FAQs

Comparing EB-5 with Other U.S. Immigration Options

Differentiating EB-5 from E-2, L-1A, EB-1C, EB-3?

The EB-5 visa is a program designed for foreign investors to obtain U.S. permanent residency with full rights similar to U.S. citizens. It is the simplest and most straightforward legal immigration option for financially capable families, without requiring specialized skills. The EB-5 program is suitable for families planning to immigrate and can wait for about 3 years.

The E-2 visa is a temporary residency visa for citizens of countries with a Treaty of Commerce with the U.S. However, Vietnam currently does not have such a treaty with the U.S. Therefore, Vietnamese investors seeking E-2 visas need to obtain citizenship from a country that has a treaty first. Then, they must invest a “significant” amount in the U.S., at least 3.5 billion VND (150,000 USD). The investment process is simpler than EB-5. The highlight of E-2 is quick visa approval and easy proof of funds.

However, both the intermediary citizenship and investment for an E-2 visa will cost nearly as much as the EB-5 investment. Moreover, E-2 does not grant green cards for the family like EB-5. It is a fast option for children studying in the U.S., but obtaining green cards for the entire family can be quite difficult.

The L-1A visa is a temporary residency visa for high-level business executives transferring personnel to the U.S. To meet the requirements, investors must demonstrate:

• Having a company in Vietnam, and the company is large enough to expand international operations.
• Establishing a subsidiary company in the U.S. and needing to transfer high-level personnel from Vietnam to the U.S.
• When meeting the requirements, the applicant will be granted an L-1A visa to manage the subsidiary company in the U.S. The initial visa is valid for 1 year and can be extended. This program is very challenging, with a success rate of less than 50%.

The EB-1C visa is the next option after the L-1A visa to obtain U.S. permanent residency. After operating a business in the U.S. with an L1-A visa for 1 year and proving the efficient operation of the company, creating jobs, high revenue, etc., and having a need to continue to operate the business permanently, the applicant can submit an EB-1C permanent residency application. Similar to L-1A, this is also a very challenging program.

The EB-3 visa: This program is essentially an employment-based visa for jobs that cannot find local workers in the U.S.

To participate in this program, the following steps are required: The employer posts a job advertisement for foreign workers and proves that local workers cannot be found for the position. The employer needs to demonstrate compliance with U.S. regulations in terms of policies and wages.

If the above requirements are met, the employer will be certified to hire foreign workers. The worker can then apply to be selected. This is a labor visa program for manual jobs such as agriculture, janitorial work, and service industry jobs. However, there have been cases of exploiting this program for U.S. permanent residency without actually working. The U.S. government has discovered and restricted the issuance of visas for EB-3 applications. Currently, this program has been temporarily suspended until the end of 2020.

In summary, currently, the stable and convenient choice for obtaining a green card is still the EB-5 visa.

Source of Investment Funds

Can an investor use their current assets in the U.S. to apply for the EB-5 program?

Yes, it is possible. In the EB-5 program, the investor is required to invest a specific amount of money into an economic project or business that creates jobs for U.S. citizens.

This investment amount is usually $1.8 million (or $900,000 if the project is located in a targeted employment area).

If the investor already has assets in the U.S., they can use this money to meet the EB-5 investment requirement.

Can the investment capital for EB-5 be transferred to a spouse or child (derivative petition)?

Yes, it is possible. In the EB-5 program, the primary investor (principal applicant) can transfer the investment capital to their spouse or child through a derivative petition.

The recipients of the derivative petition will enjoy similar benefits as the primary investor, including the Green Card benefits.

After completing the EB-5 investment, can the capital be used for another EB-5 application?

Yes, it is possible, but it must comply with the regulations and requirements of the EB-5 program. When the investor completes the EB-5 investment from the initial project, they can use this money to invest in another EB-5 project, as long as the investment amount still meets the minimum investment requirement of the program.

How does Doha, Brown & Anderson Law Firm LLC assist investors in protecting their investment capital and ensuring capital return?

Doha, Brown & Anderson Law Firm LLC plays a crucial role in supporting investors in protecting their investment capital and ensuring capital return in the EB-5 program. Doha, Brown & Anderson Law Firm LLC often selects projects with potential and ensures that the investor’s investment is used efficiently and safely.

Doha, Brown & Anderson Law Firm LLC also ensures that the project meets the requirements of the EB-5 program and conducts necessary legal procedures to protect the investor’s rights and interests.

How to transfer investment funds into a project safely for the EB-5 application?
To transfer investment funds into an EB-5 project safely for the application, investors need to comply with the regulations and transfer procedures set by the EB-5 program and the investment project.

Specific steps may include using reputable channels for fund transfers, monitoring and tracking the funds to ensure they are used for the intended investment purpose, and keeping complete and accurate evidence of the fund transfers for the application submission.

Visa Quota

Can changing nationality avoid the visa quota for Vietnam in the U.S.?

Changing nationality cannot avoid the visa quota for Vietnam in the U.S. The visa quota is determined by U.S. immigration laws and applies to each country.

If a country has reached its visa quota, new visa applications from that country may face restrictions or longer waiting times. Changing nationality does not affect the visa quota of that country in the U.S. immigration program.

Investment Visa Risks

What are the risks of the EB-5 investment?

The biggest risks in the EB-5 investment immigration program are:

• Choosing a regional center (the entity that mobilizes and manages EB-5 funds from investors) with no experience in implementing EB-5 projects or lacking knowledge and experience in assessing and selecting qualified and feasible projects.
• The project not meeting the job creation requirements as required by the U.S. Immigration authorities, or the project using the investment capital for improper purposes.
• The investor’s source of investment funds cannot be sufficiently demonstrated as required by U.S. Immigration authorities.

Another risk lies in investors choosing lawyers or immigration firms with no experience in proving the source of funds. This is a mandatory and prerequisite requirement apart from the project to ensure the success of the application.

How to Ensure A Safe EB-5 Investment?

To ensure a safe EB-5 investment, investors need to consider the following three decisive factors:

• Regional Center: Investors should choose a regional center with established experience and reputation in various projects. Key figures such as approval rate, ability to recover funds, etc., can help assess the quality of the regional center.
• Importantly, the regional center must provide statistical data from the government on unemployment rate, population, etc., to demonstrate the TEA (Targeted Employment Area) qualification of the project.
• Immigration Lawyer: Investors need to select an immigration lawyer specialized in handling EB-5 applications and having abundant experience in the EB-5 investment field. The lawyer needs to have deep knowledge and experience in handling various cases such as providing supplementary evidence, filing appeals, etc.

In particular, they should be an independent lawyer (not affiliated with the project) to ensure no conflict of interest and to guarantee the highest protection of the investor’s rights. They can also represent the client in recovering the investment funds if the legal aspects of the project are unclear and not transparent.

Immigration Advisory Firm: Investors should choose an immigration advisory firm with established experience and reputation over the years.

The approval rate and transparency, along with dedication, are essential factors.

The immigration advisory firm, together with the lawyer, must have sufficient knowledge and experience in examining and evaluating legal documents, proving the source of funds, and other aspects of the project to ensure the success of the application and the safety of the investor’s capital.

Conditions for Targeted Employment Area (TEA) Designation

What is the new definition of TEA? How is the determination of a project meeting the TEA criteria done under the new law?

After the new regulations of the EB-5 program were implemented in November 2019, apart from the increased investment amount, there were also notable changes in the conditions for TEA designation.

Previously, projects would often receive TEA approval letters from city authorities to confirm their qualification for TEA status. However, under the new law, city authorities are no longer allowed to issue TEA certifications for projects. The designation of a project as a TEA can only be determined after the investor’s application has been submitted to the U.S. Citizenship and Immigration Services (USCIS).

As a result, TEA approval letters issued before the current time are no longer valid. Regardless of when they were issued, any TEA approval letters issued after November 21 are no longer recognized. All projects must comply with the new regulations.

Vì vậy, giấy phép TEA mà các dự án giới thiệu trước thời điểm hiện tại không còn có hiệu lực nữa.

To determine if a project qualifies for TEA status, the following criteria may be considered:

1. Unemployment Rate in the Area: The project must be located in a rural area or an area with a high unemployment rate.
2. Calculation of Project Coordinates: Previously, a project could use multi-sided geographic boundaries to calculate the unemployment rate. However, under the new law, a project can only use single-sided geographic boundaries.

For instance, in the past, a project located in the center of District 1 could consider the unemployment rates from nearby areas such as District 4, District 2, District 3, etc., and still qualify for TEA status. But under the new law, the project in District 1 can only consider the unemployment rate in the immediate vicinity of the project, which is limited to District 1 only.

To ensure a successful EB-5 application and the safety of your investment, investors should choose projects managed by reputable regional centers. The regional centers must have experience and a deep understanding of the law to correctly determine the TEA eligibility of a project.

Furthermore, investors should seek support from experienced professionals and legal advisors who can identify projects that meet the TEA criteria and have a higher chance of approval.

Dependents

In the case of a single investor. If the investor gets married during the preparation and waiting for the I-526 petition to be approved, can the spouse accompany them?

Yes, for the EB-5 immigrant investor program, the applicant has the right to add the spouse and children to the application at any time during the processing of the petition.

However, the applicant needs to provide additional documents such as marriage certificates for verification.

Should an EB-5 application be filed if the child is already 20 years old?

Even though the child’s age is locked at 20 years old, once the I-526 petition is filed with the U.S. Immigration Services, the period from the approval of I-526 to the receipt of the application from the National Visa Center (NVC) will be added to the child’s initial age.

This period usually takes 3-6 months, but it can be extended to several years if the number of applications from a country, such as Vietnam, exceeds the annual EB-5 visa quota for that country.

In this case, the age of the child on the petition may reach 21 years old, and thus, they will no longer be able to accompany the EB-5 visa application.

To assess the level of safety for a child accompanying the application, the investor should contact Doha, Brown & Anderson Law Firm LLC for detailed advice.

Should the investor choose the option: parents sponsoring an adult child or the child sponsoring the parents in the case of the child being an adult?

The investor should choose the option where the child sponsors the parents in the EB-5 investment. This option is easier and faster.

In the case where parents sponsor an adult child, often along with their spouse and children, the process will be more complex and time-consuming.

What is the impact of a spouse’s tourist visa denial on the investor’s EB-5 application?

There is no impact. The investor can still submit an EB-5 application even if the investor, spouse, or children had previously been denied tourist, family-based, or student visas.

However, the investor needs to adhere to the following conditions:

• Not exceeding the visa’s allowed time.
• Providing truthful information during the preparation of the application.
• Not violating any laws while in the U.S. under a nonimmigrant visa status.

During the application preparation process, the investor should disclose all relevant information regarding their criminal background, health condition, travel history, and immigration history to Doha, Brown & Anderson Law Firm LLC, the attorneys, and the project for pre-application advice.

The Main Applicant

Can a US student submit an EB-5 application with the investment amount being a gift from their parents?

Yes, there’s no problem with that. This is a quite common case, and many families have chosen this approach.

According to the law, only individuals over the age of 21 can be the principal applicant in the EB-5 program. However, there is a provision that allows individuals under the age of majority to be the principal applicant. This process may be a bit more complicated but can still be approved.

The amount of money gifted from the parents needs to be properly documented by the parents to allow the child to be the principal applicant.

After Receiving the Visa/Green Card

After receiving the immigrant visa, does the investor’s family have to come to the US immediately?

After receiving the immigrant visa, the visa for the investor and accompanying family is typically valid for about 6 months from the date of completing the medical examination.

For example, if the medical examination is completed one day before the visa interview, then the investor’s visa will be valid for about 6 months. The family needs to plan to arrive in the US before the visa expires to activate the visa and receive the green card.

Approximately 3 weeks to 1 month after arriving in the US and receiving the visa, the green card for the family will be sent to the attorney’s office or directly to the family.

After obtaining a green card to go to the US, is it necessary to live near the project?

Under the US Constitution, when someone has a US green card, they have the right to reside anywhere within the US territory. Therefore, after coming to the US, the investor does not need to live in the vicinity of the project. This is different from the L-1A visa, which requires high-level executives of the company to be near the company’s location for operation and management.

Do you need to stay in the US for at least a certain period in a year after coming to the US to ensure permanent residency status (not affecting the green card)?

The US does not have specific requirements for the time of residency after obtaining a green card. However, the law stipulates that the investor must show the intention to live in the US and maintain permanent residency status. This can be demonstrated by having a home in the US, having a business in the US, having children studying in the US, etc.

Furthermore, immigration experts recommend that the investor and family should not be absent from the US for more than 6 months in a year. If they stay outside the US for too long (more than 6 months), upon re-entry, they may be scrutinized by border officials at the airport. If they suspect that the investor does not intend to maintain permanent residency, they may refer the case to court for further investigation. From there, the investor may lose their green card.

If it is not possible to maintain such time and there is a need to travel frequently between the US and Vietnam, the investor should apply for a Re-entry Permit before leaving the US. This permit is valid for up to 2 years from the first issuance and allows the investor to be absent from the US for up to 2 years with a legitimate reason for the absence.

However, subsequent applications for re-entry permits after this period can only be extended for a maximum of 1 year.

Is global taxation required when becoming a US permanent resident?

Currently, Vietnam does not have a double taxation avoidance agreement with the US. Therefore, after coming to the US as a permanent resident, the investor is obligated to declare and pay taxes on all income both inside and outside the US. US Citizenship

How many steps are there in the process of obtaining US citizenship?

The process of obtaining US citizenship includes 10 steps as follows:

Step 1: Determine if the applicant is already a US citizen.

Step 2: Check if the applicant meets the requirements for applying for US citizenship.

Step 3: Prepare Form N-400, the application for naturalization.

Step 4: Submit Form N-400, relevant documents, and processing fees to the US Citizenship and Immigration Services (USCIS).

Step 5: Attend the biometrics appointment (fingerprinting).

Step 6: Participate in the naturalization interview: During the interview, the applicant will be asked questions by USCIS officers about Form N-400, take the naturalization test, and have their English language proficiency tested.

• Naturalization Test: It consists of 100 questions related to US history and government. During the naturalization interview, the applicant will be asked up to 10 questions from the list of 100 questions. To pass this test, the applicant needs to answer at least 6 out of 10 questions correctly.
• English Language Test: The applicant must demonstrate the ability to speak, read, and write in English during the interview.

For naturalization applicants, there are two opportunities to take the naturalization test. If they do not pass any part of the test on their first attempt, they will be retested on the portion they failed within 60-90 days from the initial interview.

Step 7: Receive the decision on the naturalization application from USCIS.

If the application is denied, USCIS will provide a clear reason for the decision. If the applicant disagrees with the decision, they can file Form N-336 to request USCIS to review the decision within 30 days from the date of denial.

Step 8: If the application is approved, the applicant will be notified of the date to attend the naturalization ceremony and take the Oath of Allegiance.

Step 9: Attend the naturalization ceremony and officially become a US citizen.

Step 10: Understand and abide by the rights and responsibilities of being a US citizen.
Request For Evidence (RFE) & Notice of Intent to Deny (NOID) in the EB-5 Process

When do EB-5 investors receive RFE/NOID?

During the process of reviewing an EB-5 investor’s application, the U.S. Citizenship and Immigration Services (USCIS) may request clarifications or additional evidence for the application. In case additional evidence is needed, USCIS will issue a Request For Evidence (RFE) or a Notice of Intent to Deny (NOID).

RFE/NOID can occur at any stage of the EB-5 application process, including the I-526 petition stage, National Visa Center (NVC) interview preparation stage, I-829 permanent resident application stage, and even the I-131 re-entry permit application stage.

However, the likelihood of USCIS issuing RFE/NOID is highest during the I-526 petition stage, which is also the longest processing stage (currently over 40 months) for an EB-5 application.

What is the difference between RFE and NOID?

RFE and NOID differ in the level of severity of USCIS requesting additional information/evidence to address the issues of concern in the application. When USCIS issues a NOID, it means the investor has only one chance to present and respond to the unresolved issues in the submitted application.

However, there are cases where USCIS may deny the application without issuing an NOID

So, if an application receives a NOID, does it mean the application is almost certain to be denied?

Not necessarily. If the response to the NOID satisfies the requirements specified in the NOID and is submitted within the given deadline, the application can still be approved.

What does receiving RFE/NOID signal for an EB-5 application?
Receiving RFE/NOID signals that the investor’s application has been reviewed and is in the final stages of adjudication, just before a decision is made. In other words, receiving RFE/NOID also means that the application is close to receiving a decision.

However, RFE/NOID also indicates that certain aspects of the application need clarification or additional evidence, documents, explanations, etc., as USCIS believes that these points have not been adequately addressed or proven. This is a critical time that determines the success or failure of the EB-5 application.

Response time for RFE/NOID

Investors must ensure to complete their response to the RFE/NOID, along with convincing evidence, before the specified deadline in the RFE/NOID. Typically, this deadline is 90 days.

NOID Duration

Is there any extension for the response time for RFE/NOID?
No, after the deadline stated in the RFE/NOID, if the investor cannot complete the response on time, the application will be denied.

What do RFE/NOID usually address?

RFE/NOID will address all the issues that USCIS needs the investor to clarify, explain, and provide additional evidence in the submitted application.

RFE/NOID may be related to the chosen EB-5 project, including the project’s business plan, job creation model, legal documentation of the project, capital structure, loan structure, etc.

RFE/NOID may also be related to the investor’s personal information, including discrepancies between the information provided in the application form and the information in the submitted documents (name, date of birth, place of birth, place of residence, etc.).

Furthermore, RFE/NOID may involve proving the lawful source of the investor’s funds, including improper accumulation of funds or lack of sufficient documentation for asset liquidation and fund transfer for investment.

What should be considered when analyzing RFE/NOID?

1. It is crucial to complete the response to RFE/NOID on time. Even if the application is fully supplemented, if the deadline is not adhered to, the response will not be considered, and the application will be denied. Therefore, investors must ensure strict compliance with the deadline and cannot request an extension.
2. Before requesting additional information/evidence or denying the application, USCIS conducts a detailed analysis of the points of concern in each type of submitted documents. Inconsistent, unclear, unconvincing, or unreasonable explanations are closely examined. Additionally, USCIS provides preliminary assessments and conclusions regarding the persuasiveness and legality of the application based on clearly defined immigration regulations.
3. Investors need to review all the previously submitted documents listed in the RFE/NOID to reevaluate the persuasiveness of the documents and explanations submitted before.
4. The request for additional evidence from USCIS is the most critical part of analyzing RFE/NOID, preparing for a comprehensive and persuasive response. However, this request is often presented in a general manner and is not limited to specific types of documents or information that the investor needs to provide.

What is the most effective strategy for responding to RFE/NOID?

Investors need to pay attention to the following points to understand the requirements of RFE/NOID and prepare for an effective response:

Strictly adhere to the deadline for completing the response to RFE/NOID, including establishing a clear timeline for preparation and providing documents as requested by USCIS.

Analyze each request for additional evidence from USCIS in detail, evaluate the persuasiveness of the explanations and previously submitted documents.

Prepare a complete and persuasive set of documents and explanations that adhere to each request from USCIS, without fabricating documents or providing false information.

Organize and present the documents clearly, in detail, and thoroughly corresponding to each item and each request from USCIS.

An effective strategy for responding to RFE/NOID will help ensure the success of the EB-5 application.