Understanding EB-5 Green Cards
The EB-5 category provides a green card opportunity for the entrepreneur who proves that they have made an investment of equity capital into a new commercial enterprise that will create at least ten full-time jobs. In March 2022, Congress passed legislation that re-authorized the EB-5 Regional Center program and set new investment minimums to qualify for the EB-5 green card, among other changes. Current minimums are $800,000 for projects in Targeted Employment Areas (TEA) and rural areas, and $1,050,000 for all other projects. TEAs are rural areas or those designated as having an unemployment rate of at least 150 % the national average.
There are two types of EB-5 investments, investment into a regional center and direct investments. To learn more about the regional center investments, please click here. This blog post will address direct investments.
The direct investment option is for entrepreneurs operating their own business in the United States. Entrepreneurs qualify for the EB-5 green card through investing in and operating their own business project and creating the required 10+ U.S. jobs through their investment. An important distinction is that the 10+ jobs created must all be “direct” jobs, which means direct employees of the investment enterprise.
With the long processing times of the Form I-526 applications (currently around 4 to 5 years to receive a response) plus the Form I-829 applications (currently around 5 to 6 years to receive a response), applicants often ask if they can move the addresses of the companies. Sometimes leases are up and the landlord does not want to renew, sometimes the lease is hiked that it no longer makes business sense to stay at the location. For workshare locations such as WeWork, it’s also common for the location to shut down and no longer lease out offices. And sometimes, the applicant moves homes and want the company to move with them. In these situations, can an address of a pending EB-5 project be changed.
The short answer is no. If possible, we strongly recommend keeping the address of the company the same throughout the years that the application is pending. The reason for this is because EB-5 applications are location specific. The business plan, job creation reports, and TEA letters are all issues and created for the area that the project is located in. Any changes to location of the project can be deemed as a material change by USCIS and be denied. Or, USCIS will request an amendment be submitted for the application where a new business plan, TEA information, and job creation information is submitted and they will re-adjudicate the application. This re-adjudication will happen regardless if the Form I-526 is approved or not.
A change in location can also cause a change in the TEA. With the new EB-5 regulations released in March 2022, TEAs are no longer determined by the State ahead of the application. Now, USCIS are the only entities who are able to determine if an area is a TEA. The applicant will not know ahead of time if USCIS will accept their unemployment data for a location. This would mean that if USCIS does not accept the new TEA, the applicant will have waited the additional time for the re-adjudication only to learn that their investment amount is no longer sufficient for the location. As such, it’s strongly recommended that the address of the project is not moved.
In situations where the address must be changed, the longer answer is it is possible to move the address of the company, however the new location of the company is very limited. The new address of the company should only be moved to an address that is within the same census tract of the previous location. Census Tracts are small, relatively permanent statistical subdivisions of a county or statistically equivalent entity that is determined by the Census Bureau. A census tract may change if there are large fluctuations in population of the location. However, they are only changed as needed by the decennial census, so once settled, they will remain relatively permanent for 10 years.
Movement within the same census tract is limited as census tracts are usually only a few miles wide and long. But, moving addresses within the same tract is possible and available for cases where the original building of the project is no longer available but the project will be kept in the same general location. The applicant can find a commercial lease within the same tract as the original location. Being in the same tract means that the project will have the same TEA information, job creation information, and will impact the business plan the least. Moving the address outside of the tract, outside of the county, or to another state is highly discouraged.
If possible, the best possible option is to keep the project in its original location until the permanent green card is approved. If absolutely need, the project can be moved, but only to a close location within the same census tract.
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