Do not get too excited with the U.S. federal court ruling on EB-5 Green Card

A federal court in the USA has invalidated the final rule of the EB-5 visa, which called for increasing the minimum investment required for a commercial U.S. enterprise in a Targeted Employment Area from $500,000 to $900,000.

Post the judgment, Immigration lawyers and regional centers are approaching the prospective applicants to lodge their EB-5 applications against an investment of USD 500,000. However, no one should take any hasty steps and put their entire investment at risk for the following reasons:

• The court did not grant an injunction on reinstating the rule.
• What if the ruling is challenged in the coming days and decided in favour of the U.S. Government? What will happen to the filed applications if courts decided against the investment of USD 500,000/- in the future?
• What if it decided that this minimum capital investment requirement for getting a Green Card through the Immigrant Investor Program will remain at $900,000?
• There is no clarity, and it stays a grey area subject to the interpretation of USICS and U.S. courts. The amount of investment – even at USD 500,000/- is too large to take a risk. Remember that the application adjudication can take 3-5 years, and what may happen over such a long time frame is anyone’s guess.
• Post the investment, in case of any unforeseen situation detailed above, will the regional centre refund the invested amount of USD 500,000/-?
• The EB-5 reauthorization bill is still pending approval from the U.S. Senate, and for that reason, it may lapse on June 30 th , 2021. This may put the entire program in jeopardy.
• The documentation for the EB-5 green card application is very detailed and extensive. The steps taken in a hurry may mean refusal on technical grounds, irrespective of the investment amount.

In conclusion, if at all one is interested in applying for the US EB-5 Green Card, it is best to do so against minimum investment of USD 900,000/-. If the investment required is brought down to USD 500,000/- at a later stage, the applicants can file a supplement and demand a refund of the remaining USD 400,000/- from the regional centre.

Each of these approaches has immigration and investment risks, in addition to the specific risks of submitting an incomplete or incorrect application.

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So please be cautious and do not take investment steps, blinded by a thought of saving USD 400,000/-. It may or may not happen, and more importantly, the lost time in the interim can never be retrieved.