Klasko Immigration Law Partners, LLP
As detailed in our podcasts as well as articles and blogs written by Karuna Chandani-Simbeckand Ron Klasko, with a 10+ year visa backlog for China EB-5 and the resulting slow-down of EB-5 investors from China, Regional Centers and Developers have considered India the new EB-5 frontier over the past few years. Although this was initially met with lukewarm interest and heavy skepticism by the Indian community, recent changes to H-1B adjudication and wait times of 10+ years for India EB-2 and EB-3 has sparked the interest of Indian nationals who are now exploring EB-5 as a viable option to their immigration woes.
As most of the EB-5 education and marketing efforts were previously focused on Chinese and Vietnamese nationals, I find that consultations with potential Indian clients primarily involve little more than identifying the steps in the process and explaining terms. So I thought a guide to EB-5 would be helpful to those Indian nationals who are interested in pursuing EB-5 as an option. Over the next few weeks, I will be publishing several “Intro to EB-5” articles and podcasts geared towards Indian investors to help them understand the process and answer the most frequently asked questions.
I’ll kick off the series with a brief overview of the three steps of the EB-5 process.
The investor files an I-526 petition with the U.S. Citizenship and Immigration Services once the investment has been made. The I-526 petition contains the I-526 form and two sets of documents:
i. Project Documents: Documents from the project include a business plan, economics report, securities documents and other supporting documents to show USCIS how the project plans to spend X amounts of dollars to create Y number of jobs.
ii. Investor Documents: The investor’s portion of the I-526 petition includes basic biographic documents along with detailed documents to evidence how the investor lawfully obtained and transferred the money used for the EB-5 investment.
2. Consular Processing or Adjustment of Status
Once the I-526 petition is approved, and if a visa is immediately available, the investor, spouse, and any child who was under the age of 21 at the time of filing the I-526 petition, are eligible to apply for their green cards. If there is a visa backlog, the investor and family members must wait until a visa becomes available before they are eligible to apply for/obtain their conditional residency status.
If the investor and family are in the U.S. in valid status, they can each file for adjustment of status (Form I-485). Along with the adjustment application, each person can file for advance parole (I-131) and work authorization (I-765). Once the adjustment application is filed, except in very limited circumstances, the investor and family should not travel until the work authorization and advance parole is approved and a combination EAD/AP card is issued. Current processing times for these applications is 45-60 days for advance parole and work authorization and 6 months for the adjustment application. Once the adjustment applications are approved, the investor and family are conditional residents of the U.S.
If the family is outside of the U.S., they can file for consular processing (Form DS-260) with the National Visa Center (NVC). Once the forms and documents have been filed, the investor and family will be scheduled for an interview at the U.S. consulate closest to their country of residence. After the interview, the investor and family will receive immigrant visa stamps in their passport. The first day they enter the U.S. is their first day of conditional resident status.
Investor and family will receive conditional resident status which is valid for 2 years.
The processing times for both the I-485 and DS-260 is averaging about 6 months from filing.
3. I-829 Petition
The I-829 Petition is the final step of the EB-5 process. Within the 90 days before the expiration of the conditional resident status, investors and family members must file an I-829 petition with USCIS. Currently, the I-829 petition requires very little information from the investor and family members: they simply need to provide their green cards and ensure that they have not committed any criminal or immigration violation that would prevent them from obtaining lawful permanent resident status.
The project, however, will be required to document that it has spent the money and created the jobs they claimed they would at the I-526 stage.
Current processing time for I-829 petitions is about 2 years. A timely filing of the I-829 petition extends the conditional residency period for 18 months. If the I-829 is not approved before the extension lapses, investors can obtain proof of their continued conditional resident status through an InfoPass appointment at their local USCIS office.