While many think of the U.S. as a land that welcomes foreigners, this may not be the case for certain types of individuals. The U.S. Department of Homeland Security is in charge of protecting our country from domestic and foreign threats (such as terrorists and narcotics traffickers) by working with many different agencies. The Office of Foreign Assets Controls (OFAC), part of the Department of Treasury, is such agency in charge of administering and enforce economic and trade sanctions against certain foreign countries and their nationals based on foreign policies that the U.S. has enacted or is obligated to follow, such as United Nations or other international treaties.
On a practical level, this means that nationals of countries currently faced with trade or other economic sanctions by the U.S. will be unlikely to successfully emigrate to the U.S. without first getting special permission, such as general or special licenses from OFAC. OFAC restricts the ability of U.S. organizations and individuals to conduct trade or conduct other financial transactions with individuals and/or groups on the Specially Designated Nationals (SDN) list. Violations can lead to criminal and civil penalties for U.S. individuals and organizations. Thus, foreign investors who are nationals of embargoed countries find it difficult to overcome the OFAC hurdle to qualify for an EB-5 visa.
Up until recently, Iranian citizens wishing to make an EB-5 investment were required to obtain a special license from OFAC prior to applying for an EB-5 petition. In October 2012, OFAC decided to revise its special licensing requirement for Iranian nationals. In revisions to the Iranian Transactions Regulations, OFAC announced that Iranian individuals could now qualify for certain immigration visa categories, including EB-5 visas, without having to obtain special licensing from OFAC on condition that any financing was not obtained and did not involve individuals or groups on the SDN list. If an EB-5 investor has obtained funds from a company or individual on the SDN list, the Investor would then need a special license from OFAC in order to successfully transfer the qualifying EB-5 funds to the U.S.
The good news is that Iranian nationals now have the option to evaluate whether an EB-5 visa might be the right visa for them. Though, Iranian foreign investors should still be cautioned to conduct their due diligence. It is important to assure the Department of Homeland Security that everything has been done to ensure the foreign investor is not on any watch list or other security database compiled by the U.S. government.