As more EB-5 regional centers and projects fail, and as more fraud is uncovered, I reiterate my long-held notion that the EB-5 Program calls for a "safe harbor" for investors. Consider this:
EB-5 investors have done everything the U.S. government has asked them to do. They have placed their capital "at risk" in an EB-5 investment project for the purpose of creation of jobs and have filed an I-526 petition with USCIS.
But what if the EB-5 investment project fails? What if the regional center fails? What if someone runs off to the Cayman Islands with investors' money? What if no jobs -- or not enough jobs -- for U.S. workers are created? What if the investors cannot prove their entire $500,000 was invested "at risk" in the EB-5 project because no accounting records exist? Most EB-5 investments use limited partnership, which means EB-5 investors have little or no control of the investment project.
A "safe harbor" would protect investors from deportion or removal, a harsh and unfair result currently of not proving the removal of the two "conditions" (1) that the full $500,000 was invested in the EB-5 investment project, and (2) that the project created 10 new jobs for U.S. workers. In the case of a regional center project, indirect and induced jobs may be counted as well.
But now, when investors are unable to prove that the two conditions were met, USCIS places the investors and their family members in deportation (or removal) proceedings. A very unfair thing to do to foreign investors who invested the money.
I urge Congress to pass a safe harbor provision to make the EB-5 Program fair and just for foreign investors.