Dear India: EB-5 Best Option for U.S. Green Card

Last Updated on 16 февраля, 2017

Indians are being told the U.S. EB-5 program could become their best option for immigration to America under Donald Trump’s presidency.

The President-elect ran a staunchly anti-immigration campaign in the race for the White House, although he has tempered much of the rhetoric since his victory.

However, even if the Mexican wall and mass deportation of illegals does not happen, a crackdown on newcomers to the U.S. can still be expected.

That means students and job-seekers already in the country, or wishing to move there, are fearing for their futures because of a possible restriction on the H-1B visa.

The one U.S. visa experts do not expect to see restricted – and may even be expanded – is the EB-5 investment program.

EB-5 was just granted a further temporary extension in the U.S. until April, when Trump’s presidency will be in its infancy.

Trump’s knowledge of the real estate industry and understanding of the importance of capital inflow will mean his outright support for the program, many are predicting.

Despite Trump’s anti-immigration position, real estate industry sources firmly believe he will separate a crackdown on people in the U.S. illegally from a program that has generated billions in foreign investment.

In its current form, EB-5 offers conditional permanent residence in the U.S. in return for investment of either $500,000 in a Targeted Employment Area (TEA), or $1 million elsewhere. The investment must create 10 jobs for Americans.

US EB-5 Investment Requirements

• An EB-5 investor must invest in a new commercial enterprise.
• The investor must invest at least $1 million when investing in a general area of business or at least $500,000 when investing in a targeted employment area (“Regional Centres”).
• Within two years of admission as a Conditional Permanent Resident, the investor must create or preserve at least 10 full-time, direct or indirect jobs belonging to qualified US workers.
• See Tax Implications of Gaining Permanent Residence Through US EB-5 Visa

These thresholds could rise to $800,000 for a TEA and $1.2 million for other investments under proposed changes.

The program has faced criticism from several sources, who want it abolished.

One of three key arguments against the EB-5 is that savvy companies manipulate the rules to allow them to attract investment for major projects through the TEA class.

Major companies have funded projects worth billions in some of America’s richest areas by using a wider combined area to set unemployment rates.

Provided they can prove a certain level of unemployment, they can open themselves up to TEA investment.

Representatives of rural areas, who say they are desperate for such funding, have been overlooked as a result. Investors are more likely to opt for a safer major company investment rather than a riskier one in a smaller city or town.

To fix this, the US government is understood to be working on how it can redefine what constitutes a TEA.

The second argument is that there are not enough fraud protection controls in place, resulting in many examples where EB-5 investment dollars have been apparently misused. There are several ongoing court cases along these lines.

Fraud Cases Linked to EB-5

• The developer behind a biomedical research facility in Vermont, which benefitted from EB-5 funding, is currently being investigated for misusing the money. The project had attracted $83 million of investment from 166 foreigners, many of them Chinese, who now risk losing their money. Developer Ariel Quiros, and several of his associates, stand accused of using the funding to buy a ski resort, a luxury New York condo and to pay tax bills.
• Developer Lobsang Dargey was accused of defrauding Chinese investors out of money for a tower in Belltown. Dargey no longer has control of the project and denies any wrongdoing.
• American Life, a recipient of more than $1 billion in EB-5 investment money, was fined $1.2 million for facilitating payments to unlicensed intermediaries in the U.S.

There are calls for a body to be formed to oversee these transactions, to ensure transparency.

A third argument centres around waiting lists, particularly for Chinese investors, who make up 85 per cent of the candidates for the program, and must now wait up to eight years for their applications to be processed.