There are very many safe projects on the EB-5 market right now. These projects provide a terrific vehicle for EB-5 investors to first obtain their conditional green card so they can begin living in the US as soon as possible and later obtain their permanent green card so they can continue living in the U.S. for as long as they wish.
However, there is one category of EB-5 projects that raises huge risks for investors wanting to immigrate to the US through EB-5: real estate projects.
While real estate in the United States are a great long-term investment for non-EB-5 investors, experts around the United States agree that real estate projects are no longer suited to EB-5 both because of USCIS retrogression policies and because of possible changes to the EB-5 law. It is for this reason that many experts recommend that EB-5 investors avoid EB-5 real estate projects, and instead invest in EB-5 projects operating in other industry categories that can reliably obtain for investors their permanent green cards. Such reliable categories include hotels and manufacturing.
The following article highlights two major risks of investing in EB-5 real estate projects.
Risk No. 1: Real Estate Projects Face High Uncertainty Re: Permanent Green Card Approval Because Face Hurdles In Satisfying USCIS “Sustainment of Investment” Rules
The most notable risk raised by EB-5 real estate projects is that their EB-5 investors will not get their I-829 (permanent green card application) approved. USCIS policy states clearly that an investor’s 500,000 capital investment must remain invested in the job creating enterprise at the time the investor’s I-829 is adjudicated. However, most real estate developers will complete their project and sell it to a third party within three to four years. Once the real estate developer sells the project, the EB-5 investor’s money is no longer considered to be invested in the project; the money is instead simply sitting in the developer’s bank account and this does not qualify under USCIS rules for approving I-829 approvals. This is a significant new defect in EB-5 real estate projects; EB-5 investors who ignore it will still get their I-526 conditional green card application approved (because the above rule does not pertain to I-526 approvals) and therefore the EB-5 investor will be able to begin their life in the United States. But three or so years after they begin living in the US they will face the bad news that their I-829 application to convert their conditional green card into a permanent green card has been denied.
Investors should also beware of promises by developers not to see condominium projects. Most condominium construction projects require roughly 2-3 years to be built. When a developer completes a residential condominium project, the developer will almost always sell those condominiums as soon as they are complete, as new previously un-used apartments fetch high prices on the market. A developer would be very unlikely to choose to rent such apartments for a period of time, since renting an apartment tends to devalue the apartment and make it more difficult to sell for a premium price later on. A promise by a developer to a EB-5 investor not to sell the projects raises complicated legal questions that could very likely prevent any viable legal suit from being raised against the developer. Since this is the case, developers might be willing to make the promise even though the developer doesn’t plan on abiding by it. This is especially true because by the time the investor learns their I-829 has been denied, the developer will have long ago completed the project and sold it to a third party.
Typically, other types of projects don’t face this risk. Hotels, for instance, are usually built by developers who specialize in hotel management and typically keep their hotel properties. Likewise, EB-5 investment in manufacturing projects is typically invested into the manufacturing enterprise itself.
RISK No 2: Real Estate Projects Cannot Create Lots of Jobs and Therefore Are Unreliable Vehicles for Investors Trying to Obtain their Permanent Green Card Approval
In order to obtain your I-829 approval, an investor’s capital investment must be shown to have created a minimum of 10 full time jobs. This is usually easy for enterprises like factories, hotels and hospitals. These types of projects create jobs first by hiring workers to construct the relevant buildings, and then they further create jobs by hiring workers to operate as a commercial entity. Real estate projects, on the other hand, only hire workers for construction. Once construction is complete, they do not in most cases get to claim any operation jobs. Because of this, real estate projects do not create very many jobs, and they there must keep their EB-5 capital ratio low in comparison to non-EB-5 investment in the project. The problem with this is that Congress is now looking at ways to require that projects have high EB-5 ratios. If such bills are passed, real estate projects will face difficulty: on one hand, they cannot have too high of a EB-5 ratio because they don’t create lots of jobs; on the other hand, Congress might pass a law that effectively requires EB-5 ratios to be pegged at higher levels than real estate projects can support.
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