EB-5 Process questions in India

Top 5 Questions from Indian Investors Concerning the EB-5 Process

 

Washington, D.C. – November 27, 2017:  Having travelled to India frequently during the last 12 months, attorneys Ignacio Donoso and Dennis Tristani at I.A. Donoso & Associates have met with dozens of successful and fascinating families from India, who have posed many interesting questions concerning the EB-5 visa process.

We prepared this article summarizing the Top 5 questions regarding the EB-5 Program that we receive from our potential clients from India:

  • How long does the EB-5 process take?

Our estimates at present indicate that the entire EB-5 process should take approximately 5 years for Indian citizens to complete. Based on current processing times by United States Citizenship and Immigration Services (“USCIS”), an Indian citizen should receive an I-526 approval in approximately 18 months.  It will then take approximately 4-6 months for the Investor and his/her family to complete consular processing at a U.S. consulate in India or complete adjustment of status in the United States. After one year and nine months of holding conditional lawful permanent resident status, an Investor may file form I-829 to remove the conditions on his/her lawful permanent residence.  The form I-829 petition must be filed with USCIS no later than the 2nd anniversary of the investor’s conditional lawful permanent resident status (this date appears on the conditional green card).  Based on current processing times, an Indian citizen should receive an I-829 approval and unconditional green card within 18 to 24 months. It is also important to note that USCIS anticipates processing times to improve as they hire additional adjudicators this year.

  • Is there a visa waiting list for Indian investors?

No. Unlike investors born in the People’s Republic of China, who have to wait approximately 3.5 years before receiving their conditional green card after an I-526 approval, Indian citizens are currently not subject to a visa waiting list.

  • As an EB-5 Investor, what benefits are available to my family, including my parents?

Under the EB-5 visa program, an individual investor’s spouse and unmarried children under the age of 21 are allowed to receive green cards and accompany the investor to the U.S. as derivative beneficiaries. Each family member does not need to make a qualifying investment.

Under U.S. immigration law, parents of the EB-5 investor are not considered immediate relatives and therefore cannot accompany the investor to the United States as part of the investor’s family unit under one EB-5 visa process.  Should the EB-5 investor choose to apply for U.S. citizenship after 5 years of holding permanent resident status, the investor could sponsor his/her parents for a family based green card as a U.S. citizen.

  • As a U.S. Lawful Permanent Resident, would global income be taxable in both India and the USA?

Generally, under U.S. tax laws, persons who become U.S. green card holders (lawful permanent residents), and people who spend at least one-half of each calendar year physically present in the U.S., are likely considered residents of the U.S. for tax purposes. The general rule of the U.S. tax system is that a person who is a U.S. tax resident is taxed on their worldwide income. Assets are not usually taxed unless income is generated on the asset or the asset is sold and a taxable financial gain results. The U.S. and India have entered into a Double Taxation Avoidance Agreement which seeks to minimize situations where people and companies are taxed both in the U.S. and India. Our law firm strongly recommends potential EB-5 investors to seek professional tax advice to address their individual tax situation and enable proper tax planning. Our law firm does not advise on U.S. taxation issues.

  • How much time do I have to spend in the United States as a U.S. Lawful Permanent Resident?

Lawful permanent resident (“LPR”) status is a residency permit that is intended to allow people to live in the United States on a long-term basis. It is not a tourist or visitor visa that is intended for short and sporadic visits to the United States.  If a person holding LPR status spends significant amounts of time outside the United States, returning only for brief visits, it likely that they could encounter detailed questions when then seek to re-enter the U.S. from officers of U.S. Customs and Border Protection (“CBP”) to determine whether the person is complying with their status as a LPR.  Generally, persons who hold LPR status should not engage in one trip lasting more than 6 months outside the United States.

If a person holding LPR status expects to travel for longer than 6 months outside the United States without returning, then many of our clients find it best to apply for a reentry permit from USCIS. The reentry permit is the strongest proof of one’s intention to remain an LPR in light of extended travel outside of the U.S. A reentry permit can be applied for prior to the LPR’s departure from the United States. Upon approval, the LPR holder obtains a passport‑style travel document issued by USCIS. Even if the LPR does not intend to be outside of the U.S. for a full year, our firm recommends that an LPR obtain a reentry permit if he/she intends to spend significant time outside of the U.S., e.g. more than 6 months per year.

Conclusion

I.A. Donoso & Associates, LLC, is a law firm based in Washington, D.C., and is recognized as a leading immigration law firm with renowned expertise in the EB-5 program.