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Congress created the fifth-preference employment-based immigrant visa, usually called the EB-5 visa, in 1990 to foster local U.S. economies through foreign investment, granting investors permanent resident status. United States Citizenship and Immigration Services (USCIS) oversees the EB-5 program.
The most basic requirement of the EB-5 program is to create 10 new full-time jobs through a qualifying investment in a new commercial enterprise (NCE). The investor must be involved in the management of the firm, although this requirement is reduced significantly for EB-5 investors who invest through regional centers.
If you’re interested in the EB-5 program to obtain U.S. green cards for yourself and your immediate family, read on to discover the typical EB-5 journey.
Choose Your Method of Investment
EB-5 investors have two options for investment: direct investment or investment via a USCIS-approved regional center. Regional center investment is more popular because it offers significant advantages over direct investment.
EB-5 investors who invest directly in a project can only count direct jobs toward the 10-job employment creation requirement, but those who invest through a regional center can include indirect and induced jobs in their calculation, as long as they employ accepted economic methodology. EB-5 projects affiliated with regional centers also tend to be bigger, as they often combine the funds of multiple investors and create far more jobs than necessary to cover their investors’ job creation requirements.
Carefully Choose an EB-5 Project
Thorough due diligence is important when selecting an EB-5 project, regardless of the investment method. To make sure a prospective EB-5 project poses minimum immigration and financial risk, EB-5 investors should read through the project’s documents carefully and conduct a rigorous risk assessment.
EB-5-eligible NCEs are for-profit business entities established after November 29, 1990, that engage in long-term, lawful commercial activity. If a business was established before November 29, 1990, it may be eligible for EB-5 investment if it has since restructured or expanded enough that it has a 40% higher net worth or employee count.
The EB-5 program can also be used to save struggling businesses. USCIS defines a troubled business as one that has lost at least 20% in net worth over the past one or two years. If an EB-5 investor invests in a troubled business, they are required to save 10 full-time jobs as opposed to creating them.
Some EB-5 projects are subject to a lower minimum required investment amount. Projects located in a targeted employment area (TEA)—a region with an unemployment rate 50% higher than the national average or a rural area with fewer than 20,000 residents—require an investment of only $900,000, as opposed to the $1.8 million otherwise needed.
Make Your EB-5 Investment
To start the official EB-5 process, transfer your $900,000 or $1.8 million to the account designated in the project’s documentation—usually an escrow account. EB-5 investors must fully invest their capital in advance or otherwise prove their commitment to the investment before USCIS will approve their petition.
File an I-526 Petition
Following an investment of the appropriate amount in the NCE, EB-5 investors must submit Form I-526, Immigrant Petition by Alien Entrepreneur to USCIS.
USCIS uses the petition and the supporting evidence to evaluate whether the applicant’s investment meets the EB-5 requirements—that the investor has transferred the required amount of capital, that the funds will create or maintain 10 full-time jobs, and that the investor will be sufficiently involved in the management of the NCE.
The role an EB-5 investor needs to take on differs from project to project. Generally, the investor can fulfill this requirement by participating in the day-to-day management of the NCE or assuming a role in its policy formation. In a limited partnership, EB-5 investors satisfy this requirement simply by being limited partners.
Additionally, investors need to submit documentation proving `the lawful sources of their EB-5 capital.
Apply for a Visa
Upon approval of the I-526 petition, EB-5 investors are eligible to apply for a U.S. green card. EB-5 investors applying from outside of the United States must file Form DS-260 to the U.S. National Visa Center via the U.S. embassy or consulate in their country of origin. EB-5 investors already residing in the United States under a different visa are to submit Form I-485 to transition to conditional permanent resident status.
EB-5 investors with a spouse and unmarried children younger than 21 may also apply for EB-5 visas for their family members. The visas EB-5 investors and their families receive are valid for two years.
Keep Your Investment At Risk for Two Years
At the end of the two-year conditional permanent residency period, EB-5 investors must submit another petition to remove the conditions. To satisfy EB-5 requirements, the investor must keep the investment at risk throughout the full two years.
Avoid Traveling Abroad Too Much
To maintain U.S. permanent resident status, green card holders must reside in the United States for a certain amount of time—typically, at least six months a year. If USCIS believes a permanent resident has no intention of residing in the United States, it may revoke that person’s permanent resident status, so be cautious spending time abroad.
Submit an I-829 Petition
After two years of conditional permanent residency, EB-5 investors need to file Form I-829, Petition by Entrepreneur to Remove Conditions within the last 90 days of their conditional permanent residency period.
USCIS uses the I-829 petition to evaluate whether the EB-5 investment has met the program’s requirements and created (or saved) the 10 necessary full-time jobs while remaining at risk. The EB-5 investor must gather appropriate documentation and evidence to prove the fulfillment of the EB-5 criteria.
When USCIS approves an EB-5 investor’s I-829, the investor, along with his or her family, shed the conditions from their permanent resident status. After three more years of permanent resident status, they may apply to become naturalized U.S. citizens.
