EB-5 Visa 2023: Top 5 Indian Investor Opportunities in the new RIA 

The new EB-5 climate is a massive opportunity for Indian investors – unlike any other US history. Here are five reasons why, before we get to your five strategies. 

High Level Changes to consider: 

 

• The tightening labor market has every US worker thinking about job security. In visa classifications like H-1B, the promise of a path to citizenship is essentially gone while massive layoffs continue in the tech sector. 

• Any Indian student in F1 status looking at the second and third categories of H-1B can do the math and see there is almost no chance of gaining citizenship.  

• Despite the increased cost of an EB-5 Investment, few Regional Centers like Behring can offer incredible flexibility with Investment strategies for the Indian market. The Chinese market is embracing these same opportunities for all the same reasons. 

• The backlogs for Indians are GONE in the High Unemployment set-aside category. This creates a more direct path to citizenship for investors and their immediate family. 

• Concurrent filing. Investors can enjoy work and travel benefits while they wait for their green card, and this is a brand-new benefit to the industry. 

The EB-5 Reform and Integrity Act of 2022 created 5 new opportunities for Indian investors.  

Opportunity One: No Backlogs, No Retrogression 

 

Indian investors worldwide can now place their investments into trophy quality projects in the High Unemployment set aside category with no existing backlog, with a minimum investment of $800,000.  

While the rural category looks appealing in terms of benefits, there is a huge risk offset to consider here. To speak plainly, this category was a political bargaining chip to attract foreign investment into locations that local developers historically do not go and historically do not stay. 

No matter what your choice is, a backlog between now and the date of adjudication should be presumed for today’s investors in these set aside categories, until USCIS provides more information. In other words, these categories got the “green light” in August 2022, which is the earliest possible date that retrogression could move back to.  

To put this in perspective, we may never again see the issuance of unused visas at the speed we saw in 2022 (280,000). In fact, the actual visa allocation will normalize next year at levels around 53% of what we saw in that year (150,000). Compared to the unreserved priority date of June 2018 a significant amount of investors are considering the quality of projects like ours for their investment. 

Updated USCIS Policy also speaks to the age protection of minor children, which is something unavailable to the H-1B pipeline. With the backlogs the way they are in H-1B, it is presumable that every child will age out of a EB-2 or EB-3 filing before their 485 is adjudicated. 

Opportunity Two: Concurrent Filing 

 

Indian investors in the US can now file “concurrently.” This means that your investment visa application can be filed at the same time as your green card application, and further, you can now also apply for an Employment Authorization Document (EAD) and Travel Document (AP) at the same time. We have seen these approved in 100 days or more.  The key is filing now.

What does Concurrent Filing really mean? For H-1B, F1, E2 and other visa categories, the EB-5 based EAD has unlimited work authorization. This is a major haul for those who want to create their own business, open a consulting firm, or even travel overseas with no visa problems – all with a much more secure path to citizenship for them and their family.  

In other words, EB-5 and concurrent filing opens a unique opportunity to acquire the benefits of a green card while waiting for one. These forms are subject to renewal and future regression will not impact those renewals. They retain their value while you wait for approval.  

Opportunity Three: Investing with More Confidence 

 

The goal of the RIA is to increase the compliance requirements of Regional Centers, to hold them to a higher standard. Let’s face it, there were bad actors and bad programs who got away with financial crimes faster than investors could realize. The RIA’s passage has already pushed hundreds of Regional Centers off the table and while investors must do their own diligence, things are centralizing.  

In addition, Regional Centers like Behring can offer not just senior position debt positions to investors but also preferred equity and even common equity options in open ended funds. We have the control to create a true private equity investment platform that traditional intermediaries cannot compete with. You might see one project which is all debt, and another which is all equity, and you can be assured those one-sided negotiations are not made with the investor in mind.  

Traditional EB-5 Regional Center activity was to act as a broker/dealer. Introducing foreign capital to domestic projects and taking passive income, then relying on agents to generate fee-based capital. While this does still exist, the market and the RIA are raising the bar on expectations. Increased compliance and agency requirements are creating pressure on the food chain and directing us all to be more active in our Compliance controls.  

Opportunity Four: Financing Options are on the table 

 

Going back to the pre-RIA timeline for a moment, investors can use partial payments to show they are actively in the process of investing, and loans are an allowable source of investment. The RIA has created even more of a need to be sophisticated with your financial power. A partial payment needs a reliable and credible financial narrative of the entire amount, and the lawful sources of those funds could be traditional secured loans like a HELOC or a portfolio loan.  

Our partners specialize in rolling over retirement accounts like an IRA into the fund itself, and then returning the fund to the investor after the investment is complete with no tax or age penalties.  

Unsecured loans are also allowed if the source of the loan proceeds is lawful, and those loans must be paid with a lawful source of funds. In other words, loans are not to be used to get around the lawful source of funds requirement of USCIS. Behring created a lawful source of funds lender, the Unity Lender, which can be used to consolidate your timeline and cover financial gaps reach your goals.  

Opportunity Five: Indian Funding & Remittance Restrictions are Coming – but you have a window.  

 

Getting money out of India 

By showing USCIS that you are actively investing, you can start with a partial payment if you establish the entire investment amount while also showing that it is committed to the project. This means you can file now with a partial payment and draw money from India to complete the investment.  

Here are the restrictions and timelines 

In the context of Indian finances, LRS stands for Liberalized Remittance Scheme. It is a scheme introduced by the Reserve Bank of India (RBI) in 2004 that allows resident individuals to freely remit a certain amount of money out of the country for permissible current or capital account transactions. 

Under the LRS, resident individuals can remit up to $250,000 per financial year for permissible purposes such as education, medical treatment, travel, gifting, investments in foreign stocks, and real estate, among others. The scheme aims to facilitate individual remittances and investments abroad and liberalize the foreign exchange regime in India. 

These remittances are approvable for EB-5 purposes and the financial year ends in March. An investor or their family members can each remit 250,000 in March and another 250,000 in April, subject to Indian taxes.  

Taxes are changing 

India is charging 5% on remittances – for now. The Union Budget 2023 has proposed a tax collection at source of 20% for foreign outward remittances under the LRS to begin in July.  Many investors are considering funds like the Unity Lender instead. This leaves their money to perform overseas while also getting the opportunity to create a domestic opportunity to access a lawful source of funds, which must be paid back from a lawful source of funds.  

Takeaway: A partial payment now gets you in front of a growing line, in a window that will shut, by working with the most investor-forward Regional Center in EB5. 

 

Greg Sheehan
Former EB-5 Adjudicator and Behring’s Director of EB-5 Investor Relations and USCIS Compliance