Unpacking the USCIS EB-5 Guidance 2023 on EB-5 Sustainment Period changes.
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USCIS recently gave guidance on the EB-5 investment timeframe of the EB-5 Reform and Integrity Act of 2022 (RIA).
Making an at risk EB5 investment to create jobs is a requirement of the EB-5 visa. The minimum timeframe to satisfy having your EB5 capital at risk is the “Sustainment Period“. Think of this EB5 investment period as a floor, not a ceiling.
This investment timeframe is different for old and new investors because the law is not retroactive. Pre-RIA investors must sustain their investment for their two years of Conditional Residence to meet the requirement. This is despite the fact that it may take them many years to get there.
For post-RIA investors the required time is 2 years from the time of investing. As we will discuss, what exactly constitutes the start of this two-year period needs explanation. We will also discuss realistic repayment timelines for an EB5 investment considering project needs and job creation.
BACKGROUND
Over 115,000 investors and their families have achieved their American dream by getting Green Cards through the EB-5 Visa. The great demand for EB-5, visa quotas, and a pause in the Regional Center Program have overloaded the system. Because of this, nearly 70,000 pre-RIA investors have not yet reached the end of their Conditional Residence.
The EB-5 application process was swift in its early years. Their Immigrant Investor I-526 Petitions took only a few months for approval. Consulate interviews would take 6 months at most.
In a little more than a year EB-5 investors and their family members could get their two-year conditional Green Cards. The USCIS defined the “Sustainment Period” as the investor’s 2 years of Conditional Residency status before the RIA. Pairing one’s investment period with one’s immigration process is problematic. A variety of reasons can delay one’s immigrant visa and thereby delay repayment.
RETROGRESSION
Processing times and country caps on EB5 visa allocations began pushing the start of Conditional Permanent Residency further away. This is especially true for investors from high-demand countries for EB-5 investor visas like China and India.
This mismatch between demand and visa availability has caused immigration bottlenecks and multi-year backlogs. For instance, some past Chinese investors may have to wait over 15 years for a visa allocation.
Investors had to wait several years for a conditional Green Card and two more years just to be eligible for getting funds back.
So, what happens if the project is ready to repay, but you have not yet fulfilled 2 years of conditional residency? They have to redeploy investment amounts to another project to keep the funds at risk. Therefore, you will have to wait to fulfill the 2 years of conditional residency.
REDEPLOYMENT
Most EB-5 investors invest in partnerships sponsored by EB-5 Regional Centers. These partnerships lend money to EB-5 projects that create jobs through construction activities. The EB-5 lingo for these entities are New Commercial Enterprise (NCE) and Job Creating Entity (JCE). The typical length of these loans is 5 years.
Therefore, what happens when a JCE repays a loan to the NCE?
EB-5 investors that have not finished their Conditional Residency cannot receive capital payback. Otherwise, they lose their right to Permanent residency status (I-829 Petition approval). This forces them to maintain their capital invested years longer than expected.
To comply with their Sustainment Period, NCEs reinvest the EB-5 capital of these investors into new projects. These projects are not for creating jobs. Remember that the original project created the jobs needed for EB-5. This being said each redeployment adds extra risk to the investor.
Redeployment is stressful for EB-5 investors. If the second investment fails, then redeployed investors could lose their EB-5 capital. The American Immigrant Investor Alliance has shown that this is a huge issue.
SUSTAINMENT PERIOD IN THE RIA
President Joe Biden signed the EB-5 Reform and Integrity Act (RIA) on March 15, 2022. US Senators Chuck Grassley and Patrick Leahy were the RIA sponsors. They saw how the EB-5 Program had deviated from its original purpose. Instead of a direct immigration path for investors that created jobs, EB-5 had become a lucrative finance system.
The RIA remedy for this came in two small language changes in the original EB-5 law (INA). It took out requisite to be “invested or actively in the process of investing” during Conditional Residence. It replaced it with expected to remain “invested for not less than 2 years”.
This effectively decoupled the EB5 immigration process from return of capital. Which is fair to an EB5 investor that has created the requisite number of jobs.
Their main intent was to eliminate redeployment altogether. Think about it, if an EB5 investor has already created the jobs then why shouldn’t they be able to get their funds back?
This being said the Law was not explicit on what constitutes the start of the 2-year investment period. Is it once you have sent your EB5 funds to the entity you are investing in (NCE)? Or would it be when the project (JCE) finished spending the EB-5 capital? Luckily the USCIS has just recently provided guidance on this matter.
USCIS EB-5 GUIDANCE 2023
USCIS posted their position on the new 2 year sustainment in the “EB-5 Questions and Answers ” of their website on October 11, 2023. For now, it is only Guidance, that is, guidelines on how they interpret and plan to implement the law.
US Citizenship and Immigration Services USCIS will have to go through a rulemaking process to make it official policy. The process includes publication and a public comment period. Without a proper rulemaking process some the USCIS may open itself to lawsuits and further misinterpretation. With this caveat in mind let’s take a look quick look at the most pertinent parts of what the USCIS has stated:
1. The “sustainment period” depends on when investors filed Forms I-526 or I-526E in relation to the RIA enactment.
2. Investors who filed I-526 Petitions BEFORE the RIA, must still fulfill two years of conditional residency. The NCE must redeploy their funds one or more times.
3. Investors who filed I-526(E) petitions AFTER the RIA, it is two years from investment. This virtually eliminates the chances of requiring redeployment.
4. The Two-Year Investment starts when full investment at the NCE becomes available to the EB-5 Project (JCE).
5. For capital repayment, an investor’s EB-5 capital must generate at least 10 full-time jobs.
6. The RIA determines only the earliest repayment time. The business plans and contracts determine how long the EB-5 capital stays in the NCE.
7. EB-5 investors have to file their I-526 or I-526E Petitions while their EB-5 capital is at risk. They do not need I-526 approval if two years have passed since investment and the capital has created the jobs.
IS IT REALISTIC TO CREATE 10 JOBS AND TO GET YOUR MONEY BACK IN 2 YEARS?
The essential question is: what is the asset you want for your EB-5 and how long does it take for safe EB-5 capital return? You want guaranteed job creation for your Permanent Green Card. You also want highly marketable real estate to get your money back. For this, you are looking at an investment cycle of at least 4-5 years.
You cannot rush a tree to bear fruit and you do not want to sacrifice safety for speed.
For a Regional Center project USICS counts all direct, indirect/ induced jobs stimulated by construction costs and project revenues. RIMS II and IMPLAN are some of the economic models the government accepts to forecast indirect/ induced job creation.
If construction is longer than 2 years, USCIS allows 90% of the jobs to be indirect/ induced. It requires that only 10% of the jobs be direct. The surest job creation therefore comes construction projects that are longer than 2 years.
In the eyes of the Immigration Services USCIS all these construction jobs are permanent and full time.
Construction spending alone should create more than the 10 jobs for the Permanent Green Card of all investors in an ideal project. This approach immunizes you against any risks from Operations. To achieve this immunity an investor needs a project that has at least a 2-year construction timeline.
You also need a project that is easily marketable for your EB5 capital return. That is, you want a well-located project with strong cash flows to attract institutional investors that want to buy it.
In turn, the developer needs assured funds during the whole process. Think of 2 to 3 years for project development and construction. Then there will be 2 to 3 years to stabilize project cash flows and sell or refinance the project at optimal value.
CONTRACTS DETERMINE WHEN THE EB-5 CAPITAL CAN EXIT
The promises that an investor may not come to be true. NCE partnership documents ultimately determine how long your EB-5 capital stays in the project.
The NCE lends your funds to the actual project that is creating the jobs (JCE). You need to know the length and conditions of the loan.
Usually, loan maturity is 5-7 years, and there are extensions. The developer/ JCE first needs to pay back the loan. Only then, the EB5 entity (NCE) has the liquidity to give investors back their EB5 investment. What determines how long your capital stays is therefore not the USCIS Sustainment Period definition but project liquidity.
Traditional Regional Centers make their money from the spread on the EB-5 capital you have invested. They may charge you a hefty fee for lost profits if you exit early. Examine the fine print to see how much their penalty is.
Another trick to feint quick repayment Tis if contracts say that the loan is 3 years plus several 1-year extensions. This does not alter the fact that solid EB-5 projects take time to develop and mature. Promises for shorter capital payback may just be smoke and mirrors.
THE TWO-YEAR TIMEFRAME IS HARD TO DETERMINE
What makes the Sustainment Period clock start ticking is not the time you send the funds to the NCE. Your EB5 capital may remain in escrow until the Regional Center completes the EB-5 raise. That waiting time does not count towards sustainment.
The countdown does not even begin when the NCE sends your EB-5 capital to the JCE. The time starts when the JCE uses it for job creation.
Before using EB-5 funds, developers will spend their own equity. They could spend their own equity for a year before spending the EB5 funds. You may invest today but the project may not start using the loaned EB-5 funds until one or two years from now.
The RIA prohibits NCE’s deploying funds until they can pay job creating expenses. So, a developer can only use the EB-5 capital as construction demands it.
Regional Centers will typically deploy EB5 funds to a given project on a first come first served basis. The first investor’s funds may get to the project much earlier than the last. In either case both the first and the last investor will have to wait until the project has the liquidity to repay NCE.
For example, the first investor invested in 2023 and the last investor invested in 2025. They both got a return of funds in 2028. In this example the NCE gave a 5-year loan but the last investor in the NCE was there for three years.
Read the fine print because the loan time may start with another milestone, like when the JCE gets all EB-5 funds.
WHAT TO LOOK FOR
In EB-5 the future of your family and your hard-earned capital is at stake. Instead of untried models, look for a Regional Center with perfect EB-5 performance and 100% success in returning capital.
Instead of going with a Regional Center with large exit penalties, why not consider a vertically integrated Regional Center?
Traditional Regional Centers and their developers make more money the longer they keep your EB-5 capital. They have no incentive to pay you back before loan maturity even if they have the liquidity.
Remember that the Regional Center could be making 7% or 8% per year on your US $800,000. Their EB-5 financing cost may add US $ 350,000 to US $400,000 per each million EB5 dollars over the 5-year term of the loan. That is a heavy burden on the project and can lead to repayment risk.
At Houston EB-5 we do not make our money from raising and lending out funds. Our profit comes from project success at the back end. We can only get the bulk of our profits and our original investment back after you do.
Therefore, it is to our advantage to get your funds back as soon as possible. We proudly share our average capital payback across all full-term projects is less than 4.5 years.
With Houston EB5, you get a truly a win-win deal — we can only succeed when you do.
If you are looking for the fastest path to your Green Card with Priority Processing, a rural project is the way to go. If you are from China or India, the 20% visa set asides for rural projects will help you avoid retrogression.
You may want to consider our rural project, The Frederick. As you may see, The Frederick Video is in an area of burgeoning demand. Its mix of assets (hotel, residential, and retail space) will provide diversified sources of cash flow.
Objective rural data is scarce. We recently published a White Paper that describes the top rural areas for EB-5 investments. We used think tank Heartland Forward comprehensive research.
We have also shared a blog regarding how to mitigate risks associated with rural EB-5 projects.
Our rural project The Frederick is already more than halfway subscribed and there are limited EB-5 spaces available. To become part of this exciting opportunity, don’t hesitate to reach out to a member of our team.
