Newly Published EB-5 Modernization Rules from USCIS: does it impact Indians?

On July 23, 2019, United States Citizenship and Immigration Services’ (USCIS) regulations to update the Immigrant Investor Program were published in the Federal Register. The new EB-5 Immigrant Investor Program Modernization rules (New Rules) amend the historic Department of Homeland Security (DHS) regulations governing the employment-based, fifth preference (EB-5) immigrant investor classification and associated regional centers to reflect statutory changes and modernize the EB-5 program. The New Rules are creating quite a buzz in the EB-5 community with good reason. Of particular note, the New Rules modify the EB-5 program by:

  • Increasing the required minimum investment amounts;

  • Providing the long-awaited priority date retention to EB-5 investors in certain cases;

  • Amending targeted employment area (TEA) designation criteria;

  • Centralizing TEA determination;

  • Clarifying USCIS procedures for the removal of conditions on permanent residence fulfilment;

  • Providing for periodic minimum investment increases henceforth; and

  • Implementing a myriad other amendments.

The New Rules are effective 120 days from publication, which is November 21, 2019. The effective date of the New Rules presupposes that Congress will extend the EB-5 Program’s current sunset date of September 30, 2019. USCIS clarified that it will adjudicate investors, who file a Form I-526 petition before November 21, 2019, under the current EB-5 program rules. Now the race is on to initiate and complete investments by the effective date. (Source natlawreview.com)

What is the impact of EB5 rule change on Indians?

The Indian media picked up this story and began analysis of the impact on Indians. However, a fact are worth noting: Although the number of EB5 visas  quadrupled from 100 to 500 (link), this is a reminisce number when one considers hundreds of thousands of Indians waiting for employment based (EB) and family (F) sponsored visas

eb5
image source https://www.prnewswire.com/news-releases/eb-5-visas-issued-to-indians-quadruple-over-two-years-300818040.html

The reason for so few EB5 visas issued to Indians is not hard to fathom. The number of Indians who have half or a million dollars to spare is minuscule. Those who have a million dollars (6 or 7 crore rupees) to ‘invest’ are probably the crème de la crème of Indian business, government and society. They are not likely to think of ‘investing’ a million dollars for an American Green Card when they can just as easily get long-term visa to other countries around the world.

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I’m a multi millionaire and I want to move to the USA, will I be granted a permanent visa?

Here is a recent query from an online forum. The questioner adds

“I have no plans to work, or claim welfare of any kind. Simply buy a property and spend my days relaxing, shopping and so on.”

Our editor responds: Merely the intent to move to the US will not get you a visa.  However, since you are a multi-millionaire, and have a million dollars to invest, you may be eligible for certain categories of immigrant visas. As a high-net-worth individual/entrepreneur, you qualify for several types of visas. You could apply for the following:

  • E-2 Treaty Investor (nonimmigrant visa) – According to the USCIS, one is eligible for an E-2 visa if you invest a substantial amount of money in a new or existing U.S. business. This is applicable for individuals from countries that have a treaty of commerce with the United States. This visa isn’t an immigrant visa, so it has an initial period of stay of 2 years. You can extend the visa in two-year increments.
  • EB-5 Immigrant Investor Program (immigrant visa and green card) – Check out the detailed Q&A: What is Eb5 visa?  EB5 is a popular program that some wealthy Chinese and Indians have been availing. After your attorney files the green card application, one should be prepared to do an interview and wait about six months before being granted the Visa

 

Q&A: What would be the impact under Indian laws for Indians, either residents or non-residents, getting citizenship in other countries?

Indian law does not prevent an individual from acquiring a foreign citizenship. However, after acquiring a foreign citizenship, an individual has to Renounce their Indian Citizenship (ref link: Consulate General of India )

“It is mandatory for all persons of Indian origin, who had ever held an Indian passport, to renounce their Indian citizenship upon acquiring any foreign nationality. This is a prerequisite to obtain Visas or OCI cards from the Consulate.”