12 July 2022: EB-5 wait-list-beating set-aside visas for new applicants

Frequently Asked Questions2022-09-16T12:44:10+00:00

EB-5 Investor Visa FAQs

Who may benefit from the new EB-5 rule’s priority date retention provision?2022-09-16T13:04:50+00:00

Investors who file a new Form I-526, Immigrant Petition by Alien Investor, on or after Nov. 21, 2019, may use the priority date of a previously approved Form I-526 petition, subject to certain conditions.

When would USCIS not allow the petitioner to use the priority date of a previously approved Form I-526 petition for a new Form I-526 filed on or after Nov. 21, 2019?2022-09-15T12:53:48+00:00

USCIS will not allow the petitioner to use the priority date of a previously approved Form I-526 petition for a subsequently filed petition if:

  • The investor was already admitted to the United States under section 203(b)(5) of the Immigration and Nationality Act using the priority date of the earlier-approved petition; or
  • USCIS revoked the previously approved petition for fraud or willful misrepresentation by the petitioner, or because the approval was based on a material error.
How can investors request an earlier priority date?2022-09-15T12:52:19+00:00

As part of their new Form I-526 submission, investors may provide USCIS with a statement requesting the earlier priority date along with a copy of the approval notice (Form I-797) for the previous Form I-526. Investors can request a duplicate copy of the earlier approval notice using Form I-824, Application for Action on an Approved Application or Petition.

What are the new minimum investment amounts that apply to EB-5 investors who file a Form I-526, Immigrant Petition by Alien Investor, on or after Nov. 21, 2019?2022-09-15T12:51:23+00:00

For investments outside of a Targeted Employment Area (TEA), the minimum investment amount increased from $1 million to $1.8 million. For investments in a TEA, the minimum investment amount increased from $500,000 to $900,000.  These amounts represent an adjustment based on inflation, as authorized by the law. Beginning on Oct.1, 2024, and every five years thereafter, these amounts will automatically adjust for petitions filed on or after each adjustment’s effective date, and DHS may update this figure by publication of a technical amendment in the Federal Register.

How does the new EB-5 final rule affect the minimum investment amount for investors who properly filed a Form I-526 petition before Nov. 21, 2019, but whose petitions were pending on the effective date of the final rule?2022-09-15T12:44:24+00:00

Investors who filed a Form I-526 petition before the effective date of the final rule may establish eligibility under the minimum investment requirements in effect when they filed the petition.

How does the EB-5 final rule affect the minimum investment amount for investors who filed their Form I-526 petition before Nov. 21, 2019, invested only a partial amount of capital, and are actively in the process of investing the remaining amount of capital?2022-09-15T12:42:56+00:00

These investors must meet the requirements in effect when they filed the petition—this includes the requirement to show they can meet the prior minimum investment amount of either $500,000 or $1 million by having either invested or been actively in the process of investing the required amount at the time of filing. Petitioners must show actual commitment of the required amount of capital at the time of filing but do not need to have fully contributed their capital investment to the new commercial enterprise before the effective date of the new rule—instead, they may be actively in the process of investing the minimum investment amount required under the prior rule.

If the principal investor’s derivatives (such as a child or spouse) were not included with the Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, and intend to file their own Form I-829, can they file together on a single Form I-829?2022-09-15T12:41:54+00:00

They can only file together if the investor is deceased. Otherwise, each derivative must file a separate Form I-829 petition. If the derivative is filing a separate petition from the investor, the derivative should attach a copy of the investor’s Form I-797, Notice of Action, relating to the investor’s Form I-829.

Does the new rule prohibit USCIS from adding a derivative to a pending Form I-829?2022-09-15T12:40:53+00:00

No, derivatives may still request to be added to a pending I-829 if they pay the biometric fee and are otherwise eligible to be classified as the principal’s derivatives. The new rule standardizes the process for those derivatives who file an individual Form I-829 petition and cannot be included on the principal investor’s Form I-829, generally because the principal fails or refuses to file a Form I-829.

Can principal investors include on their Form I-829 a child who reached the age of 21 or who married during the period of conditional permanent residence, or a former spouse who became divorced from the investor during the period of conditional permanent residence?2022-09-15T12:39:48+00:00

Yes.

E2 Non-immigrant Visa FAQs

Who May File for Change of Status to E-2 Classification2022-09-15T12:37:56+00:00

If the treaty investor is currently in the United States in a lawful nonimmigrant status, they may file Form I-129 to request a change of status to E-2 classification. If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 to request a change of status to E-2 classification on the employee’s behalf.

How to Obtain E-2 Classification if Outside the United States2022-09-29T12:38:42+00:00

If the treaty investor is currently in the United States in a lawful nonimmigrant status, they may file Form I-129 to request a change of status to E-2 classification. If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 to request a change of status to E-2 classification on the employee’s behalf.

General Qualifications of a Treaty Investor2022-09-15T12:27:07+00:00

To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation;
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
  • Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.  See 8 CFR 214.2(e)(12) for more information.

A substantial amount of capital is:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.

Marginal Enterprises2022-09-15T12:26:04+00:00

The investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins. See 8 CFR 214.2(e)(15).

General Qualifications of the Employee of a Treaty Investor2022-09-29T12:39:11+00:00

To qualify for E-2 classification, the employee of a treaty investor must:

  • Be the same nationality of the principal alien employer (who must have the nationality of the treaty country);
  • Meet the definition of “employee” under relevant law; and
  • Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country. These owners must either: (a) be maintaining nonimmigrant treaty investor status or (b) if the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.  See 8 CFR 214.2(e)(3)(ii).

Duties that are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the enterprise’s overall operation, or a major component of it.  See 8 CFR 214.2(e)(17) for a more complete definition.

Special qualifications are skills and/or aptitudes which make the employee’s services essential to the efficient operation of the treaty enterprise. There are several qualities or circumstances that could, depending on the facts, meet this requirement. These include, but are not limited to:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the United States.

Knowledge of a foreign language and culture does not, by itself, meet this requirement. Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.  See 8 CFR 214.2(e)(18) for a more complete definition.

Period of Stay2022-09-15T12:24:12+00:00

Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay in, or changes of status to, E-2 classification may be granted in increments of up to two years each. There is no limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E-2 nonimmigrant who travels abroad may generally be granted, if determined admissible by a U.S. Customs and Border Patrol Officer, an automatic two-year period of readmission when returning to the United States.

Terms and Conditions of E-2 Status2022-09-15T12:23:18+00:00

A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

  • Relationship between the organizations is established;
  • Subsidiary employment requires executive, supervisory, or essential skills; and
  • Terms and conditions of employment have not otherwise changed.

See 8 CFR 214.2(e)(8)(ii) for details.

USCIS must approve any substantive change in the terms or conditions of E-2 status. A “substantive change” is defined as a fundamental change in the employer’s basic characteristics that would affect the alien’s eligibility for E classification, such as, but not limited to:

  • A merger;
  • Acquisition;
  • Sale of the division where the alien is employed; or
  • Other event that affects the treaty investor or employee’s previously approved relationship with the treaty enterprise.

Where there has been such a substantive change, the treaty investor or enterprise, if it wishes to continue to employ the alien in E-2 status, must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty investor or affected employee. The Form I-129 must include evidence to show that the treaty investor or affected employee continues to qualify for E-2 classification. An employer who no longer employs an E-2 nonimmigrant is urged to inform USCIS of this upon termination of the E-2 nonimmigrant’s employment.

A treaty investor is not required to file a new Form I-129 to notify USCIS about non-substantive changes. A treaty investor or E-2 employee enterprise may seek advice from USCIS, however, to determine whether a change is considered substantive.  To request advice, the treaty investor or enterprise must file Form I-129 with fee and a complete description of the change.

See 8 CFR 214.2(e)(8) for more information on terms and conditions of E-2 treaty investor status.

A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty investor or employee’s ability to obtain E-2 status. See 8 CFR 214.2(e)(22) for details.

Family of E-2 Treaty Investors and Employees2022-09-29T12:39:30+00:00

Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty investor or employee. Spouses and children may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and are seeking changes of status to or extensions of stay in an E-2 dependent classification, they may apply by filing a single Form I-539, Application to Change/Extend Nonimmigrant Status, with fee.

Spouses of E-2 workers in valid E-2 or E-2S status are considered employment authorized incident to status, except for spouses of long-term investors in the Commonwealth of the Northern Mariana Islands (E-2 CNMI Investors) who are required to apply for employment authorization per 8 CFR 274a.12(c)(12).

DHS-issued evidence of such employment authorization, particularly that may be presented to employers for completion of Form I-9, Employment Eligibility Verification, include:

  1. An unexpired Form I-94 with a notation reflecting E-2S nonimmigrant status. As of Jan. 30, 2022, USCIS and CBP began issuing Form I-94 with a new admission code for certain spouses of E-2 workers: E-2S. An unexpired Form I-94 reflecting this new code is acceptable as evidence of employment authorization under List C of Form I-9.
  2. An unexpired Form I-94 with a notation reflecting E-2 nonimmigrant status, together with a notice from USCIS regarding the new admission code. USCIS will send E spouses with a Form I-94 issued by USCIS before Jan. 30, 2022, that was notated with E-2 nonimmigrant status and who are employment authorized incident to status, a notice regarding the new admission code that, together with an unexpired Form I-94 reflecting E-2 nonimmigrant status, serves as evidence of employment authorization for such spouses under List C of Form I-9. For more information, see this web alert.
  3. An unexpired Employment Authorization Document (EAD). E spouses who are employment authorized incident to status are not required to request employment authorization by filing Form I-765, Application for Employment Authorization, but may still file Form I-765, with fee, in order to obtain an Employment Authorization Document (Form I-766 EAD). Form I-766 EAD can be presented to employers as evidence of both identity and employment authorization acceptable under List A of Form I-9.
  4. An expired EAD with additional documentation to show the EAD is automatically extended (as discussed below).

Certain E spouses qualify for the automatic extension of their existing Form I-766 EADs if they meet the following conditions:

  • They timely filed a renewal Form I-765, Application for Employment Authorization, based on the same E nonimmigrant status; and
  • They have an unexpired Form I-94 showing their status as an E-2 or E-2S nonimmigrant.

Normally, DHS regulations provide for an automatic extension period of up to 180 days from the expiration date stated on the EAD. However, DHS has published a temporary final rule increasing the automatic extension period. Effective May 4, 2022, DHS is temporarily increasing the automatic extension period and providing up to 360 days of additional automatic extension time, for a total of up to 540 days, to eligible renewal applicants. The automatic EAD extension will therefore continue until whichever comes first:

  • The end date on the dependent spouse’s Form I-94 showing valid L-2 or L-2S nonimmigrant status, as applicable;
  • The date we approve or deny their application to renew the previous EAD; or
  • 540 days from the “Card Expires” date on the front of the previous EAD.

Additional information on the temporary increase of the automatic extension period is available on the Automatic Employment Authorization Document (EAD) Extension page.

Eligible E spouses may present the following evidence of the automatic EAD extension to employers for Form I-9 purposes:

  • Form I-94 indicating the unexpired E-2 or E-2S nonimmigrant status;
  • Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17)”; and
  • The expired EAD issued under the same category, Category A17.

As discussed above, the E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States. Unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, or the family members separately travel abroad and return to the United States within the new readmission period, the new readmission period will not apply to the family members. To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E status and apply for an extension of stay before their own validity expires.

Portugal Golden Visa FAQs

Portugal Golden Visa Investment Options2022-09-15T11:26:05+00:00

To be eligible for a Golden Visa in Portugal, you must make one of the following investments:

  • Purchase a property worth at least €500,000. If you purchase in a low-density area, the investment amount is €400,000.
  • Invest €350,000 in a property in a Portuguese urban regeneration area. If you invest in a low-density area, the investment amount is €280,000. The project should qualify for investment by the Portuguese Immigration and Borders Service – SEF.
  • Invest at least €350,000 in a qualifying Investment Fund. The investment options are regulated by the Portuguese CMVM (Securities Market Commission), and usually include venture capital investment in real estate or start-up tech companies.
  • Make a capital transfer of at least €1 million in a Portuguese bank account.
  • Purchase company shares worth at least €1 million.
  • Invest at least €1 million in a company.
  • Create at least ten jobs for Portuguese nationals.
  • Invest at least €350,000 for the creation of a commercial company or to reinforce the share capital of a commercial company, through which you create at least five full-time jobs.
  • Make a capital transfer of at least €350,000 for research activities in science or technology by either public or private scientific research institutions.
  • Make a capital transfer of at least €250,000 to support the arts or reconstruction of national heritage.
Who Is Eligible to Apply for a Golden Visa for Portugal?2022-09-15T11:24:52+00:00

To be eligible for a Golden Visa for Portugal, you have to fulfil the following requirements:

  • You must be over the age of 18
  • You must make a significant investment that is beneficial to the Portuguese economy
  • You must have no history of criminal records
  • You must own the money you seek to invest
  • You must commit to maintaining the investment for at least another five years
Can You Get Portugal Citizenship by Investment?2022-09-29T12:40:08+00:00

Yes, if you receive a Golden Visa, you become eligible for citizenship after five years. Unlike other countries, you do not actually need to live in Portugal during that period to acquire citizenship via the Golden Visa route. You only need to spend seven to fourteen days per year in the country.

However, you will have to prove you have accommodation in Portugal, a steady income, as well as knowledge of the Portuguese language, at least on a basic level.

How Long Do You Have to Live in Portugal to Maintain a Golden Visa?2022-09-15T11:19:51+00:00

To maintain your Portugal Golden Visa, you have to stay in the country for at least 7 days in the first year and then fourteen days in the following two-year periods.

Unlike other types of investment visas, you do not have to live in Portugal permanently in order to renew your Golden Visa or to receive permanent residence or citizenship.

What Taxes in Portugal for Golden Visa Investors?2022-09-15T11:18:37+00:00

If you are a non-resident: You are not taxed on income obtained abroad if you do not live in Portugal. As a non-resident, you only pay tax for income obtained within Portugal, such as from renting out real estate.

If you are a resident: If you are a resident in Portugal, then you have to pay tax on any income obtained abroad.

Taxable income in Portugal is considered:

  • Employment income.
  • Pensions.
  • Director’s fees.
  • Investment income.
  • Rental income.
  • Capital gains.

The tax rate in Portugal is from 14,50% to 48% (for income higher than €80,882). Rental income in Portugal is taxed at a flat rate of 28%.

Grenada Citizenship by Investment FAQs

May I apply for citizenship with my family?2022-09-29T12:40:40+00:00

Yes, you may apply for citizenship with your wife or husband, dependent children, and dependent parents. Fees for family members vary according to the number of family members included in a citizenship application.

Do I need to visit Grenada as part of the citizenship application process?2022-09-15T11:03:27+00:00

No, you do not need to visit Grenada before, during, or after the application process.

Must I renounce my current citizenship and passport to receive Grenadian Citizenship?2022-09-15T11:01:33+00:00

No, Grenada allows dual citizenship, and you thus do not need to renounce any other citizenship or passport.

When will I receive Grenadian citizenship following an application through the Citizenship by Investment Programme?2022-09-15T11:00:23+00:00

Your application for Citizenship by Investment will be approved within 60 business days of submission (subject to a satisfactory due diligence check and the funds being received). You may apply for a passport shortly after. Passports are issued within days of the request.

For how many years is a Grenadian passport valid?2022-09-15T10:59:04+00:00

All Grenadian passports are valid for five years.

How do I renew my passport once it expires?2022-09-15T10:57:44+00:00

Grenadian passports can be renewed in the Grenadian Consulate in London, or directly through the Grenadian Passport and Immigration Office.

How does Grenada being a part of the Commonwealth of Nations help me?2022-09-15T10:56:43+00:00

Being a citizen of a member of the Commonwealth of Nations brings several benefits. For example, you will be able to travel easily across member states, you will be protected by the embassies and commissions of other member states across the globe, and you will be eligible for certain sporting activities (the Commonwealth Games).

How is Grenada’s economic outlook?2022-09-15T10:54:41+00:00

Grenada’s economy is expanding in the tourism, agriculture, and manufacturing sectors. As part of the Easter Caribbean Central Bank and currency system, its currency is stable, secure, and tied to the United States dollar. Business can also be conducted in United States dollars. There are no taxes on the repatriation of profit.

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