A Catalyst for permanent residency in the U.S.
The much-awaited reauthorization of the EB-5 Regional Centre Program (“RCP”) will be a tipping point for immigrant investors in India. Congress reauthorized the new law on March 15, 2022, which will be in effect until September 30, 2027. Investors stand in an advantageous position, as they can look forward to adjudication on their petitions despite the 2021 lapse, have better security measures, get processing priorities, concurrently file adjustment application, obtain new safeguards and protection against irregularities by Regional Centre, and clearer and more precise job creation needs.
An Interesting Option for Indian Investors
Apropos Indian Investors; with various employment-based visas to choose from, the EB-5 RCP extends a path to obtain permanent residency through fulfilling minimum investment and job-creation requirements, without long waiting periods. Secondly, the spouse and children below 21 years of age of an investor can obtain permanent residency. Thirdly, there are no backlogs in processing for Indians therefore Indians are not subject to long waiting time.
Processing Time for Indian Investors
EB-5 visa processing time for India for I-526 Immigrant petition ranges between 24 and 36 months, approx.
For investors present in the USA, the I-485 Processing time of USA investment Green card application to Adjust Status is 7 to 29 months depending on the service center.
For investors outside of the US, the National Visa Center and Consular process takes around 6 to 12 months.
EB-5 wait time for India is Current, according to the US Department of State – Visa Bulletin, March 2022. There is no waiting period for India.
Financial Criteria for Indian Investors
The criteria to support a successful business investment are a net worth of US $1.05 million – For an individual or a married couple; or $200,000 or more in Individual Income, or $300,000 or more joint income, in each of the two previous years; and a comparable level of Future income and assets.
The Progression of Renewed RCP
The progression of new RCP in the form of ‘EB-5 Reform and Integrity Act of 2022’, will introduce significant changes, which are – Preservation of grandfathering provision, a change in investment amounts, federal Authority to designate TEA’S, change in Indirect Job Limits,visa reservations and their allocation to the following fiscal year,adjustment of status for Investors already in the U.S., protection of innocent investors, a possibility of Judicial Review, auditing of each Regional Centre.
Grandfathering –
The new RCP will protect investors who have filed their I-526 Petition (Immigrant Petition by Alien Entrepreneur) with USCIS from future regional center program expiration and investors who will file before September 30, 2026.
Investment Amounts –
The revised investment amounts stand increased from $500,000 to $800,000 in TEA’S or in infrastructure projects and from $1,000,000 to $1,050,000 in non-TEA’S. These numbers are subject to revision every five years with inflation.
DHS to designate TEA’s–
Under the new law, the Department of Homeland Security will directly review and determine the TEA’S, and the state and local authorities will not have the power anymore
Change in Indirect Job Limits –
Indirect jobs for R.C. investors can count for no more than 90 percent of the jobs, and only 75 percent of jobs can be from impacts from construction lasting less than two years (and those count only to the extent of the fraction of a two year period).
Adjustment of Status for Investors already in the U.S. –
Eligible Immigrant Investors and family may concurrently file for adjustment of Status (avoid consular visa processing that takes 4 to 6 months) with or whilst awaiting adjudication on their I-526 petition. This excuses any delay of up to 180 days in filing an adjustment application.
Protection of innocent investors–
The bill aims to protect investors who suffer termination or debarment of their Regional Centre as long as their investment arrangements are generally qualified. They can associate with replacement entities within 180 days of such adverse action without losing priority date or child status protection.
A possibility for Judicial Review–
Excluding national security and public safety denials, judicial review of adverse EB-5 denials is available after all appeals to the USCIS Administrative Appeals Office are exhausted.
Auditing each Regional Centre–
The Secretary of Homeland Security is tasked with auditing each Regional Center at least once every five years. The Secretary may terminate the designation of a Regional Center that does not consent to an audit or deliberately attempts to impede an audit.
Conclusion
An inference can be made that the EB-5 renewal, along with its preceding benefits, will strengthen the position of investors by making them more secure. In addition to this, with the implication of the grandfathering rule, the investors can stop worrying about their pending petitions that have remained at a standstill in the past.
Attribution: Naresh M. Gehi, Esq. is an Indo-US Lawyer and the Director of Gehis Immigration and International Legal Services based in Mumbai, India, and is an expert in complex Immigration strategies, M&A’s (expansion, take-overs), foreign investments, optimization of tax benefits, cross-border investment and tax issues. Currently, he is the advisor to the President of Suriname, and he has been representing eminent Indians and U.S. individuals in their international immigration & legal matters.
