[Cross-Border Legal Affairs] U.S. Investment Immigration Closing in September: 'Provable Funds' Are Key

Foreign attorneys Kim Mi-a and Ahn Jun-yong, together with customs specialist Myung Jae-ho (Daeryun Law Firm), bring you cross-border legal affairs news.

Amid growing uncertainty in U.S. immigration policy, demand for U.S. investment immigration (EB-5) is increasing as a means of obtaining permanent residency without relying on an employer sponsor or a visa lottery. EB-5 is a system in which one can receive permanent residency by investing a certain amount in a U.S. business and creating jobs; when investing in a specific area such as a rural region (TEA), the minimum investment is 800,000 dollars. Among these, indirect investment through a government-designated Regional Center is the most widely used method in practice, and this Regional Center program is a time-limited system with congressional authorization through September 30, 2027.

Attention to the grandfathering clause…the existing deadline is this September

Consequently, in practice we are often asked, "Isn't there still time until 2027?" But the real reference date investors must mind is separate. September 30, 2027 is merely the program's own authorization expiration date; to have the current conditions (such as the 800,000 dollars) guaranteed as they are, one must act by the 30th of next month, a year earlier. What divides this date is precisely the 'grandfathering' clause that protects existing investors.

Under the grandfathering clause introduced in 2022, an investor who files a petition (I-526E) by the 30th of next month can be reviewed under the rules in effect at the time of filing, even if the system changes afterward. In other words, that date is not a simple filing deadline but the last reference date on which the current conditions can be preserved as they are.

If an I-526E is submitted after that date, the filing will not be rejected, but if Congress does not extend or reauthorize the Regional Center program by its expiration date of September 30 next year, the Regional Center program will terminate on September 30 next year. Also, an I-526E under review as of that date (an I-526E submitted after September 30, 2026 and before September 30, 2027) will be held indefinitely until Congress takes separate action. In that case, the investor would be placed in a state where enormous funds are tied up, so considering this, the 30th of next month is a cut-off (deadline) that must not be missed.

The background making this reference date even more important lies in recent sweeping changes across U.S. immigration policy. This past June, the U.S. Supreme Court issued major rulings surrounding Temporary Protected Status (TPS) and border policy, and discussions on restricting birthright citizenship are also ongoing. U.S. Citizenship and Immigration Services (USCIS) has also, since last month, been more strictly verifying the authenticity of applicants' signatures and submitted documents. As the system changes this rapidly, the completeness of preparation, rather than the speed of filing, has become the crux.

Source of funds, application documents, project…the 3 keys to obtaining permanent residency

So what must investors check? The crux is largely the source of funds, the application documents, and the project.

First, the field where the most Requests for Evidence (RFE) actually arise in review is the Source of Funds. USCIS focuses its review not on the size of the investment but on how the funds were formed and through what path they were used as investment funds. For proceeds from a real estate sale, the flow from acquisition to sale, tax payment, and remittance must be connected, and for gifted funds, there are cases where even the gift giver's fund-formation process must be explained. In the end, what matters is not the size of the investment but its provability.

Management of application documents is equally important. Errors in preparation or an invalid signature can be grounds for delay or denial of review. Since spouses and children often apply together, the documents of family members must also be managed consistently.

The project must be examined from both the permanent residency and investment perspectives. It is advisable to comprehensively examine the job-creation structure, collateral, repayment sources, and the developer's business execution capability, and, for a public infrastructure project, to also confirm the role of government agencies and the structure for recovering the investment.

Implications

U.S. investment immigration is a long-term legal process lasting several years—far more than a procedure that ends once the investment is remitted—from demonstrating the source of funds to immigration review, removal of the conditional permanent residency, and recovery of the principal. In the end, the one who produces results will not be the one who files fastest, but the investor who prepares funds, documents, and the project flawlessly in accordance with U.S. immigration standards.

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[Cross-Border Legal Affairs] U.S. Investment Immigration Closing in September: 'Provable Funds' Are Key (Go to link)