Considering the entire purpose of the EB-5 Immigrant Investor Program is to provide foreign nationals with a green card in exchange for an EB-5 investment in qualifying projects, current U.S. citizens are not eligible to partake. However, those who are living in the United States under a different visa are allowed to participate, and the program offers many benefits for these individuals. If temporary U.S. residents wish to make the United States a more permanent home, making an EB5 investment is a prudent path to pursue.
The Advantages of Permanent Residency over Temporary Status
Millions of people around the world dream of calling the United States home. Though most of those dreamers will remain dreamers, a lucky few have the ability to see their vision come to fruition. The United States allocates thousands of F-1 student visas and H-1B employment visas a year, but both are temporary visas and come with very strict regulations on one’s affairs. Since they are only temporary visas, the visa holder will need to return to their home country before the visa expires. This is the main disadvantage of obtaining temporary residency status in the United States.
On the other hand, permanent residents benefit from most of the same freedoms and rights as U.S. citizens. Permanent residents can work, live, or study in any of the 50 states without limitation. Additionally, they have access to all U.S. public schools, world-class health facilities, and an easier U.S. college admissions process (and possibly in-state tuition savings at these universities). Furthermore, at the age of retirement, permanent residents can access their pensions from overseas and the United States as well as possibly qualify for other Social Security benefits like Medicare.
EB-5 Investments from within the United States
Foreign nationals currently living in the United States on F-1, H-1B, or any other temporary visas have the opportunity to make an EB-5 investment and obtain permanent residency status. With an EB-5 visa, most of the temporary visa-related restrictions come to an end, and these foreign investors can live anywhere in the United States. Additionally, all their immediate family members— unmarried children younger than 21 and spouses—can receive green cards as well.
Take the example of an H-1B worker. Though H-1B visa holders sometimes have the option to obtain a green card, this can take upwards of a decade and still comes with many restrictions during the waiting period. An EB-5 investor, however, receives their green card within a few years and can confidently settle anywhere in the United States.
Making an EB-5 investment from within the United States is basically the same as making one from abroad. One difference is that current U.S. residents can visit the site of their EB-5 project for an in-person inspection. The general process, however, remains the same. In both cases, investors choose a qualifying EB-5 project and pledge the minimum required EB5 investment amount to it. As of June 22, 2021, the minimum investment amounts are $500,000 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects.
Afterwards, investors must compile an I-526 petition, a document that in part attests to the lawful sources of all EB-5 investment capital, as well as justify the TEA status of their respective project, if applicable. During this investment time, investors must keep their investment capital at risk. After the two-year conditional permanent residency period, investors must prove that their EB5 investment produced a minimum of 10 full-time jobs for U.S. workers.
Both domestic and international investors have two options when it comes to their EB-5 investment: direct investment or investment via an EB-5 regional center. Though some investors choose the direct investment route, the regional center path is the more popular choice because it allows for investors to benefit from the expertise and experience of the regional center operators as well as from the relaxed job production requirement. Those investing through a regional center can count indirect and induced jobs towards their count of 10 full-time jobs produced. (The regional center program expired in June 2021, but it will likely be reauthorized in the coming months.)
Adjusting Status to EB-5
Upon the approval of their I-526 petition, a domestic investor can file Form I-485 with United States Citizenship and Immigration Services (USCIS) to change their status from a nonimmigrant visa to an EB-5 green card. This is a simpler process than it would be if the investor were abroad. In that case, the investor would need to fill out a Form DS-260 and submit it to the U.S. embassy or consulate in their country of origin as well as partake in a visa interview before they can receive their EB-5 visa. Though in some cases domestic applicants need to complete a visa interview, this is not necessary in most cases.
During the long wait time before an investor’s I-485 petition is processed, domestic EB-5 investors can take advantage of their new freedom. By filing an I-131 petition, domestic EB-5 investors can obtain authorization to travel internationally and return during the I-485 application processing period. Likewise, investors can complete an I-765 petition, which provides investors with authorization for employment anywhere in the United States during the processing period. Though this probably won’t apply to H-1B visa holders who maintain their job, it is extremely beneficial to investors in the United States on an F-1 visa after they graduate from a U.S. college or university.
