What is the best route to take for a foreign investor to get a green card in the fastest time and with the least amount of trouble? One of the best ways is the EB-5 regional center green card route.
Priority Processing And Backlogs
When the Reform and Integrity Act was adopted in 2022, it introduced the so-called set-asides, namely EB-5 categories that will merit “priority processing.” This is not to be confused with expedited processing, which is to say an application submitted with a request that the application be approved as soon as possible since it deserves special attention, such as for example, a regional center project application designed to improve the care of Covid-19 patients in hospitals during the pandemic.
Set-asides took three forms: infrastructure projects, projects in rural areas, and projects in high-unemployment areas. While these all made sense and were welcomed by the investor immigrant community, it soon became clear that they all lacked definition and despite a U.S. Citizenship and Immigration Services (USCIS) attempt to clarify things, could not be marketed to investors without some degree of caution for lack of clarity. Priority processing is not defined in the legislation nor under any regulations. It is not clear what merits designation as an infrastructure project. And the number of visas available under each category is not easily calculated. Indeed, calculating visa availability and divining processing likelihoods and backlogs is a mystery few can speak about with confidence. Deciphering the meaning of monthly Visa Bulletins published by the State Department is an art that could start a whole new field of study.
Be that as it may, for investors seeking a way to come to the USA to live permanently and for developers who want to undertake projects with the help of such investors a few practical points can be made.
Getting To The Front Of The Line
For Chinese and Indian investors along with possibly Vietnamese, Filipino, and Mexican investors, particularly those already in the United States in some other category such as H1B or L-1 status, the RIA has brought in some possibilities that were not available previously. For one thing, with the introduction of the set-aside EB5 regional center projects, it appears that such investors can jump to the front of the line with processing by investing in a set aside project. While priority processing is not defined, it would be a cruel joke on such investors if the USCIS did not offer some advanced standing for them. At least for most of this year, it appears that such investors will be offered advanced standing in terms of approvals, otherwise, why introduce the set-asides.
What is more, for investors mentioned, as well as even for others, the great advance in EB5 processing is the introduction of concurrent filing. Under concurrent filing, an investor who is in the United States in some other status, for example, H1B visas, L-1 Visas, and probably E visas that all at least arguably have the attribute of dual intent, (that is to say the intent of coming for a fixed period of time but also the intent of staying permanently if permitted to do so by USCIS), can resort to concurrent filing. In short, any such individual can file an EB-5 I-526E petition to be approved for a green card and at the same time apply for an I-485 adjustment of status to permanent resident inside the USA and an Employment Authorization Document (EAD) as well as an Advance Parole (Travel Document) enabling them to stay in the USA while they await approval of their I-526E petition. In addition, individuals in F-1 student status or even B-1/B-2 visa status, although not those who entered on ESTA, can also file concurrently by showing a change of circumstances after arrival justifying an application for an adjustment of status to permanent residence.
Once the applicant receives the EAD in about say 3 to 4 months and the Travel Document in about 8 to 9 months they are virtually in the same position as someone who has a green card for all intents and purposes. The rest is just a matter of waiting for the paperwork to come through while making sure that the EAD and Travel Document are current. Such individuals will first be granted conditional green cards for two years and thereafter make their way to permanent residence down this path. In essence, this procedure provides all the benefits of having a green card but is short of actually getting the green card until all the paperwork is approved.
Best Approach For Those Current On The Visa Bulletin
The upshot of all this is that for investors from most countries who are current under the State Department bulletin, for example, those from Canada, Mexico, South Korea, much of South America including Brazil, most of the Middle East, and most of Africa, the best approach is to try to apply through a different status inside the USA to concurrently file and apply for an adjustment of status, EAD and Travel Document. A start-up L-1 inter-corporate transfer might be an example of taking the first step to get into the U.S. and then doing concurrent filing. For those who cannot apply in this way, the statistics indicate they will likely have to wait about just over 4 years for their conditional green card and another two years for the permanent one. However, the conditional green card for all intents and purposes is much like the permanent one except for having to show at the two year mark that the investment has remained and that ten jobs have been created. This would be the best approach for marketing the EB-5 program to foreign investors at this point. In some cases, trying the set-aside route could also be employed, particularly with Chinese and Indian applicants.
Clean Source And Path Of Funds
One of the final elements in the discussion is the matter of showing a clean source and path of funds used by the investor to make the EB-5 investment in a regional center project. Both the investment amount and the administrative fee paid as part of the investment all have to involve a clean source of funds. Money laundering and proceeds of crime and two obvious ways funds can be disallowed. In documenting a clean source of funds, each dollar of investment must be documented on each leg of the journey into the EB-5 investment. Currency exchange transactions must be properly accounted for in this regard. For example, in the case of Indians, students are exempt from currency outflow limitations to the extent of $ 250,000 U.S. per year, and Indian nationals with businesses abroad can transfer up to $ 1 million U.S. per year under an exemption from currency controls in their case.
The upshot of all this is that at least in this year, there appear to be some good opportunities for foreign investors to get U.S. green cards within a reasonable time. This will not always be the case so it would be wise for those investors considering a move to the United States to take advantage of the current possibilities while they remain open. Timing is everything and that implies that this is the year to act.
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