EB-5 Immigrant Investor Program: Q&A on Rural Projects (Part 2)
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiao Xiang
In 2022, the U.S. Congress enacted new legislation governing the EB-5 Immigrant Investor Program, which effectively carved out additional visa slots for new investors. The newly established rural projects are one such measure to create these de facto additional slots.
Q: How are the EB-5 visa slots for rural projects allocated to investors, and how many rural project slots are available to investors born in Mainland China?
A: The new EB-5 legislation reserves 20% of the annual EB-5 visa quota for rural projects, which equates to 2,000 visa slots per year. These slots are distributed on a country-specific basis, with a 7% per-country cap. This means that Mainland China is entitled to at least 140 slots. The actual number of slots available to investors born in Mainland China will depend on how many slots are used by EB-5 investors from other countries.
Q: Is there a way to find out how many of the rural project visa slots have been used so far?
A: Since U.S. Citizenship and Immigration Services (USCIS) has not released data on the number of EB-5 applications filed for rural projects, we cannot determine the exact number of Form I-526E petitions submitted under the rural project category. What we can do is proceed with Dual Filing as soon as possible before USCIS officially announces that the rural project visa slots have been exhausted, so as to secure the immigration documents (work authorization and advance parole) needed to stay in the U.S. at the earliest opportunity.
Q: What impact will it have on EB-5 applications if the visa slots for rural projects are announced to be fully subscribed?
A: It will have a significant impact on EB-5 investors born in Mainland China. This means that new EB-5 investors who continue to invest in rural projects will no longer be eligible for Dual Filing of their immigration and adjustment of status applications, and will instead be subject to a new round of visa retrogression.
Q: I have already invested in an EB-5 project and am still waiting for my visa priority date to become current. Is it feasible for me to invest in a new rural project at the same time?
A: Yes, it is. There is no legal prohibition against filing two EB-5 immigrant investor petitions.
Q: I am eager to file a new EB-5 rural project application on behalf of my child. If I withdraw my funds from my existing EB-5 project and reinvest the money in a new rural project, will there be any adverse consequences? Can this guarantee that my child will obtain a green card sooner?
A: Withdrawing your investment from the existing project will most likely require you to withdraw your pending EB-5 application as well. Therefore, it is necessary to review the specific terms of your existing investment agreement and project documentation to assess any potential adverse impacts. It is currently impossible to guarantee that investing in a new rural project will result in your child obtaining a green card sooner. However, investing in a new rural project and filing for Dual Filing can ensure that your child obtains work authorization and advance parole, allowing them to reside in the U.S. long-term.
Q: When you said "it is currently impossible to guarantee", does that mean that even investors in rural projects may face long waiting times to obtain a green card?
A: The reason we said "it is currently impossible to guarantee" is that, to date, no investor in a rural project has yet been granted a conditional green card. Rural projects were only introduced last year, so the timeframe is still too short to have any actual approval cases. Additionally, USCIS has yet to finalize certain policies related to rural projects.
Q: What does "Dual Filing" mean, and under what conditions is it permitted?
A: To obtain a U.S. green card through the EB-5 program, an investor typically must first file Form I-526 (Immigrant Petition by Alien Entrepreneur) and then wait for their priority date to become current before filing Form I-485 (Application to Register Permanent Residence or Adjust Status). Dual Filing allows EB-5 investors to submit both Form I-526 and Form I-485 simultaneously, completing the green card application process in one step. Dual Filing is permitted only when there is no visa retrogression for rural projects, and the EB-5 investor is physically present in the U.S. and holds a valid nonimmigrant visa status at the time of filing—such as international students in the U.S. or foreign workers employed in the U.S.
Q: How long does it take to receive the receipt notices after investing in a rural project and submitting the applications?
A: Based on our firm’s experience, after filing for Dual Filing, we first receive a simple letter regarding Form I-526E approximately one week later, confirming that USCIS has received the Form I-526E petition. However, this letter does not include an official receipt number. We then receive the official receipt notice for Form I-526E after another month. Generally, we receive the official receipt notices for Form I-485, the work authorization application, and the advance parole application within three weeks.
Q: Does the immigration status of an EB-5 investor in the U.S. change upon receiving these receipt notices?
A: Yes, it does.
Q: Once I receive the receipt notices for my EB-5 application, work authorization, and advance parole, can I drop out of school?
A: Theoretically, yes. However, the actual decision must be made on a case-by-case basis, taking into account individual circumstances. It is advisable to consult with an experienced immigration attorney before deciding whether to abandon your student status.
Q: Once I receive the receipt notices for my EB-5 application, work authorization, and advance parole, do I still need to participate in the H-1B visa lottery?
A: No, you do not.
Q: Once I receive the receipt notices for my EB-5 application, work authorization, and advance parole, do I still need to apply for Optional Practical Training (OPT) and comply with the requirement of finding a specialized job within 90 days?
A: No, you do not.
Q: Once I receive the receipt notices for my EB-5 application, work authorization, and advance parole, can my child stay in the U.S. to attend school?
A: Yes, they can!
Dear readers, if you have any other questions about EB-5 rural projects, please leave your comments below this article. We will address them in subsequent installments.
The above overview is prepared by XIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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