The Trump administration issued several executive orders (EOs) in the first week following the inauguration. Many of the EOs for immigration focus on enhancing security measures relating to foreign nationals, including scrutiny of nonimmigrant and immigrant visa applications and enhanced background checks for foreign nationals. At present, no EOs specifically relate to the EB-5 Immigrant Investor Program, but the enhanced scrutiny the newly issued EOs require may impact EB-5 investors.

EB-5 investors may experience increased scrutiny during Form I-526 or Form I-526E petition adjudication. A critical part of the EB-5 petition process is documenting the lawful funding source the investor used to make the qualifying EB-5 investment. The USCIS Immigrant Investor Program Office may conduct additional background checks on all individuals involved in the funding source, including the investor, his or her spouse, any gift or, and/or any individual or non-bank organization that provides a loan to the investor.

Moreover, EB-5 investors may experience enhanced background checks for EB-5 immigrant visas at U.S. embassies and consulates worldwide. The EO “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” tasks government agencies with reviewing all visa programs to prevent hostile state and nonstate actors from entering the United States. This EO likely will result in enhanced background checks of EB-5 investors applying for immigrant visas abroad or for adjustment of status in the United States. Investors born in or who are citizens of countries with a totalitarian or Communist Party-controlled government likely will receive increased scrutiny to determine if they have meaningful membership in the Communist Party. Both USCIS and foreign consular officers likely will also closely examine investors’ memberships in associations or other organizations.

An additional EO, “Guaranteeing the States Protection Against Invasion,” imposes vetting requirements on immigrants to the United States. This EO might result in enhanced medical and security requirements. The EO “Protecting the American People Against Invasion” may also result in a more stringent application of the “public charge” ground of inadmissibility. EB-5 investors are subject to the “public charge” ground of inadmissibility, and they must prove to the USCIS or the consular officer’s satisfaction that they are able to support themselves in the United States and are not likely to take public benefits after being granted permanent residence. USCIS or the State Department may require applicants to submit evidence to prove they would not be a public charge. The administration may expand the list of federal public benefits that can be considered in making a public charge determination. In the I-829 petition adjudication process, USCIS may request evidence on federal public benefits applicants receive.

The administration’s EOs do not change the EB-5 Program, which Congress extended through Sept. 30, 2027. The EOs generally do not change the EB-5 Program’s rules or eligibility requirements, and applicants from all nations can apply. USCIS and the State Department may implement additional background checks on EB-5 investors at the I-526 or I-526E petition stage, the immigrant visa stage, the adjustment of status stage, and the I-829 petition stage.