A window opens to get EB-5 visa with lower investment

A federal court invalidates rule raising minimum investment from $500,00 to $900,000

While a majority of Indians coming to the US are on work visas, it is no secret that the investor visa program or EB-5 has been seeing an unprecedented jump in demand.

While the previous Trump administration continued to closely monitor most visa programs, the EB-5 visa route too saw its share of complexities.

The Final EB-5 Rule which increased the minimum investment amount from $500,000 to $900,000 was invalidated by a federal court in California on June 22, but without an injunction to prevent its reinstatement.

Read: Lawsuit challenges Trump-era EB-5 visa changes. What would it mean for investors? (April 11, 2021)

Judge Jacqueline Scott Corley of the US District Court of the Northern District of California issued an order granting summary judgment in plaintiff’s favor in the matter of Behring Regional Center LLC V. Chad Wolf, et al.

However, the court declined to grant an injunction barring Secretary of Homeland Security Alejandro N. Mayorkas from reinstating the Final EB-5 Rule absent compliance with the Administrative Procedure Act’s (APA) rule making process.

It is thus highly likely that Mayorkas will take action to reinstate the Final EB-5 Rule.

Read: Indians look for new route to US immigration as EB-5 visa investment jumps to $900,000 (November 21, 2019)

However immigration attorneys maintain that the good news is that there may be an opportunity in the coming days or weeks, for limited period to file a new EB-5 application with reduced investment of $500,000.

There is no given timeline for which this change may be valid, but this offers Indian investors an opportunity to apply for the program at a reduced amount.

Mark Davies, Global Chairman, Davies & Associates, LLC told the American Bazaar, “Within hours of the court decision, our firm received scores of inquiries from Indian investors who were hoping to avail the opportunity to invest in an EB5 qualifying project at $500,000.”

Read: EB-5 visas: Here’s everything you need to know about immigrant investor visa program (April 18, 2019)

“While a window potentially exists until June 30 when the current Regional Center program expires, the next 24 to 48 hours are crucial as a response from USCIS is anticipated,” he adds.

“This could include filing an appeal or taking other administrative actions to close this $500,000 window,” Davies says. “This means that clients who had EB5 cases pre-prepared for filing at $500,000 may be able to file immediately, while others may not be able to file a case at 500,000 given the timeframe and contingencies involved.”

“This also re-raises the question of responsible partial filing,” he says. “If carefully structured using escrow accounts and special Fixed Deposit accounts in India and the US, that only allows for maturing funds to be remitted to the Regional Center, partial funding can be executed in a low-risk manner. It will be interesting to see how the Regional Centers respond in the coming hours.”