EB-5 Visa Decisions & Requirements

Steps to Becoming a Permanent U.S. Resident Through the EB-5 Program

The EB-5 Immigrant Investor Visa program was established in 1990 to provide an opportunity for foreign nationals to become permanent U.S. residents by making a substantial investment that aids in job creation for U.S. workers. It is one of several visa options available and is overseen by United States Citizenship and Immigration Services (USCIS). Briefly, the EB-5 program requires a foreign investor to make an investment of $500,000 (or $1,000,000, depending on the project location) in a new commercial enterprise (NCE). The investment must result in the creation of at least 10 new full-time jobs for U.S. workers, and the investor must remain involved in the project.

The following section provides a step-by-step overview of the EB-5 process to obtain permanent resident status.

Decide How to Make Your Investment

Immigrant investors participating in the EB-5 program can choose to invest through a USCIS-approved regional center or put their investment directly into their chosen NCE. Investment through a regional center has some advantages over a direct investment. First, in a direct investment, the only jobs that can be counted towards the 10-job requirement are those held by direct employees of the enterprise itself. When the investment is made through a regional center, indirect and induced jobs are also included in the job count, i.e., employees of entities providing services to the enterprise and employees of entities where direct and indirect employees spend their money. This makes it easier to meet the 10-job requirement. In addition, investing through a regional center makes it easier to invest in a project that has other investors as well, and thus greater capital. This makes it possible for projects to be larger in scope, increasing the number of jobs that are created.

Choose the Recipient of Your Investment

Regardless of the method of investment, EB-5 investors are still responsible to thoroughly evaluate project options to find the best fit for their investment. If the investor wishes to invest through a regional center, he or she should also thoroughly review the regional center’s history with prior investments.

USCIS defines NCEs as for-profit entities that are established after November 29, 1990 and that conduct legal activities. If a business was established prior to November 29, 1990, it can still qualify if it has been purchased and modified or expanded to the point of increasing the number of employees or net worth by 40%. Businesses that are struggling can also qualify, but they must have had a loss of 20% or greater in the past one to two years. In this last situation, the 10-job requirement is voided, and the only requirement is to maintain the employment that exists prior to the investment.

When selecting an NCE for investment, it is important to note the location of the project. If the project is located within a targeted employment area (TEA), the minimum investment amount is only $500,000 in comparison to the $1,000,000 that is required for projects that are not located in a TEA.

Gather Investment Funds

Before beginning the EB-5 program, investors must have the needed funds on hand. The investor must provide proof of the needed amount being fully committed to the project investment.

File Your Petition for Immigration (Form I-526)

Form I-526, Immigrant Petition by Alien Entrepreneur, is the first petition that must be submitted to USCIS during the EB-5 process. This petition must be accompanied by documentation showing that the investor has invested the minimum amount ($500,000 or $1,000,000) in an NCE and that the NCE is capable of creating the 10 jobs required by the program and maintaining them for a period of two years. The documentation must also show how the investor will continue to be involved in the project. This requires the investor to either play a role in the development of the NCE’s policies or be involved in daily management activities. The petition must also include documentation showing that the investment funds were legally sourced.

Obtain Green Card(s)

The next step after approval of the I-526 Petition is becoming a conditional permanent resident. For foreign investors currently residing (legally) in the United States, this means submitting Form I-485, Application to Register Permanent Residence or Adjust Status. A petition must be submitted for each member of the investor’s immediate family who wishes to also obtain permanent resident status (including spouse and unmarried children under 21). Investors still living outside the United States will instead use Form DS-230, which is an application for an immigrant visa. As part of this process, foreign investors must complete an interview at the U.S. consulate where they are legally residing. Conditional permanent resident status expires in two years.

Maintain the Investment

During the two-year period after receiving conditional permanent resident status, immigrant investors must ensure that their investment remains at risk and that it is being used to create the 10 required jobs for the EB-5 program.

Avoid Travelling Outside the United States

Because the permanent resident status that investors have at this point is conditional, applicants must prove that they intend to make the United States their permanent residence. If they travel outside the United States for longer than six months out of every 12, their status may be taken away.

Remove Conditions

Before conditional resident status expires, EB-5 investors must submit Form I-829 to remove the conditions and be granted permanent resident status. This form must be completed within the 90 days prior to the termination of conditional permanent resident status. With the form, each investor must provide evidence that the requisite number of jobs have been created and maintained using the investment funds and that the investment has remained at risk for the duration of the project, Upon approval of this final petition, the investor and his or her dependents will become legal permanent residents without conditions and become eligible for U.S. citizenship five years after conditional permanent resident status was granted.

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