The EB-5 visa, also known as the immigrant investor visa, allows immigrant entrepreneurs and investors to come to the U.S. if they meet certain criteria related to the amount of their investments and the number of jobs they can create for American workers. While the processing time for EB-5 visa petitions is less than many other types of visas, it can still take months that the prospective immigrant, not to mention the immigrant’s business venture and the American workers who need jobs, would prefer to spend getting the business started. Federal law gives preference to EB-5 visa petitions affiliated with an approved Immigrant Investor Regional Center, and U.S. Citizenship and Immigration Services (USCIS) has developed criteria for expediting certain Regional Center-affiliated petitions.
Wait Time for EB-5 Petitions
The U.S. State Department’s Visa Bulletin for May 2013 states that the government is current on processing EB-5 petitions, but the process can still take months, if not longer. An immigrant seeking admission the the U.S. with an EB-5 visa must embark on numerous time-sensitive undertakings, including the formation of or investment in a commercial enterprise with a stake of up to $1 million, and the creation of at least ten full-time jobs for authorized U.S. workers.
Regional Center Priority
Regional Centers are third-party businesses, which may be public or private, approved by USCIS to assist EB-5 visa petitioners. A Regional Center may, in exchange for an administrative fee, handle aspects of the investment for the visa petitioner, particularly job creation. Congress created a pilot program in 1992 that established a priority for EB-5 petitions affiliated with a Regional Center by guaranteeing a fixed number of visas set aside each year. Pub. L. 102-395 § 610.
USCIS’s EB-5 Petition Expedite Criteria
USCIS has identified seven criteria for expediting the processing of Regional Center-affiliated EB-5 petitions, which it applies on a case-by-case basis:
1. Risk of “severe financial loss” to the prospective immigrant or the company receiving the immigrant’s investment;
2. “Extreme” emergencies;
3. Humanitarian reasons for expedited service;
4. Benefit to “the cultural and social interests of the United States,” in situations where a nonprofit organization is involved in the petition and requests the expedited processing;
5. Interest of the Department of Defense or the nation, provided that a government entity makes the request;
6. Error on the part of USCIS; or 7. “Compelling interest of USCIS.”
Methods of Obtaining Expedited Processing
The grounds of “financial loss” and “national interest” may be easiest to establish for most petitioners. Risk of financial loss may occur when financing or other major capital contributions to a commercial enterprise are threatened by delays in EB-5 processing, and the loss of such financing or capital would jeopardize the entire project. “National interest” projects may include investments in essential infrastructure, as well as projects that improve national security. “Emergencies” might include a medical situation that requires the investor, or a family member, to come to the U.S. immediately. Similarly, a humanitarian situation may occur if an investor has to leave their home country quickly.
At Samuel C. Berger, P.C., our immigration attorneys represent immigrants and prospective immigrants who seek to move to the New York and New Jersey areas, or who live here already and wish to maintain or make modifications to their immigration status. We help immigrants obtain visas and green cards through family or employment, and we help families and businesses petition on behalf of immigrant loved ones or employees. Contact us today online or at (212) 380-8117 to schedule a confidential consultation with a member of our legal team.
More Blog Posts:
USCIS Issues Draft of Policy Memorandum for EB-5 Visa Program, New York & New Jersey Immigration Lawyer Blog, March 21, 2013
U.S. Senate Passes Extension of EB-5 Investor Visa Pilot Program, New York & New Jersey Immigration Lawyer Blog, September 7, 2012
USCIS Launches Initiative to Promote Immigrant Entrepreneurship, New York & New Jersey Immigration Lawyer Blog, March 1, 2012
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