How to maintain eligibility for EB-5 Status in the Trump administration era

By Jennifer Hermansky 

EB-5 investors must take special care to maintain eligibility for the conditional and permanent green card.  The Trump Administration has stated that it will seek to remove aliens from the U.S. who have not maintained their status, who have worked without authorization, who have been arrested for certain crimes, and also those permanent residents who fail to maintain their residency in the U.S.  While the government always had the ability to seek to remove these individuals from the U.S., the Trump Administration intends to fully enforce these rules.    

On June 28, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” This Policy Memorandum was issued in response to President Trump’s Executive Order (EO), “Enhancing Public Safety in the Interior of the United States.” Investors pre– and post– conditional permanent residence (CPR) must maintain eligibility for both the two-year green card and the permanent green card. 

MAINTAINING ELIGIBILITY FOR CPR AFTER I-526 APPROVAL BUT BEFORE CPR STATUS IS GRANTED 

During any period of visa backlog occurring in between the time of I-526 Petition approval and when the investor’s priority date becomes current, EB-5 investors must maintain eligibility for the two-year green card.  At the I-526 Petition approval, the EB-5 investor has established his or her ability to immigrate to the U.S. pursuant to their investment.  However, at the time of the immigrant visa interview abroad or adjustment of status in the U.S. (when the priority date is current), the EB-5 investor and each dependent must prove continued eligibility for the two-year green card.  Common grounds of ineligibility include failure to maintain nonimmigrant status in the U.S., criminal arrests or convictions, and misrepresentations on U.S. visa applications. 

First, EB-5 investors and/or their dependent family members who may be in the U.S. in nonimmigrant status must be careful to maintain that nonimmigrant status.   Failure to maintain valid nonimmigrant status or working without authorization can lead to removal from the U.S, thus subjecting the nonimmigrant to a 10-year bar from the U.S.  It also can lead to ineligibility for the conditional green card.  This is particularly important for students in the U.S. in F-1 status.  Students must be careful to continue studies pursuant to the forms issued by the school.  Also, students cannot work without permission.  Students can only work pursuant to curricular practical training (CPT) or optional practical training (OPT) or part-time, on-campus employment.  Even unpaid internships, volunteer work, or work for a foreign-based employer while in the U.S. can be considered “employment,” and thus he or she must check with the school to see if the activity is permitted under the student status.   

Importantly, the Trump Administration recently changed certain rules as they apply to foreign students.  An F, J, or M nonimmigrant begins accruing “unlawful presence,” due to a failure to maintain his or her status on or after August 9, 2018, if the student no longer pursues the course of study or engages in unlawful employment.  Any EB-5 investor or dependent who accrues more than 180 days of unlawful presence is thereafter barred from entering the U.S. in any category, including on a green card, for three years.  Any EB-5 investor or dependent who accrues more than 365 days of unlawful presences is thereafter barred from entering the U.S. in any category, including on a green card, for ten years.  For students who end the course of study and remain in the U.S. or who work without authorization, unlawful presence can start to accrue, which bars him or her from applying for adjustment of status after the I-526 is approved.  Moreover, the Trump Administration can seek to remove from the U.S. a foreign student who accrues unlawful presence. 

For EB-5 investors, or their dependents, in another nonimmigrant status in the U.S., such as H-1B or H-4, L-1 or L-2, and E-1 or E-2, changes to employment can affect the underlying nonimmigrant status.  Changing employers, location of employment, wage rate and/or position can have an effect on whether the investor is maintaining proper status in the U.S.  Failure to maintain lawful status in the U.S. can lead to the commencement of removal proceedings and ineligibility for the EB-5 green card. 

In addition to maintaining status in the U.S., President Trump’s Executive Order, prioritizes removable aliens who have been convicted of any crime, or who have been charged with any criminal offense, even if there is no formal conviction yet. It is very important for EB-5 investors to understand that a criminal conviction is not required for USCIS to start the removal process for an EB-5 investor or any of his or her dependent family members.  Any arrest or conviction that occurs during any period of visa retrogression, during or after I-526 Petition approval, while the investor and dependents are waiting for the immigrant visa interview, can impact the issuance of the immigrant visa by the Consulate or the approval of an adjustment of status on Form I-485 by USCIS.   

Finally, it is very important for EB-5 investors to be truthful on all visa applications to the U.S.  During a period of visa backlog, it is common for investors to wish to travel to the U.S.  Any visa applications filed by the EB-5 investor or the dependent family members must be filed accurately and with truthful information.  The investor should be careful to disclose the filing of any Form I-526 Petition on a nonimmigrant visa application.  Additionally, all arrests and convictions must be disclosed, and all employment, academic and residency questions must be answered truthfully and consistently with the I-526 Petition.   

EB-5 investors and their dependents should note that obtaining a B visitor visa to give birth to a child in the U.S. can be used as a basis to deny the green card at the immigrant visa interview by the U.S. Consulate or AOS on Form I-485 by USCIS.  Also, an EB-5 investor should never enroll their children in school in the U.S. on a B visa, as this can result in a finding of permanent ineligibility on the part of the parent.   

With the Trump Administration’s enforcement of these rules, it is very important for investors to maintain eligibility for a green card. It may be years between the approval of an I-526 Petition and the immigrant visa interview or adjustment of status.  Any failure to maintain status, criminal arrest or conviction, or misrepresentations that happen in the intervening years before the two-year green card is issued can negatively impact the investor’s eligibility to continue in the EB-5 process. 

MAINTAINING ELIGIBILITY FOR THE PERMANENT GREEN CARD  

When the EB-5 investor and his or her family members get the two-year green card, it is very important that the investor and the family maintain that permanent residence.  Even after receiving the conditional green card, it is possible for USCIS to seek to remove the investor from the U.S. if he or she failed to maintain the residency in the U.S., commits certain crimes, or takes certain public benefits.   

Spending significant amounts of time outside the U.S. is a serious problem for any permanent resident, including EB-5 investors.  Therefore, EB-5 investors and their dependent family members should spend as much time as possible physically present in the U.S.  Generally, permanent residents of the U.S. should be spending at least six months a year in the U.S.  This time can be cumulative; it does not need to be in just one entry to the U.S.  If it is not possible to spend six months a year in the U.S., investors should consider obtaining a re-entry permit from USCIS, which acts as advanced permission from USCIS to spend significant periods of time outside the U.S.  Investors must understand that USCIS has access to the travel history of the EB-5 investor and his or her dependent family members, and can inquire about prolonged absences from the U.S. in the course of deciding the I-829 Petition. 

Moreover, EB-5 investors should be maintaining a residence in the U.S., either through the purchase of a home or renting an apartment.  This is very important at the I-829 Petition stage, as the form I-829 asks the EB-5 investor’s address and residency history.  If an investor is not maintaining an actual residence in the U.S., the USCIS can inquire about whether the investor is maintaining permanent residence, and even try to terminate such status if the investor fails to maintain a residence and spend time in the U.S.  Investors also should maintain bank accounts, credit cards and investments in the U.S. to show financial ties.  

Additionally, the Trump Administration has stated that it intends to interview all applicants for green cards, which would include EB-5 investors and their family members applying for permanent green cards on form I-829.  During any I-829 petition interview conducted by USCIS, the officer can ask the EB-5 investor and his or her dependents regarding their residency in the U.S. and their travel history during the two years of conditional residency.  Extended absences from the U.S. and lack of ties to the U.S. could result in a denial of form I-829.    

It is also absolutely critical for EB-5 investors to understand that the principal applicant, the EB-5 investor, must maintain his or her CPR status to protect the dependent family members.  If the EB-5 investor is found to have abandoned his or her residency in the U.S., the dependent family members have no basis to file form I-829 without the investor.  Likewise, a criminal arrest or conviction of the EB-5 investor can result in loss of permanent residence to the investor, and also his or her family members.  The dependent family members generally must rely on the EB-5 investor’s continued eligibility for the I-829 petition.  Importantly however, dependents also must maintain residency in the U.S. and avoid any criminal activity. 

The Trump Administration also has stated that USCIS will start removal proceedings for any conditional permanent resident or lawful permanent resident who has abused any program related to receipt of public benefits.  EB-5 investors and their family members should not accept government assistance in the form of Supplemental Security Income (SSI) under Title XVI of Social Security Act, Temporary Assistance for Needy Families (TANF) cash assistance, State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs), or Programs (including Medicaid) supporting individuals who are institutionalized for long-term care. 

It is absolutely critical for EB-5 investors to understand that the Trump Administration is attempting to expand the list of government benefits that could lead to a public charge finding. Specifically, the Administration is trying to expand the list of prohibited government benefits to include Medicaid, subsidized Obamacare, food stamps, tax credits or other non-cash government benefits. Acceptance of these types of government aid could lead to an I-829 Petition denial. 

In conclusion, EB-5 investors must be careful to maintain eligibility for both the two-year conditional green card and also the permanent green card. Failure to maintain nonimmigrant status, criminal arrests or convictions, or misrepresentations on visa applications can cause an EB-5 investor and/or a dependent applicant to lose eligibility for the two-year green card. For those EB-5 investors who have received the two-year green card, the investor and his or her dependent family members must maintain a residency in the U.S., pay taxes when required, avoid public benefit programs, and avoid all criminal activity to maintain eligibility for the I-829 petition. Under the Trump Administration, investors should expect for USCIS to look closely at the investor’s personal background and closely examine the investor and dependent’s continued eligibility for EB-5 benefits.