Eb 5 visa program started in the 1990’s by the US Congress with a motive to bring in capital and incentivise job creation in the country. With the two objective EB 5 visa program was introduced.
The EB 5 visa is referred to as an investor visa which requires an investor to make an investment of $900,000 – $1.8 million. People who qualify for it are permitted to bring their spouses and unmarried children (under the age of 21) with them to the US.
In 1992, Congress created the Regional Center Program, which made it easier to invest in a qualifying US venture by investing between $500,000 and $1 million. Investor visas are set apart by this program for investors who invest in centres. These centers, ensure the project development are accepted by the USCIS and automatically ensures an investment complies with all all the requirements for your EB 5 program.
On 23 July, 2019, USCIS overhauled the EB 5 visa program investment by proposing to increase the minimum investment amount for Eb 5 investor visa program. Such a change in the Eb 5 investor program hasn’t happened in three decades. November 21, 2019, saw the first change in the Eb 5 investor visa program, the minimum investment amount increased from $500,000 and $1 million to $900,000 and $1.8 million, respectively.
Drawing a comparison between the ones that are reformed as well as the old regulations will give us a clear picture of this remodeling:
- Accrual of the investment amount for Targeted Employment Areas (TEAs) from US$500,000 into US$900,000 plus the processing overhead cost, filing and legal fees
- Accrual of the investment amount in other areas (Non-TEA) of the nation in US$1 million into US$1.8 million plus the processing overhead cost, filing and legal fees
- The candidates can retain the priority date of an immigrant petition approved for classification as an investor unlike before
- The change in authority for TEA designations from Regional Centers to Department of Homeland Security (DHS) Changes in the Regional Center Program:
Now in January, 2020, USCIS declared that it would be creating a substantial change to the processing of I-526 Petitions, commonly known as EB-5 Petitions. USCIS previously needed a policy to adjudicate EB-5 Petitions on a”first-in, first-out” foundation. This meant that USCIS was going to review and decide EB-5 Petitions based only on the date. Now, USCIS announced that it might change this policy and pick EB-5 Petitions employing the”visa accessibility” approach.
“Visa Availability” approach
The”visa accessibility” approach outlined by USCIS would prioritize EB-5 Petitions for adjudication based on whether or not a visa number is available to the investor. This ties the timing of the conclusion on the EB-5 petition to whether the investor is subject to visa retrogression. As a reminder, the employment-based fifth preference group”EB-5″ is allotted approximately 10,000 immigrant visas annually. This quota includes spouses, as well as applicants and dependent children under 21 years old. Nobody country can exceed more than seven percent of their visas available in every fiscal year.
The State Department must set a wait line that determines the order in which visas are issued when the quota is exhausted in a fiscal year. This wait is referred to as”retrogression.” The investor’s place in line is decided by his or her “priority date,” or the date the EB-5 Petition was filed and received from USCIS. This date is found on the I-526 Petition receipt notice. Investors as well as their dependent family members can’t move forward to get the two-year conditional green card before his or her priority date becomes”current.” Monthly, the State Department supports visa retrogression and “present” priority dates on their Visa Bulletin publication. After a priority date becomes “current” on the Visa Bulletin, the investor and his or her dependents can get the two-year conditional green card.
Investors from India, China and Vietnam
Presently, investors who were born in Vietnam, Southern China, and India are subject to visa retrogression as a result of higher need for EB-5 visas for family members and investors . Investors with a partner born in a nation that is not mainland China, Vietnam, or India are not subject to retrogression, as they can be”cross-chargeable” into the partner’s country of birth for this purpose.
As a result of this change in policy at USCIS, investors who were born in southern China, Vietnam, and India who are subject to the visa retrogression with settlement dates that aren’t yet “present” on the Visa Bulletin by Department of State will expect to wait longer for their EB-5 petition to be accepted by USCIS.
Investors who have been born in Southern China, Vietnam, and India, but who have a “current” priority date on the Visa Bulletin also should continue to be adjudicated to a first-in, first-out foundation. Delayed adjudications may be received by those investors currently subject to visa retrogression .
Investors not subject to retrogression
Investors that were born in the rest of the countries and that are not subject to visa retrogression should continue to have their EB-5 petitions accepted on a first-in, first-out foundation using the receipt date on the I-526 receipt notice issued by USCIS. The current processing time for EB-5 petitions each USCIS website is 32.5-49.5 weeks. We will not know if the processing time for EB-5 petitions will be decreased from this wait period until the new policy is implemented.
Impact on investor’s dependent children
Investors who were born in southern China, Vietnam, and India who are subject to the visa retrogression frequently worry about their dependent children reaching the age of 21 and”aging out” before they can obtain their permanent residency. This new USCIS policy may serve to protect some kids from”aging out,” and allow them to keep on processing with their investor parents.
The Child Status Protection Act (CSPA) was enacted in order to protect children of petitioners against extended request processing times. The determination of whether the security of CSPA applies is created when the petition priority date becomes current. At that time, the amount of days is deducted from the child’s biological age. Assuming the subsequent amount is below 21 years of age (even if it’s days shy), the CSPA protections apply, and the kid has just one year to seek to acquire his or her immigrant visa.
For all those petitions subject to retrogression and that stay pending at USCIS today, the I-526 petitions probably will be pending for longer days. When the visa number becomes current, those days could be subtracted from the kid’s age later. While it may not protect a kid from”aging out” in every case, this likely will enhance the chances for many kids to continue in the immigration procedure with their parents. Formerly, USCIS would not hold EB-5 petitions in abeyance to help safeguard children from”aging out.”
Implementation of the change
The visa accessibility approach will apply to petitions pending as of the effective date of this change. USCIS will implement the visa accessibility approach . USCIS will hold a public engagement on March 13, 2020, from 11:00 a.m. to 12:00 p.m. EST, to provide information and answer questions from the public about these operational adjustments to the management of Form I-526 petition inventory.
Changes in other visa programs
There has been changes in the US scenario be it EB 5, H1B, L1 etc. the number of visa allocation has decreased over the years.
The US Citizen and Immigration Services (USCIS) has declared fewer intra company transfer visas (L1) in its fiscal year 2019, with analysts attributing it largely to improper documentation . The amount of authorized L-1A and L-1B visas ranged at 71.9percent in FY19, compared to 77.8percent in FY18, according to the newest statistics by the visa approving authority whose fiscal year runs from October to September of the next calendar year.
That the L-1 visa is frequently employed by tech companies to move present workers to the USA from different places.
Meanwhile, the acceptance rates for its coveted H-1B visas were similar to last year, at 84.8percent against 84.5percent in FY18, as stated by the USCIS data.
That is still a substantial fall from previous years, as acceptance rates for H1-B visas were as large as 95 percent in 2015. Firms are the beneficiaries of their H-1B visa, accounting for over two-thirds of visas issued. In the previous two decades, there has been increased scrutiny of those visa programs, leading to an increased variety of requests for evidence (RFE) & visa rejections.
Despite supplying additional records, the amount of visas which were accepted is lower than previously. In FY19, 65.4% visas were approved with RFE, against 83.2percent in 2015. As the largest users of their H-1B visa tech firms such as Amazon have emerged in the past couple of decades, overtaking IT services companies. H-1B visas to the top rated technology firms’ rejection rates so were in the first half of the year, and continue to grow. Experts feature this to US President Donald Trump’s ‘Purchase American Hire American’ policy.
Comparing Eb 5 with other popular visa programs
The United States of America being the biggest economy, the largest consumer market in the world and home to the highest amount of Big Business Corporations – is the preferred destination for quite a substantial percentage of the world’s greatest talent wanting to migrate to build their long-term careers.
For students and their parents, getting an education from a recognised college in the US offers them access to global opportunities they wouldn’t have obtained otherwise.
Students and practitioners need to get a US visa to study there
To make the term American Dream a reality, it is crucial for aspiring students to adopt an immigration route that will offer them a future in the United States. Therefore, a fairly large number of aspiring immigrants have turned to visa programmes such as the EB-5 visa investment programme.
Traditionally, both students and professionals looking for a future in the united states have been perusing the H1B and F1 routes to migrate to the US.
Nonetheless, under the current administration, there has been an extremely large evaluation of immigrant petitions from the USCIS and its related departments, in recent times. The H-4 and H1-B visas are the worst hit by the strict interpretation and implementation of regulations.
Reality of the H1B programme
The H1B programme is a visa which enables immigrants to get employment and live in the usa. The visa is issued for three years which can be extended for up to six years.
The H1B visa has been the visa programme that is most widely accessed by Indians, particularly in the IT sector.
With 85000 visas available within this class vis-à-vis with this monumental number of applications to make up for H1B, only one in three applications statistically stand a chance to win the lottery and the gap is increasing significantly.
The H1B visa is a sponsorship dependent visa wherein the applicant’s employer must back the immigrant’s H1B visa application making it tougher for foreign nationals to secure jobs.
Should an employer agree to host the visa, it places the foreign national in an unfavourable situation since they might be in a disadvantage to completely negotiate terms of the employment. There are chances that perhaps get hired at a lesser pay than what their American peers with the identical qualification would get.
Even if an immigrant is part of the blessed few who get their H1B visa, they still need to wait for 15-18 years to procure a US Green Card which is dependent on securing E2 or E3 visa process.
Why students go for EB 5 Investor Program
Most student applicants prefer using the Regional Center course as it frees them of the duty of addressing the day to day logistics of their investment, while reaping all of the advantages and maybe getting back their main investment sum post a stipulated period of time.
Evaluating benefits for students: H1B vs EB5
There are a few objectives that students look at when they move to the US which includes analysing future prospects.
The chart below provides a comparison between the F1 to Green Card via H1B route and the Eb 5 Investor Visa. This gives us a clear picture to which route is beneficial from the perspective of an individual.
| Criteria | F1 visa followed by H1B | EB-5 visa Program |
| Timeline for Acquiring a Green Card | 30+ Years for Indians | 18-20 months |
| Acceptance Rates | Fierce competition, lesser possibility of acceptance to Ivy League Colleges | Higher chances of acceptance to Ivy League Schools, improvements can range from 20% to 40% |
| Tuition Fee | Limited Scholarship Opportunities and comparatively higher tuition fees | Can save up to 50% in tuition fees, access to unlimited merit-based scholarships |
| Certainty of approval | Requires sponsorship from a US based employer; approvals based on lottery system | 96% I-526 approval rates; easy to qualify |
| Professional Opportunities | Restricted opportunities, can’t set-up business | Unlimited opportunities and ease of movement |
| Remuneration | Unable to indulge in salary negotiation, lower pay | Can negotiate on terms of employment and get higher remuneration |
