jobs.

USCIS adjudicates EB-5 cases according to the preponderance of evidence standard of proof.  As opposed to the “clear and convincing” and “beyond a reasonable doubt” standards that apply in other legal matters, preponderance of evidence merely requires that the applicant show that what they claim is more likely to be so than not so.  If the applicant submits enough evidence to prove that what they claim is more likely than not or probably true, then they will satisfy the standard of proof.

There are 3 elements of the EB-5 program:

1. The immigrant invests capital (must be acquired lawfully and can include equipment, other property, and promissory notes.  The amount must be no less than $1,000,000 – or $500,000 in “Targeted Employment Areas” – and must be invested in a single commercial enterprise)
2. A new commercial enterprise (must be a commercial enterprise that was established or restructured after 1990)
3. The creation of US jobs (the investment must lead to at least 10 new US jobs)

Every step must be documented and requires a preponderance of evidence in order to be met satisfactorily.

USCIS also has forms that need to be filled out:

• Form I-526 must be filed with the evidence documenting the immigrant’s investment in a new commercial enterprise.
• If the immigrant wishes to invest in a regional center, that regional center must be approved.  Part of the approval includes filing Form I-924 together with supporting evidence

Read the entire USCIS Memo on EB-5 Adjudication by clicking the link.

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