EB-5 Immigrant Investor Program: On the Sequence of Filing Immigrant Investor Applications
On the Sequence of Filing Immigrant Investor Applications
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiao Xiang
For those still considering filing an EB-5 immigrant investor application, now remains a favorable window of opportunity.
This is because the new EB-5 rules enacted by the U.S. Congress in 2022 have carved out additional "new" visa slots from the existing quota, allowing investors to pursue Dual Filing to obtain immigration status.
We have published numerous introductory articles about the EB-5 Immigrant Investor Program, yet many people still seem unsure about how to get started.
Some are actively seeking recommendations for eligible EB-5 projects from immigration intermediaries.
Others are grappling with anxiety over their final project selection.
Finding a suitable project to invest in is indeed crucial, and the conventional approach of identifying a project first before preparing the immigration application is not inherently wrong.
However, when it comes to racing against the clock to secure the limited available visa slots, this approach is not the most optimal.
In fact, the two key pillars of an EB-5 application are the source of investment capital and project selection.
The majority of rejected EB-5 applications are either due to inadequate documentation of the source of funds or issues with the invested project.
That said, application denials stemming from project-related problems typically occur at a later stage of the process—specifically, during the conversion of conditional permanent residence to unconditional permanent residence.
Conversely, failure to properly prepare the source-of-funds documentation can result in the application being rejected at the first hurdle, i.e., the denial of Form I-526.
This underscores the critical importance of compiling a thorough source-of-funds report.
Having financial means does not equate to having qualifying capital for an EB-5 application.
The investment capital used for an EB-5 application must be funds with a verifiable source.
Many individuals possess legitimate, non-illegally obtained funds that are nonetheless unsuitable for EB-5 investment—simply because their source cannot be adequately documented.
Even for funds with a verified source, there remains the challenging step of transferring the capital to a U.S. account.
This stage is not only difficult and critical but can also be extremely time-consuming and cumbersome.
Some people claim, "It doesn’t matter—I already have the money in an overseas bank account, ready to transfer to the project’s designated account at any time to complete the investment!"
Whenever we encounter such a situation, we unhesitatingly advise them: Do not transfer the funds yet. Wait until the source of funds has been fully verified and your immigration attorney gives the green light to proceed with the transfer.
Otherwise, transferring the money to the project developer or its designated escrow account will be a futile exercise.
It follows that verifying the source of investment capital should be prioritized.
But how should this be done in practice?
It must be carried out collaboratively by the investor, their family members, and an experienced immigration attorney, who will provide guidance in strict accordance with U.S. immigration laws and regulations.
Given this, can the sequence of an EB-5 application be understood as follows: first, retain an experienced EB-5 immigration attorney; then, verify the source of funds under the attorney’s guidance; and finally, transfer the verified capital into the project developer’s designated bank account?
This is precisely how the process unfolds in real-world EB-5 cases.
General immigration inquiries can be addressed by most immigration attorneys.
However, in-depth case-specific communication and strategic maneuvering can only be delivered by an attorney whom the investor trusts and endorses.
Therefore, entrusting an experienced EB-5 attorney to handle the application process from start to finish is an industry standard and a necessity.
While DIY (Do-It-Yourself) applications are feasible for certain simpler immigration categories, no one attempts to DIY an EB-5 application.
This is because EB-5 cases involve financial amounts, complexities, and specialized knowledge that are unparalleled in other immigration matters.
Once the source of funds has been verified and the capital is either already in place or 即将到位，the investor may deploy the funds to any EB-5-eligible project of their choice.
It is important to clarify that prioritizing the source-of-funds verification does not mean waiting until this process is fully completed before identifying an investment project.
The source-of-funds preparation can be initiated first, or it can proceed almost concurrently with project selection.
What is not advisable is finalizing a project first and then attempting to verify the source of funds afterward.
The source-of-funds verification process involves numerous external factors beyond the investor’s control and can take a considerable amount of time.
In contrast, the process of identifying a project and signing the relevant agreements is largely within the investor’s discretion.
Nevertheless, even after selecting a project and executing the documents, the project developer will not reserve an investment slot for an extended period if the capital is not forthcoming.
In conclusion, the recommended sequence for pursuing an EB-5 immigrant investor application is:
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Retain a qualified immigration attorney
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Prepare the source-of-funds report under the attorney’s guidance
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Identify an eligible EB-5 investment project
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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