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Premium Processing for EB-5 Investors Proposed

The current immigrant visa backlog for the family-based preference categories and the employment-based second and third categories currently varies from over three years to two decades, depending on the visa category and the applicant’s country of birth.

In stark contrast to these long waiting times, the investor visa (EB-5) only takes about a year to obtain if all eligibility requirements are met, making it the fastest route to a U.S. green card.

Even with the relatively short processing times, the USCIS is still finding ways to enhance the EB-5 program in order to realize its job-creation potential. These changes are meant to attract foreign entrepreneurs and businesses to create jobs in the United States, in line with the government’s goal of driving U.S. innovation and stimulating economic growth.

These measures should have been taken a long time ago. Studies show that immigrants create jobs. They are 30% more likely to start a business than non-immigrants and make up 16.7% of all new business owners in the U.S. Top companies such as Intel, Google, Yahoo and eBay were once founded by immigrants.

Recently the USCIS proposed improvements in the EB-5 program’s intake and review process in Regional Center applications.

A Regional Center is a public or private entity that promotes economic growth, regional productivity, job creation and domestic capital investment. An application for designation as Regional Center is made on Form I-924, while the petition from the investor is made on Form I-526.

The USCIS proposes to accelerate the processing of “actual” applications for shovel-ready business projects. “Actual” I-924 applications are job-creating projects that are fully developed, ready to be implemented, and for which I-526 petitions could already be filed.

Processing times for these “actual” I-924 applications are proposed to be accelerated from 4 months to 2 months. The targeted processing time for I-526 petitions associated with an approved “actual” application would also be accelerated from 5 months to 2 months. With premium processing, which the USCIS plans to make available in these cases, an I-924 application and an I-526 petition could be approved in as short as 15 days.

The USCIS also proposes to create specialized intake teams for I-924 applications which are often complex and require sophisticated economic analysis. Team members would include USCIS economists, business analysts and adjudicators, supported by legal counsel.
There would also be an expert Decision Board that renders decisions on the I-924 applications and afford applicants the opportunity for an in-person or telephonic interview.

The EB-5 visa category was created by Congress in 1990 for immigrants who could invest $1 million (or $500,000 in rural or high unemployment areas) in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs within 2 years of the investor’s admission into the U.S.

To attract more investors, Congress created in 1992 a “pilot program” which has been extended through September 30, 2012. Compared to the regular EB-5 program, investments under the pilot program must be made in a designated Regional Center and there is no need for the investor to employ U.S. workers as long as at least 10 jobs are created directly or indirectly as a result of such investment.

Each year, approximately 10,000 visa numbers are available for the EB-5 category, with 3,000 going to investors in rural or high unemployment areas, and 3,000 to investors in Regional Centers. In 2010, only a total of 1,885 visas were issued, down from more than 4,000 issued in 2009. The EB-5 program has never met its annual cap since its inception.

Once the I-526 petition is approved under either the regular or pilot program, the investor and his/her dependents become conditional permanent residents. Within 90 days before the second anniversary of the investor’s admission, he/she must file an I-829 petition to remove the condition.

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