Since its introduction in 1990, the EB-5 Immigrant Investor Program has been one of the most popular visa-by-investment programs. Foreign nationals aspiring to live in the United States frequently become EB-5 investors. During the past three decades, EB-5 capital has contributed significantly to the U.S. economy.
When applying for an EB-5 investment visa, investors need to make sure to follow the regulations established by United States Citizenship and Immigration Services (USCIS). Although these rules are generally straightforward, gathering all the documentation needed to prove compliance can be a painstaking process. Even small mistakes in the application process may lead to the denial of an EB-5 investment visa petition.
In this article, we discuss how EB-5 investors can overcome these common mistakes, prove compliance with USCIS regulations, and avoid a petition denial.
Primary Criteria for EB-5 Investment Applicants
While applying for an EB5 investment visa, applicants submit Form I-526 and Form I-829.
Submitting Form I-526, Immigrant Petition by Alien Entrepreneur, is the first step of the application process. While filing the petition, the investor must provide documents supporting four claims:
- They are in the process of investing or have already invested the required capital in a qualified EB-5 project;
- This investment will lead to the creation of at least 10 full-time U.S. jobs;
- The investment funds are at risk;
- They have acquired the funds legally.
After Form I-526 gets approved by USCIS, EB-5 investors must go through a conditional residency and then file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. Filing the I-829 petition is the final step of the EB-5 visa application process. With this petition, investors provide documentary evidence to prove that they have successfully fulfilled all EB-5 criteria.
Tracing the EB-5 Investment Capital in Form I-526
USCIS makes it mandatory for EB-5 investors to disclose the source of their funds in Form I-526. To prove that the funds have been acquired legally, investors must provide detailed documentation tracking the origin of the funds. Compiling all the required documents for Form I-526 can be a complex and drawn-out process.
USCIS does not place restrictions on the types of funds that can be used for an EB-5 investment, as long as these are legally sourced. This means that investors may use funds from loans, real estate sales, and many other sources. While this offers more flexibility to foreign nationals looking to make an EB-5 investment, it also means that there is no standard list of source-of-funds documents applicable to all EB-5 investors. As the fund acquisition process is different for each individual investor, the documentation requirements vary.
However, no matter how the investor acquires the funds, they must be able to document their sources thoroughly. An investor who sells real estate to acquire the capital for their investment, for example, will need to prove not only that they owned the property and made the sale but also that they originally acquired the property with legal funds.
Professional EB-5 Guidance
Filing an EB-5 investment visa petition can be challenging without professional guidance. Therefore, it is strongly recommended to retain an immigration attorney and contact an EB-5 consulting firm.