EB-5 investors must understand the benefits and nuances of concurrent filing and transferring money from their home countries, which are critical aspects of the EB-5 application process.
During a recent webinar hosted by EB5Investors.com, panelists Marjan Kasra from Lawmaks, Irina Rostova from EB-5 Support, and Kyle Walker from Green Card Fund shared invaluable insights on the critical actions for submitting an EB-5 application.
Introduced by the 2022 Reform and Integrity Act (RIA) of 2022, concurrent filing allows U.S. applicants to stay in the country while their EB-5 process progresses. They can obtain travel and work authorization while waiting for their I-526 petition approval.
This process must comply with U.S. fund transfer and EB-5 visa program regulations and restrictions. It is particularly critical for applicants because it is an aspect that will be rigorously reviewed when U.S. authorities scrutinize the source of funds for their investment.
The following key points will guide EB-5 investors in making the most of the opportunities concurrent filing provides and ensuring their money transfers comply with U.S. Citizenship and Immigration Services (USCIS) norms.
Understanding fund transfer regulations is a crucial aspect for EB-5 investors and their attorneys
Irina Rostova: There’s always change. A couple of years ago, the war started between Russia and Ukraine. That started changing the way the USCIS was looking at some of the funds coming out of those countries, mainly because different sanctions were implemented, and some restrictions were implemented in Ukraine. If you were trying to move funds out of Ukraine, you were restricted by the local government. If you were trying to move funds out of Russia it is possible that you were subject to sanctions, so it is very important to understand, both as a petitioner and as a lawyer.
We have continued to work with investors from Iran, despite the United States having stricter sanctions on activity with any Iranian citizens. A specific Office of Foreign Assets Control (OFAC) exception for potential EB-5 investors allows us to provide legal services and for the investors to come through. It applies across the board. Suppose you have a client from a country that has implemented internal restrictions on wiring funds, such as Ukraine or Venezuela. In that case, you need to familiarize yourself with those restrictions, maybe utilize local counsel to give you an opinion, and to show USCIS that your clients were able to transfer those funds without violating any of the local rules and local laws. And if you’re dealing with a country with some sanctions like Iran or Russia, then you, as an attorney, can go on the OFAC website and familiarize yourself with what kind of restrictions, because sometimes there are just limited restrictions against specific banks. So, if your client is not a client of that bank, you don’t need to worry about it or obtain special permission. If your client is a client of that bank and is transferring money from a bank that might be under sanctions, that still does not mean that your client cannot invest. It means that they have to ask for permission from OFAC. That’s when we’re talking about applying for a license. So, in the vast majority of cases, the U.S. Government does open up the door to lawful activity. You as an attorney, and you as a petitioner must find out what the rules that you’re supposed to be compliant with, and make sure that your transfers are compliant with those rules.
Investors from countries facing U.S. sanctions can apply for the EB-5 visa but must complete additional paperwork
Marjan Kasra: There’s been over 40 years of sanctions against Iran. The U.S. government decided, through the Office of Foreign Asset Controls, which is part of the Treasury Department in Washington, DC, to carve out a general license that allows Iranians to invest and participate in the EB-5 program, 31 CFR Part 560 for Iranian Transactions and Sanctions. That general license allows individual investors to participate in the program, and it is meant for regional centers to have comfort in accepting funds from Iran. Without that license, you could be participating in illegal activity, but having that general license allows you to receive funds from Iran. The OFAC has rules where if money passes through a third country because there’s no direct banking relationship with some countries, like Iran and Russia, then that money is legal. Any banking institute in the U.S. can transact in that fashion. More recently, they [USCIS] started issuing RFEs requiring bank statements from these [Managed Service Providers] MSPs, which are like mini banks. It becomes our job as immigration lawyers to push back. I obtain opinion letters from attorneys, which I have recently started to do, even though we don’t need to request a specific license from OFAC. To show that this is additional evidence from OFAC, which is the money watchdog.
Concurrent filing is particularly beneficial for foreign nationals who have been on a visa in the U.S. for an extended period
Marjan Kasra: It’s particularly good for individuals here on a long-term, nonimmigrant visa, like an H1-B, an F-1 or an L1. They can take advantage of the concurrent filing. As soon as we file the I-526 E for them, we can file their adjustment of status, which includes your green card application, work permit application and advanced parole (travel document). We’ve been seeing what we call “combo cards,” which give the ability to travel and to work within two to three months of the filing. It is good for many Indian and Chinese nationals who’ve been here for a very long time on an H1-B.
Individuals in the U.S. who file concurrently have more control over their adjustment of status than those who do it through a U.S. embassy or consulate
Marjan Kasra: If you’re in the U.S. on any long-term, non-immigrant visa, make sure you’re here for at least 90 days before you file any adjustment of status. You don’t have to go through the arduous consular processing. There’s this concept called consular non-readability. If the Embassy adjudicator doesn’t like your source of funds or anything like that, they can re-adjudicate an approved I-526. So, if you have the option of changing status inside the U.S., I highly recommend it because, as immigration practitioners and immigration lawyers. We have a lot more control if you’re inside the U.S.
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