Navigating Recent Changes in the EB-5 Program and Exploring the E-2 Visa Landscape

The EB-5 Reform and Integrity Act of 2022 opened the option of “concurrent filing” to EB-5 applicants who have been living in the US. This departure from the conventional sequential filing of the two stages of the EB-5 immigration process has far-reaching implications. Eligible individuals already residing in the U.S., be they students, visitors, or holding non-immigrant statuses like H-1B, can now simultaneously submit both the Immigrant Petition (Form I-526 or I-526E) and the Adjustment of Status Application (Form I-485). This streamlined process may not expedite the overall procedure but it grants applicants the invaluable advantage of securing work and travel permits while their applications are under review.

This paradigm shift holds particularly promising prospects for investors from countries such as China and India. The EB-5 categories, previously delayed by extensive waiting periods, now show a "current" status for specific categories like "Rural,"  and "Infrastructure," as indicated by the State Department’s visa bulletin. For potential immigrants from India, grappling with waiting lists exceeding a decade in the EB-2 and EB-3 categories, this new development positions EB-5 as great option to obtain work and travel permission and the ability to stay in the US.

Also it is important to make note of the fact that the United States Citizenship and Immigration Services (USCIS) has announced pivotal adjustments in government filing fees effective April 1, 2024, for EB-5 applications. The fees for filing forms I-526/I-526E are poised for a substantial increase, catapulting from the existing $3,675 to a notable $11,160. This financial recalibration underscores the urgency for applicants to act promptly, presenting a fleeting window to file in this category and potentially save thousands of dollars.

Pivoting to the E-2 visa, often perceived as the sibling of the EB-5 program, the E-2 visa program has a distinctive set of characteristics. Notably, the E-2 visa offers investors greater flexibility with a more manageable investment requirement. While the EB-5 program mandates a minimum investment of $800,000, the E-2 program calls for a "substantial" investment along with job creation in the U.S. Although the E-2 program lacks a direct pathway to a green card, it is an attractive alternative for individuals who prioritize business opportunities over long-term residency.

However, a caveat exists— the E-2 visa is selectively available to nationals of approximately 80 countries holding treaties with the U.S. Unfortunately, major economic powerhouses such as China, India, Brazil, and South Africa lack an E-2 treaty. This absence prompts nationals from these countries to consider alternative routes, such as the EB-5 program or, perhaps, the L-1A (Intra-company Transfer) visa.

In conclusion, both the EB-5 program and the E-2 visa open avenues and opportunities for foreign investors, each demanding a substantial financial commitment. The E-2 visa, while restricted to individuals from specific countries, opens a temporary avenue for conducting business in the U.S. The EB-5 program, on the other hand, accessible to applicants globally, requires a higher investment but serves as a promising pathway to permanent residency.

As prospective investors weigh their options, comprehending the intricacies of these programs becomes paramount, empowering them to make informed decisions aligning with their unique goals and aspirations.

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