What Is the Process of Making an EB-5 Investment?

While participating in the EB-5 Immigrant Investor Program can generate a substantial financial return for an investor, most EB-5 investment participants are primarily concerned with obtaining U.S. permanent residency. Thankfully, EB-5 investment participants have an exceptionally low chance of EB-5 petition denial.

Filing the I-526 Petition

The first step in an EB-5 investor’s journey is filing Form I-526 with United States Citizenship and Immigration Services (USCIS). Filing this form officially begins the investor’s EB5 investment journey. Before filing this petition, an investor must have identified an EB-5 project and committed their capital to the EB-5 project’s designated escrow account.

Many EB5 investment participants find the I-526 petition intimidating, as it includes many stipulations and requires several additional documents. With the I-526 petition, USCIS is trying to gather information on an investor, their immediate family members, and the EB-5 project the investor has decided to invest in. To continue in their EB-5 journey, investors must prove that the new commercial enterprise (NCE) they are investing in exists and is likely to create the required number of jobs. They must also prove that they have already committed their funds to the NCE and demonstrate that the EB-5 capital they have used came from lawful sources.

Many EB5 investment participants find the source-of-funds requirement one of the most demanding requirements to satisfy. However, investors can streamline the source-of-funds documentation process by hiring a qualified EB-5 immigration attorney. EB-5 immigration attorneys can be particularly helpful in helping investors decide which fund source to use.

EB-5 regional centers also streamline an EB5 investment participant’s I-526 application process. Regional centers are commercial entities approved by USCIS that fund major projects using the EB-5 capital of multiple investors. Reputable regional centers can dramatically increase an investor’s I-526 petition success rate. Regional centers also appeal to investors because they have relaxed managerial requirements. In most cases, regional center investors only need to sign on as a limited partner.

Filing the I-829 Petition

A successful I-526 petition makes an investor, their spouse, and their dependent children eligible for U.S. conditional permanent residency for a two-year period. At the end of the conditional residency period, investors must submit Form I-829 to apply to remove their residency’s conditions.

When USCIS evaluates an investor’s I-829 petition, they are mainly concerned with whether the EB-5 investment fulfills all the program’s requirements for U.S. permanent residency. Two areas USCIS is principally concerned with are whether the investment has created a minimum of 10 full-time jobs for U.S. workers and whether the investor’s EB-5 investment capital remained at risk for the entire investment period. Investors from a backlogged country, such as China, may need to redeploy their EB-5 investment capital so that they satisfy the program’s “at risk” requirement.

Investing through an EB-5 regional center also helps with the program’s job creation requirements. Direct investors can only count jobs that were directly created, such as construction jobs that last at least two years or jobs on the NCE’s payroll. However, regional center investors can include indirect and induced jobs in their job creation calculations. The relaxed job creation guidelines regional center investors face make this option much more popular than direct EB-5 investment.

What Do I-526 and I-829 Approval Statistics Look Like?

The I-526 and I-829 adjudication processes can be quite lengthy, leading many investors to doubt whether an EB5 investment is justified. However, high success rates for both types of petitions make the answer to that question a resounding yes.

Since 2008, USCIS has approved an average of 82.9% of I-526 petitions. Most regional centers boast an even higher I-526 petition approval rating of above 90%. As a result, investors should conduct due diligence when seeking out EB-5 regional centers, with particular consideration paid to the regional center’s I-526 track record.

I-829 petitioners have even higher success rates for both regional center and direct investors, with the I-829 approval rate reaching 95% for the first half of FY2020. The lowest I-829 approval rate from 2013 to 2020 was only 90%. Consequently, although there are no guarantees to the EB-5 investment program, EB-5 investors have an exceptionally high chance of being successful, provided they conduct due diligence. In a matter of no time, qualified EB-5 investment participants who apply can be confident that they will soon receive a U.S. green card.