Tag Archives: investor visa

EB-5 Processing Issues During COVID-19

The American Immigration Lawyers Association (AILA) has a monthly check-in with Charlie Oppenheim, Chief of the Visa Control and Reporting Division at the Department of State. During the August exchange, Oppenheim addressed EB-5 processing issues during the COVID-19 pandemic. We have already seen long processing times, even as the Visa Bulletin advances for previously backlogged countries like India.

Documentarily Qualified Cases Held at NVC

Oppenheim mentioned that a large number of Mainland China-born EB-5 investors were “not documentarily qualified.” This means that EB-5 cases never left the National Visa Center (NVC) and forwarded to the Consulate because NVC checklists or fee payments are outstanding. It was also noted that as a result of the pandemic and the temporary suspension of routine visa services at embassies and consulates, NVC paused shipments of cases. NVC will resume shipments at the request of the embassies and consulates as they assess local conditions and capabilities.

Some EB-5 investors are asked to provide civil documents that were previously uploaded to ASK NVC. You may avoid duplicate requests by uploading all documentation to NVC Electronic at one time. New applications or document requests may occur if a case goes into termination, such as when filing dates retrogress. Documentarily complete cases should restore to that state when the date becomes current again.

NVC Questions

Documents are to be submitted only through the NVC electronic portal. The Ask NVC electronic form is still available to accept questions, but due to the COVID-19 pandemic a statement cautions that NVC is working with reduced staff and requests that only urgent medical or humanitarian inquiries or necessary case updates for pending cases be submitted. Individuals with general questions such as case status and document lists are directed to log in to the Consular Electronic Application Center.

NVC Timelines

Many EB-5 applicants have waited 4-5 months for fee bills to be issued. Please note that a fee bill will not be issued until the case is current. After the visa bulletin is updated each month, the fee bills will be sent within a few days to those with current priority dates. If you receive a notice that NVC has received your case, you should notify the office of any dependents using the NVC Public Inquiry Form. While the current Form I-526 has a place to list derivatives, many EB-5 applicants filed using an older version of the form, requiring those individuals to add on dependents at a later stage.

Do you have questions about the EB-5 program? Contact us at info@challalaw.com to explore how your investment could earn you and your family green cards in the U.S.!

RESUMING SEPTEMBER 16, 2020: Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

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August 2020 EB-5 Investor Updates

EB-5 Investor Updates

Processing Delays: 56%-67% Increase in Estimated Timelines, but the Visa Bulletin for India is CURRENT!

In May 2020, the estimated processing time frame for Form I-526 was 29.5-44.5 months but we saw an increase in the upper limit in June: the estimated time was 29.5 to 61 months for adjudication. In July there was another huge jump, showing processing times to be between 46 to 74.5 months, only allowing for case inquiries for cases filed before June 9, 2014.

The lower limit estimated processing time increased 56%, while the upper limit increased over 67% between June and August.


It is unclear whether this delay is due to the shift away from the FIFO or first-in, first out processing approach taken in March of this year. The agency switched to a visa availability approach to consider I-526 petitions where visas are immediately available or will be available soon. Currently the per-country cap established by Congress limits individuals from a single country to receiving no more than 7 percent of an employment-based visa allocation (unless the numbers would otherwise go unused).

Recent Regional Center EB-5 Approval Received in 28 Months


Some have predicted that USCIS was receiving many case inquiries and decided to move the receipt date for a case inquiry backward to “catch up” on processing. We recently had an EB-5 approval in June for a case that was filed in February of 2018 for an Indian citizen. It is unlikely USCIS is actually processing cases from 2014.

Children Nearing the Age of 21?

The Child Status Protection Act went into effect in 2002, allowing certain applicants to maintain their age for immigration purposes. If a parent files in the EB-5 category, the child may be able to take advantage of the permanent residence application. For the EB-5 category, a child’s age “freezes” on the date that the I-526 is filed and then begins counting again after the approval.

Email us at info@challalaw.com to get started on your family’s immigration journey!

Checking Case Processing Times

To check current processing times, go to https://egov.uscis.gov/processing-times/

Click on the Form dropdown box to select I-526, Immigrant Petition by Alien Entrepreneur. On the Field Office or Service Center dropdown menu, select Immigrant Investor Program Office, then click the Get processing time button.

Scroll down to see the estimated time range, as well as the receipt date for a case inquiry.

Your receipt number and receipt and priority dates can be found on your I-797 receipt notice.

Checking Your Case Status

To check on the status of your case, go to: https://egov.uscis.gov/casestatus/landing.do and enter your receipt number. Click on the Check Status button.

Visa Bulletin Progress: India is Current

Despite the processing delays, we have seen significant progress in the EB-5 category. Applicants from China are still subject to a long wait, with the priority date stuck in August of 2015. Similarly, Vietnam shows a priority date of July 22, 2017. We are finally seeing the EB-5 priority date for India as current.

Contact us at info@challalaw.com to discuss how to start your EB-5 green card process today!

Presidential Proclamation Update

The president’s recent proclamation suspending immigration for 60 days applies to individuals outside of the U.S. who receive green card approvals after the effective date of April 23, 2020. However, due to the importance of continued investment and job creation, the EB-5 program is specifically excluded from this order. The order also does not apply to individuals adjusting status from within the U.S. For complete details and exemptions, read our recent post on the Challa Law Group website.

Additional COVID-19 UpdatesU.S. Citizenship and Immigration Services temporarily suspended in-person services at its field offices, asylum offices, and Application Support Centers (ASCs) to help slow the spread of Coronavirus Disease 2019 (COVID-19). USCIS offices are open, but some consulates and embassies are operating on limited basis as conditions necessitate. Emergency services can still be requested.

Review some of the recent COVID-19 updates for employers and foreign workers:

RESUMING SEPTEMBER 16, 2020: Join us on Wednesdays for a live webinar at 12 PM ET for critical immigration updates

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list.

Contact Challa Law Group

E-2 Treaty Investor Visa Available to Citizens of Israel

On May 1, 2019, the E-2 visa will be extended to Israeli citizens for the first time. The E-2 Treaty Investor is a nonimmigrant visa that allows an individual to invest in a U.S. business and then enter the U.S. to develop and direct the business. The E-2 visa holder must demonstrate a minimum of 50% ownership of the enterprise or “operational control through a managerial position or other corporate device.”

While roughly the same size as the U.S. state of New Hampshire, Israel boasts a successful high-tech industry. According to the U.S. Embassy website for Israel:

“U.S. firms have been a big part of the Start-Up Nation story, with U.S. companies establishing two-thirds of the more than 300 foreign-invested research and development centers in Israel.  Israeli firms, meanwhile, represent the second-largest source of foreign listings on the NASDAQ after China – and more than Indian, Japanese, and South Korean firms combined.”

Similar to the EB-5 investment requirements, the E-2 requires the investor’s funds to be “at risk” or subject to loss if the investment is not successful. Unlike the EB-5 Immigrant Investor visa, the E-1 and E-2 visas allow foreign nationals of certain treaty countries to invest in the United States without a set minimum investment, as long as the investment meets several criteria to determine if it is substantial.

In addition to the substantiality test, the enterprise must exceed the marginality test and the E-2 visa applicant must be in a position to develop and direct the enterprise, through special qualifications that make the employee’s services essential to the efficient operation of the business.

Visit our website for an introduction to the E-2 Treaty Investor visa and determine if your intended U.S. investment plan meets the E-2 requirements. Contact us at info@challalaw.com if you have any questions.

An Introduction to the E-2 Treaty Investor Visa: Marginality, Substantiality, Essentiality & Other Key Tests

The E-2 Treaty Investor visa allows an individual to invest in a U.S. business and then enter the U.S. to develop and direct the business. The E-2 visa holder must demonstrate a minimum of 50% ownership of the enterprise or “operational control through a managerial position or other corporate device.” Similar to the EB-5 investment requirements, the E-2 requires the investor’s funds to be “at risk” or subject to loss if the investment is not successful.

Essentiality of E-2 Employee

The E-2 visa also emphasizes that an applicant should have “special qualifications” or “skills which make the employee’s services essential to the efficient operation of the business.” The application must demonstrate that the individual not only that possesses the necessary special qualifications, but also establishes the length of time those skills may be needed for the successful and efficient operation of the U.S. enterprise. This essentiality of the potential E-2 employee may be measured by:

  • 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.

Impact of U.S. Workers

While the E-2 visa does not require a labor certification from the Department of Labor, USCIS does take into consideration the availability of U.S. workers when determining the degree of specialization and essentiality of the employee to the business. For example, an individual bringing a new technology to the U.S. may have specialized skills directly relating to the manufacturing, sales, and distribution of that technology, qualifying him or her for an E-2 visa. Additional evidence to support this narrative could be requested from U.S. labor organizations, industry trade groups, local or state chambers of commerce or other organizations with access to data on labor availability. It is important to note that there is no regulatory requirement that an essential employee have previously worked with the E-2 treaty enterprise. The only instance that previous employment has an affect on the application, is if the claim is being made that the necessary skills can only be obtained through that particular employment.

Short Term vs. Long Term Essentiality

When crafting the narrative of your E-2 visa application, we will consider your intended involvement in the ongoing operations of the U.S. entity. There may only be a need for the E-2 employee to come to the U.S. for a short period of time to direct the start-up operations or to train and supervise employees with specialized functions. For a short term need, the application might demonstrate that an employee is essential based on his or her knowledge with overseas operations or technologies. Evidence should demonstrate that these short-term employees are initially involved in the effort to train U.S. workers within a year or two as their own replacements.

The E-2 visa can be granted at a maximum initial stay of two years, but is renewable in various time increments depending on the nature of the underlying treaty with the country of the visa holder. Since there is no maximum limit to the number of extensions that can be granted, many business owners utilize the E-2 for a longer-term stay to continue to direct the enterprise. As long as the application demonstrates the individual has special qualifications that require his or her continuous presence in business activities, such as product development or providing a service not commonly available from U.S. workers, there is no requirement for training a U.S. worker replacement.

Case Study: Matter of Walsh and Pollard

In the 1980s, General Motors needed automotive engineers to design a new fleet of vehicles. After first attempting to meet their labor needs within the U.S., the company realized an additional need for engineers and turned to overseas for help. A British contractor made an investment as part of a strategy to open a U.S. office and then funnel designers for GM’s temporary labor needs using E-2 visas and establishing the designers’ essential skills. After the visas were approved, the then-INS (Immigration and Naturalization Service, now part of USCIS or United States Citizenship and Immigration Services) denied the engineers when they attempted to enter the U.S. The case made it to the Board of Immigration Appeals (BIA), which ruled on two key aspects of the E-2 visa:

  1. A small investment does not preclude the issuance of an E-2 visa as long as it is sufficient to “establish a viable enterprise of the nature contemplated” and
  2. The applicants whom were “highly trained, specially qualified, and essential to the corporation’s efficient operation” were qualified for the E-2 visa despite the fact they were not involved in “developing and directing the qualifying investment.”

The BIA determined that the automotive engineers had essential skills necessary to the long-term success of the enterprise and that the employees were not replacing U.S. workers in the near future, due to the extensive training that would be required to match the designers’ level of specialized skills.

Substantiality of the Business

The Foreign Affairs Manual points out some key aspects of the case when determining whether the business might meet the substantiality test, stating that “sometimes an investment of only a small amount of money might meet the requirement.” There is no standard investment amount, but the investment must meet the following:

(1)  Substantial in a proportional sense, as determined through the application of the proportionality test outlined below;

(2)  Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and

(3)  Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

Proportionality of the Business

               The substantiality of the business is partly determined by using the proportionality test by weighing the amount of funds invested against the total cost of the business. The Foreign Affairs Manual describes the appropriate investment as an inverted sliding sale, with lower cost business requiring a higher percentage of the investment and a higher cost business requiring a lower percentage of qualifying investment. The manual also defines the cost of an established business as its purchase price and the cost of a new business is the sum of costs required to establish an operational business. When applying for the E-2 visa, this figure includes the investments already made and the estimates for the additional assets needed to run the business.

Marginality of the Business

The EB-5 visa clearly outlines the required job creation for visa attainment, but the E-2 visa applicant must prove that the investment is not in a “marginal” enterprise, i.e. the business must have the present or future capacity to generate income above that for the treaty investor and his or her family. This capacity to make a “significant economic contribution” should be “realizable within five years from the date the alien commences normal business activity of the enterprise,” according to the Foreign Affairs Manual.

Contributions of E-2 Visa Holders

As with any nonimmigrant or immigrant visa, the fundamental premise of the E-2 visa is that individuals who are granted these visas will provide value to the United States. For investment-type visas, often this value is quantified by the number of jobs created or the monetary contribution to the U.S. economy. While there are no specific numeric requirements for job creation or continued investment levels, an E-2 renewal application that demonstrates these accomplishments is more likely to establish the essentiality of not only the employee to the enterprise, but of the enterprise to the continued economic health and growth of the United States economy.

Request a copy of the E-2 qualifying countries by emailing us at info@challalaw.com.