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Strengthening Your EB-5 Petition

December 12, 2017 - ByShahzad Ahmed with NeJame Law

The EB-5 program was designed to stimulate the economy via foreign investment. However, despite the benefit to the economy, the US Citizenship and Immigration Service (USCIS) does not roll out the red carpet to these investors. Rather USCIS scrutinizes these petitions heavily, and so it is vital to prepare your EB-5 petition thoroughly and carefully.

One example where your EB-5 case requires detailed attention is in proving the reasonableness of job creation. The regulations require demonstrating through a “comprehensive business plan” that “due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result.” Based upon this requirement, artificially projecting ten employment positions is insufficient. The USCIS will focus on the actual need for the employment position. Thus, the business plan must be a credible one to support the need for the positions.

Another area which the USCIS reviews closely is the money trail of a loan. Many prospective EB-5 investors are unaware that they may borrow the necessary funds to make their EB-5 investment, as long as they are themselves primarily liable, the funds are from lawful sources, and the funds are not secured against the assets of the enterprise they are investing in. In such cases, the investor must carefully document the source of the loan. The USCIS thoroughly reviews the credibility of the documents, so it is crucial to provide a documentary trail of the funds from any lender to the investor.

The EB-5 program offers permanent residency for the foreign investor and his family while benefitting the U.S. economy. However, USCIS thoroughly examines the case for each requirement. Thus, given what is at stake, it is crucial for you as the investor to prepare your case in a careful and detailed manner.

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