WHO SHOULD CONSIDER A REGIONAL CENTER EB-5

If you are an attorney who represents individual foreign nationals seeking permanent residence in the U.S., you likely have experienced a significant number of potential clients for whom existing immigration laws do not provide a solution that addresses their needs.  For many of these individuals, the lack of options is nothing new; for a significant amount of others, paths that previously existed have now been blocked.

Although certainly not for everyone, one manifestly underutilized category that provides an optimal solution for many of these potential clients is the EB-5 regional center investment option. The EB-5 regional center allows a foreign national and his or her spouse and children to obtain employment authorization relatively promptly; allows the foreign national to work wherever he or she pleases (or not work if he or she pleases); and allows his or her children to go to school in the U.S. and to pay in-state tuition.  Given the unprecedented favorable exchange rate for most foreign currencies against the U.S. dollar, the required investment amount - - usually $500,000 - - is not an insurmountable obstacle to many foreign national clients.

Regional Center Targeted Client List

The following are examples of foreign nationals for whom investment in an approved regional center may be the best immigration option:

1. Retirees - - These potential clients are often devoid of immigration options if they do not have a close family member or employer to sponsor them.
2. Potential H-1B shut out by quota - - This group is growing larger every year.  As the H-1B category deteriorates into a lottery, new options - - even if not the most preferable options - - must be explored.
3. H-1B nearing six year limit - - Some of these individuals did not initiate the permanent residence process early enough; others have no permanent residence options available.  Unless something can be done very quickly, these individuals will be out of options.
4. Investors from non-treaty countries - - For some foreign nationals, an E-2 nonimmigrant treaty investor visa may be completely sufficient but for the fact that they are not nationals of a country that has an E-2 treaty with the U.S.
5. Individual owner of a business outside of the U.S. who wants to set up a business in the U.S. - - Some of these individuals will not qualify for L-1 status because the overseas company will close upon transfer of the owner/manager to the U.S.
6. Entrepreneurs who want to set up a new business in the U.S. - - Some of these individuals will not qualify for L-1 because there is no related company overseas or because the individual does not have the one year of qualifying experience.  Others may not qualify for E-2, L-1 or individual EB-5 because the U.S. company will not create any jobs or sufficient jobs in the near future.  Still others may not want to wait to apply for permanent residence until the U.S. company has engaged in active business for one year.
7. Potential L-1 applicants who are nationals of a country (such as China or Russia) for which USCIS views startup L-1s with great suspicion.
8. F-1 student who wants to start a business - - Since on-campus employment for a business unrelated to the needs of the student body, and any off-campus employment, may be unavailable to the F-1, wealthy parents may provide an answer.
9. Spouse of permanent resident - - With long quota wait and no derivative status available, visa options are extremely limited.
10. Doctor who has not passed USMLE 1, 2 and 3 – Unless the doctor has a level of national prominence, H-1B is not an option.
11. Foreign nationals in a multiple-year immigrant quota waiting list - - As quotas in virtually all family and employment-based categories get longer, and with the prospects worsening, a permanent residence category with no quota wait becomes even more alluring.
12. CEO/manager of a company who is not a transferee - - With H-1B numbers unavailable, and with labor certification a particularly inappropriate option, another solution becomes necessary.
13. Parent who does not want to be involved in active management of, or employment in, a business but wants the children to be able to go to school in the U.S. - - F-1 may not be an option either because the children are pre-college or because INA §214(b) may be an obstacle.  A relatively prompt route to permanent residence without a commitment that the parent work in the U.S. is an ideal option.  The possibility of qualifying for in-state tuition on a relatively expedited basis is a special bonus.
14. Foreign national affected by Department of Labor regulations requiring employers to pay labor certification fees and costs - - Many employers cannot or will not pay legal fees and advertising costs for a labor certification application on behalf of a foreign national employee.  This group of foreign nationals who could previously obtain permanent residence based upon employer sponsorship now needs another option.