"In fact, some lawyers encourage their clients to use their wealth to fit themselves into another category with a greater chance of success. For example by investing in a company outside the U.S. that has a U.S. affiliate, the person might qualify to immigrate as a transferring executive or manager." (Bray, p. 250) The problems that people had been having with EB-5 in the 90s did not vanish with the amendments in the law. Literature review indicates that even after the changes in 2002 and 2005, EB-5 continues to perform poorly as people seek other avenues to get LPR status in the U.S.

Literature Review:

Despite the initial enthusiasm and expectations, the EB-5 visa has not seen equally enthusiastic participation. Since its inception in 1992, the program has not even been able to meet the number of visas allocated for one year. According to USCIS, some of the most obvious reasons for lack of enthusiastic response to EB-5 visa program included the following:

1. The application process is very vigorous and often complex compared to some other employed-based visa categories. The USCIS feels that there are other easier routes to attaining residency or immigration to the U.S. that do not involve such complex application process.

2. Adjudicators trained to review applications lacked the required expertise needed to correctly assess an investor's eligibility. Prior to the changes in 1998, this was a significant factor in the poor performance of EB-5 visa.

3. People are also uncertain of the outcome of their residency application after the initial 2-year period. The program doesn't automatically grant residency to all the investors coming under this category. They are initially given a 2-year conditional residency in the U.S., after which they need to apply for permanent residency but they cannot be certain of the outcome. After the changes in the law in 1998, this uncertainly has increased significantly as so many cases are already pending and INS is now working with new interpretations of the EB-5 regulations. (Jones, p.8-9)

While USCIS feels the above mentioned are some of the reasons,...

They are of the view that the main reasons why people are not enthusiastically participating in this program is because it involves complex documentation, people have alternative routes to immigration which are dependent on capital investment, there are many ambiguities in EB-5 regulations and no specific time frame exists for processing of applications. (Jones, p. 11)
Even after the changes introduced in 2002 and 2005, the performance of EB-5 remained dismal as one GAO report in 2005 attributed: "… low participation to a series of factors that led to uncertainty among potential investors. These factors include an onerous application process; lengthy adjudication periods; and the suspension of processing of over 900 EB-5 cases -- some of which date to 1995 -- precipitated by a change in [USCIS'] interpretation of regulations regarding financial [qualifications.]"

In the same year, a Congressional Research Service's 2005 report to Congress on "Federal Investor Visas: Policies and Issues," also focused on the reasons why EB-5 had seen low participation and found it was connected to:

"[T]he rigorous nature of the LPR investor application process and qualifying requirements; the lack of expertise among adjudicators; uncertainty regarding adjudication outcomes; negative media attention on the LPR investor program; lack of clear statutory guidance; and lack of timely application processing and adjudication."

Reference:

Jones, P. (2005) Immigrant Investors: Small Number of Participants Attributed to Pending Regulations & Other Factors. Diane Publishing Company.

Burgess, S. (2003) Immigration the Easy Way. Barron's educational Series.

Bray, I. (2009) U.S. immigration Made Easy. NOLO; 14 edition.

Immigrant Investors: Small Number of Participants Attributed to Pending Regulations and Other Factors, GAO-05-256 (Apr. 2005).

Immigrant Investors: Small Number of Participants Attributed to Pending Regulations and Other Factors, p.3 GAO-05-256 (Apr. 2005).

Ibid. p.…