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While the majority of the EB-5 Immigrant Investor Program’s participants make their investment from their home country, many applicants make their investment from within the United States. These applicants hold non-immigrant visas—such as the F-1 student visa or the H-1B work visa—and make an EB-5 investment to obtain U.S. permanent residency rights, allowing them to stay in the United States after their original visa expires.
Overseas EB-5 investors must apply through the National Visa Center and their local U.S. consulate or embassy. Those already living in the United States, however, skip the visa interview process. These investors are instead required to file Form I-485 to adjust their U.S. immigration status. As U.S. immigration is a complicated process, the adjustment of status process has previously meant that these foreign nationals have also had to submit Form I-944.
What Is Form I-944?
In February 2020, United States Citizenship and Immigration Services (USCIS) introduced Form I-944, which totals 18 pages. All foreign nationals requesting an adjustment of status were required to fill out this form, which was meant to ensure that the applicant would not burden the U.S. social welfare system. It required several documents related to the foreign national’s assets and finances, complicating the adjustment of status process and increasing the time necessary to complete it.
The Trump administration expanded the legislation to include more social welfare benefits, including federal housing assistance and Medicare. This expansion was met with several lawsuits alleging a federal law violation. These lawsuits ended up blocking the legislation, although the Trump administration filed an appeal which went to the Supreme Court.
On March 9, 2021, the Biden administration announced its stance against the appeal, declaring the complete elimination of Form I-944 for all adjustment of status applicants. As the U.S. government was no longer defending the initial regulation, the Supreme Court dismissed the pending appeals. This means that foreign nationals looking to adjust their immigration status do not need to worry about the self-sufficiency declaration any longer.
What this Means for EB-5 Investors
Many may think that an individual with the means to make an EB-5 investment would not be affected by this ruling. An EB-5 investment requires a minimum investment of $1.8 million—or $900,000, if the project is in a targeted employment area (TEA)—and a foreign national with access to such amounts of capital is unlikely to burden the U.S. social welfare system.
However, many EB-5 investors invest EB-5 investment capital donated by relatives. For instance, many parents gift their children the required minimum investment amount to pursue their own EB5 investment. Thus, investors may not be wealthy despite having enough funds to participate in the program. Many U.S. international students fall into this scenario, too, and the previous I-944 requirement created difficulties for some students who had applied through a state health insurance marketplace for health care subsidies.
Thankfully, domestic EB-5 investment participants can collectively breathe a sigh of relief following the Biden administration’s elimination of the I-944 requirement. As of March 9, 2021, I-485 petitions do not require Form I-944. Going forward, USCIS will disregard an adjustment of status applicant’s I-944 petition if an investor has already filed one.
