United States: How To Evaluate Immigration Risk For EB-5 Projects: Impact Of I-956F Approval

By: Samuel B. Silverman and Ronald Klasko

Understanding risk is vital for investors.

For EB-5 investors, finding a project with low immigration and financial risk is key. Many factors affect a project's risk profile, and it can be hard for EB-5 investors to identify what matters most and what is less important.

Some EB-5 projects on the market today claim they are "lower risk" because they have Form I-956F approval. Are these claims accurate? What does Form I-956F approval mean for an EB-5 project's immigration risk and financial risk?

In this article, we will first unpack what Form I-956F is. Next, we will consider the impact that I-956F approval has on an EB-5 project's immigration risk. Then, from an immigration perspective, we will look at other risk factors that are critical for Green Card success. Finally, we'll discuss what questions you should ask to best evaluate the immigration risk of any EB-5 investment project.

What is Form I-956F?

Form I-956F is an important form for EB-5 projects. Before investors can submit their I-526E petitions, the project's regional center sponsor must submit this form. Form I-956F plays a key role in keeping an EB-5 project transparent and accountable.

Form I-956F provides details about the project, like its location, the expected investment amount, the at-risk nature of the investment, and job creation. The I-956F application also requires the project's EB-5 sponsor to provide details about the people who have control over EB-5 investment funds. The project sponsor provides these details through Form I-956H.

Form I-956F and related Forms I-956H are used by United States Citizenship and Immigration Services (USCIS) to ensure a project complies with EB-5 rules.

What Impact Does I-956F Approval Have on Immigration Risk?

Form I-956F approval means that USCIS found that the project complies with EB-5 program rules. Approval of this form does not mean the project will succeed. Even if a project's I-956F petition is approved, its EB-5 investors can still be denied their Green Cards (immigration risk) and/or lose their money (financial risk).

EB-5 investor petitions can be denied for many reasons. USCIS may deny an investor's initial petition for a temporary Green Card based on his or her source of funds. The project could fail to create enough jobs for EB-5 investors, which would result in USCIS denying an investor's petition to make his or her Green Card permanent. Many other factors affect immigration risk, and we'll examine those more in the next section.

Form I-956F approval addresses one of many risk factors but does not eliminate immigration risk. That said, having an approved Form I-956F is essential to the ultimate approval of each investor's I-526E petition.

What Factors Are As or More Important than I-956F Approval for Green Card Success?

EB-5 investors face two categories of risk: financial risk and immigration risk. Having an approved Form I-956F has no real bearing on a project's financial risk. Form I-956F approval means that USCIS has approved the business plan, targeted employment area (TEA), economic report, and confidential offering memorandum.

Following is a list of some other key immigration risks not addressed by I-956F approvals:

EXPERIENCED PROJECT SPONSOR

An investment is much riskier if a project's EB-5 sponsor regional center has limited experience with the EB-5 program. With no track record to rely on, investors can only hope that the regional center will fulfill its EB-5 compliance and oversight duties. Such a project would be much riskier than a project that has a sponsor with substantial EB-5 experience.

In this case, having an approved Form I-956F provides a level of assurance that the project meets basic EB-5 criteria. Even with I-956F approval, however, the sponsor's lack of experience still means more risk to EB-5 investors. The regional center must continue to fulfill its compliance and oversight role for the entire EB-5 process.

EXPERIENCED EB-5 IMMIGRATION ATTORNEY

To lower immigration risk, an EB-5 investor should hire an attorney who knows the EB-5 visa program well. A knowledgeable EB-5 lawyer is needed to ensure the investor's source of funds is documented correctly, to prepare and file all required forms, and to show that all EB-5 requirements have been met.

LAWFUL SOURCE OF FUNDS DOCUMENTATION

An EB-5 investor must show that his or her funds were lawfully obtained. Without proper source of funds documentation, the investor's immigrant petition may be denied.

FORM I-829 DOCUMENTATION

At the end of the EB-5 investment period, an investor must submit Form I-829 to prove that his or her investment was fully at risk and that it created 10 qualifying jobs. If this form is not submitted on time or fails to prove the investor met all EB-5 requirements, the investor will lose his or her temporary Green Card.

TARGETED EMPLOYMENT AREA DESIGNATION

Most EB-5 investments are made in TEAs. The standard EB-5 investment amount is $1,050,000, but in TEAs, it is reduced to $800,000. Ultimately, TEA status is determined by USCIS. If an EB-5 investor invested $800,000 thinking the project was in a TEA but it is not, the investor's immigrant petition will be denied.

SUFFICIENT JOB CREATION

An EB-5 investment's success depends on the creation of 10 qualifying jobs. If the investor cannot prove that his or her investment created enough jobs, USCIS will not approve his or her I-829 petition.

FUNDS FULLY AT RISK DURING CONDITIONAL PERMANENT RESIDENCY

An EB-5 investment must be placed at risk—meaning it is invested in a project and can experience loss or gain. The investor must prove that the investment was fully at risk during the two years he or she has a conditional Green Card. If the investor fails to prove this, USCIS may reject his or her Form I-829.

FUNDS USED AS DESCRIBED IN FORM I-526E APPLICATION

An EB-5 investor's funds need to be used in the manner described in his or her original EB-5 immigrant petition. Any material change between Form I-526E and Form I-829 may result in an investor not getting a Green Card or losing the Green Card if successfully obtained.

What Questions Should You Ask to Evaluate Project Immigration Risk?

Every EB-5 project has its own unique risk profile based on several factors. Form I-956F approval addresses some, but not all, immigration risk issues.

To evaluate a project's immigration risk, you'll need to ask some key questions about the project and the entities involved.

DOES THE DEVELOPER HAVE A TRACK RECORD OF COMPLETING PROJECTS AND CREATING JOBS?

Best Answer: The project's developer has a long record of successfully completing projects. It has experience with the EB-5 program and has always created enough jobs for its EB-5 investors.
Worst Answer: The project's developer has no track record or has previously failed to complete a project. It has little experience with the EB-5 program or has failed to create jobs for EB-5 investors.

DOES THE EB-5 INVESTMENT FUND HAVE SAFEGUARDS IN PLACE TO ENSURE FUNDS WILL REMAIN AT RISK?

Best Answer: The EB-5 investment is structured to ensure that investor funds will remain at risk for the full duration of each investor's two-year period of conditional residence.
Worst Answer: The EB-5 investment could be paid back early and, if that were to happen, the fund has no plans to keep investor capital at risk.

HAS THE PROJECT'S LOCATION BEEN EVALUATED BY AN EXPERIENCED EB-5 ECONOMIST TO DETERMINE TEA ELIGIBILITY?

Best Answer: An experienced EB-5economist has provided clear documentation that the project is located in a TEA.
Worst Answer: The project has no separate verification that it is located in a TEA.

DOES THE PROJECT'S EB-5 REGIONAL CENTER SPONSOR HAVE A RECORD OF SUCCESS WITH USCIS?

Best Answer: The EB-5 sponsor has a proven record of providing investors with all necessary documentation for filing Form I-829. The sponsor has experience structuring EB-5 projects. It has obtained approval for all previous projects and has a pending or approved I-956F for the project.
Worst Answer: The EB-5 sponsor has no experience or has received denials from USCIS for past project petitions.

Get the Professional Help You Need

We encourage you to avoid high-risk projects when lower-risk options exist. One of the best ways to do this is to hire competent immigration counsel and other advisers as needed. These professionals can help you make informed decisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.