The EB-5 program was implemented in 1990 as a program to provide legal permanent residence status to investors who invest $500,000 or $1 million (depending on the geographical area) in a business that creates employment for 10 full-time U.S. citizen or permanent resident employees.

The EB-5 investor must first find a suitable business project to invest in. After choosing a project, the investor must make the required capital investment amount in the project that they have chosen and provide evidence of the lawful source of the EB-5 investor's funds to the United States Citizenship and Immigration Services (USCIS).

Additionally, USCIS requires documentation that links the invested funds to the investor and shows the funds were in the investor's name, control or possession. However, moving large sums out of a country for an EB-5 investment is a challenging process because of the foreign currency restrictions imposed by the investor's home country. It is further complicated by USCIS' unreasonable and changing standards of evidence. While this article focuses on the challenges of an investor from China, the same challenges apply to investors from countries with currency restrictions, including Vietnam and Bangladesh.

In early 2017, and for the first time, USCIS started issuing requests for evidence (RFEs) to Chinese EB-5 investors who used third-party money exchangers to invest capital in a new U.S. commercial enterprise (NCE) in the United States.

Chinese citizens are permitted to transfer a maximum of USD $50,000 per person annually, due to government restrictions. While there was a rumor that this limit would be reduced to $7,500, those rumors were put to rest when the Chinese government confirmed that such rumors were a result of misinterpretation of unrelated regulations according to Chinese news outlets.

Due to the restrictions on transferring money out of China, investors commonly rely on two options to exchange Renminbi (RMB) funds to U.S. dollars and transfers the funds to the United States; the friends and family method and the single intermediary approach. The first option is to rely on family and friends, whereby the investor transfers RMB funds to 12 or 13 family and friends. In turn, these individuals exchange the funds to USD and transfer to the investors USD account. Although the most straightforward method, it requires a substantial amount of coordination and documentation. Accordingly, it takes a few weeks or months to transfer the EB-5 investment funds out of China and into the NCE.

As an alternative, investors increasingly rely on the second option, namely single intermediary currency swap whereby RMB funds are transferred from the investor's account in China to the third party's account, also in China. In turn, the third-party transfers USD $500,000 from an overseas account, most commonly located in Hong Kong, to the investor's USD account.

However, after years of approving cases using this single intermediary approach, in early 2017, USCIS began questioning whether the use of the third party as a value transfer exchange has caused a break in the path of funds. Therefore, USCIS claimed, it is not enough for investor to show the lawful source of his income, and must now document the lawful source of funds of the USD supplied by the third party. Questioning the lawfulness of the investor's exchanged capital is not only incorrect, but it is also a drastic departure from well-established USCIS policy, and one made with no prior notice to stakeholders.

The path of funds chosen by investor bears striking resemblance to the informal remittance system known as Hawala, which is routinely used in countries where investors face significant hurdles in attempting to transfer money outside of the country. In fact, given the strict controls on exporting money, one can presume that EB-5 investors from Iran, including those whose petitions have been approved by USCIS, have routinely used the Hawala system.

Questioning this currency exchange method commonly used by Chinese investors while approving Iranian investors using the similar Hawala method not only creates a de facto double standard in adjudication, but will also have disastrous repercussions on the longevity and effectiveness of the immigrant investor visa program.

Further, this exchange of assets is no different than the investor exchanging an asset of real property for RMB. In the sale of real property, asset A, the property, is exchanged for asset B, RMB. USCIS does not demand the source of funds for the exchanged sale proceeds nor does it question if the exchanged sale proceeds had been obtained through lawful means. USCIS does, however, seek to establish ownership of the property prior to the sale. In the case of the value transfer exchange, USCIS has in several RFEs conceded that the capital invested belongs to the investor. However, this RFE trend comes as no surprise to some given USCIS IPO Chief Nicholas Colucci's background with the Department of the Treasury, Financial Crimes Enforcement Network (FinCEN). To deal with unannounced policy changes, attorneys will have to go back to the drawing board. Guessing what other changes USCIS will make is now very much a part of the EB-5 process.

Given USCIS' recent policy change in the single intermediary approach, there is a pressing need to innovate in lawfully transferring EB-5 funds to the NCE. One of the possible options would be to develop methodology by which RMB funds remain in mainland China, but the USD invested in the NCE is still considered a lawful source of funds. The challenge is to ensure that the methodology complies with USCIS requirements, which we think is doable with some careful planning and documentation in collaboration with various industry experts.

Karuna Chandani Simbeck is an associate in Klasko Immigration Law Partner's Philadelphia office and a member of the firm's EB-5 practice. As part of the EB-5 team, she is involved in various stages of the EB-5 process, including the preparation and filing of I-526 petitions for both regional center investors and individual investment opportunities.