The EB5 Green Card Process

From Investment to Approval

EB-5 is a United States immigration program that provides a lawful path to permanent residency for foreigners who make a significant investment in the country’s economic growth.

Successful applicants and their families are issued Green Cards, allowing them to live, work, or study anywhere in the United States.

However, the EB-5 process is complex, involves a lot of paperwork, and applications can take years to process.

That’s why we’ve created this guide to help you through the EB-5 Green Card Process.

Here’s an outline of what we’ll cover:

What Is the EB-5 Program?

The EB-5 Immigrant Investor Program is a way for foreign investors to obtain a Green Card and gain permanent resident status in the United States.

To qualify, foreign nationals must invest in a new commercial enterprise (NCE) with the purpose of job creation. This process is carried out through the United States Citizenship and Immigration Services (USCIS).

The minimum investment amount is $1,050,000. However, it’s reduced to $800,000 if the investment is made in a targeted employment area (TEA)—a designated rural area, in an area of high unemployment, or in an infrastructure project.

Each investor must be able to demonstrate that their investment will generate at least ten full-time jobs for U.S. workers that last a minimum of two years. These jobs can be created directly, or indirectly if the project is sponsored by a regional center, i.e., an indirect EB-5 investment.

Investments can be made either directly or via a regional center—we’ll provide more information to help you choose the best option for you later in this article.

Investment via a regional center will suit most investors and comes with several benefits. With this type of investment, the investors don’t need to actively manage the NCE, and the rules on what counts toward their job creation quota are more flexible.

Over 96% of all successful EB-5 Green Cards are granted through regional center investments.

Once you’ve invested in a U.S.-based project or business venture via the EB-5 program, you’ll get a two-year conditional Green Card. You can apply to have the conditional status on your Green Card removed 90 days before the expiration date of the initial two-year period.

What is USCIS? What do they do?

United States Citizenship and Immigration Services (USCIS) is the main government agency that processes immigration applications in the United States. USCIS is one of many agencies involved in immigration governance and falls under the management of the Department of Homeland Security (DHS).

The organization administers the EB-5 program, which involves:

• Overseeing and designating regional centers. This includes evaluating regional center NCE proposals and ensuring that they comply with the program’s requirements.
• Assessing investor petitions, which includes reviewing and monitoring job creation.
• Processing changes to investor visa statuses and removing conditions where required.
• Issuing policy and regulation guidance to regional centers and investors—especially when new policy guidance or legislation is introduced.
• Performing audits, as well as detecting and preventing fraud.

A Step-by-Step Guide to Getting Your Green Card through the EB-5 Process

There are four main steps in the EB-5 Green Card process. The first two focus on choosing a project and making your investment, while steps three and four are about managing your residency.

Let’s look at each step in detail.

Step 1: Selecting an eligible EB-5 project and an experienced EB- 5 immigration attorney

Before selecting a suitable EB-5 commercial enterprise to invest in, foreign investors must determine if they are eligible to apply. The key requirements are summarized below.

An EB-5 investor must be able to prove that their invested funds were obtained through lawful means, and an EB-5 investor must meet at least one of the following criteria in order to be classified as an accredited investor:

An individual is an accredited investor if they:

• earned income that exceeded $200,000 (or $300,000 together with a spouse or spousal equivalent) in each of the prior two years, and reasonably expects the same for the current year, OR
• has a net worth over $1 million, either alone or together with a spouse or spousal equivalent (excluding the value of the person’s primary residence and any loans secured by the residence (up to the value of the residence)), OR
• are a broker or other financial professional holding certain certifications, designations or credentials in good standing, including a Series 7, 65 or 82 license.

The EB-5 process and basic requirements for NCE qualification

For a project to be deemed eligible for an EB-5 investment, it must result in the creation of at least ten new full-time jobs per investor, for a two-year period starting from the time the initial investment is made.

This NCE, being the fund or entity that will receive the EB-5 capital, and distribute it to the project-owning company, or job-creating entity (JCE), must be a for-profit commercial entity within the United States.

If the enterprise is an existing struggling business, it must be restructured to reflect a new business model.

Direct and regional center program investments

As previously mentioned, there are two kinds of EB-5 investments possible through the EB-5 Immigrant Investor Program: direct investment and investment through a regional center. Both have their pros and cons, and investors should check to see which best fits their unique set of circumstances.

For direct investment projects:

• Only one EB-5 investor is allowed to invest in an EB-5 project via a NCE.
• The 10 required jobs must be created directly by the JCE, i.e., actual staff hired directly by the JCE.
• Generally, direct investors can be more involved in the company’s day-to-day functions than regional center investors.

For regional center program investment projects:

• The EB-5 project is sponsored by a regional center. The investment of more than one EB-5 investor can be pooled in the NCE, which distributes the EB-5 capital to the JCE.
• Regional center investors can count direct, indirect, and induced jobs. This includes jobs created by the project’s overall economic impact, which makes it much easier to meet job creation requirements.
• It’s possible to take a more passive role in the NCE as a member or limited partner who simply votes on company policies. Many immigrant investors prefer this more hands-off approach.

Required initial capital for an EB-5 investment

Both kinds of investments can be made in a TEA or an infrastructure project. As previously mentioned, TEAs are areas that have been designated as either rural or high-unemployment.

The advantage of investing in EB-5 projects located within a TEA is that they require a lower minimum investment. The EB-5 minimum investment for TEA projects and some government infrastructure projects is $800,000.

This is intended to stimulate local economies by making TEAs an attractive option for EB-5 investors. For all other EB-5 investments, the minimum investment is $1,050,000.

How to speed up the EB-5 visa process

Investing in a TEA project is a good way to get your Green Card as quickly as possible. That’s because investing in TEAs allows for visas set aside, and rural TEA’s have the added benefit of priority I-526E petition processing.

The regional center, or project owner must submit an I-956F petition for the approval of the EB-5 project or business venture. Investors must submit the I-956F filing receipt to USCIS for review as part of their I-526E petition. Once a project has been approved, it removes the project-specific risk for EB-5 investors.

This allows USCIS to focus on the investor’s source-of-funds report.

Determining possible financial risk

When it comes to EB-5 investments, there’s always some risk involved for both investors and project developers. EB-5 investors can do the following to mitigate the level of financial risk:

• Ensure that the developer has enough of their own equity in the project to justify the investment. This often indicates the developer’s faith in the likelihood of the commercial enterprise succeeding.
• The ideal invested capital stack for an EB-5 investment should indicate different sources of funds, such as developer equity, committed bank loans, and EB-5 capital. The lowest risk investment is into a project that is already fully funded without the need for EB-5 capital, so that any EB-5 capital that is raised, is used to replace or repay more expensive funding, such as senior debt.
• EB-5 investors should look for a project that will return their investment capital by the end of their two-year conditional residency period. Around this time, they will also be filing the final I-829 petition for removal of conditions, which gives them lawful permanent resident status in the U.S.

The EB-5 investor must establish how much capital they can afford to invest, as well as the investor’s ability to wait out the required minimum investment period before being eligible to have invested funds repaid.. These factors often play a crucial role in determining where an investor chooses to place their funds.

Step 2: Invest in the project and file an EB-5 petition

Once an eligible EB-5 project has been chosen for investment and the capital requirement is met, the investor must:

1. Sign a subscription agreement with the NCE.
2. Transfer the EB-5 investment funds, either directly to the NCE’s bank account or to an escrow account. From there, funds can be distributed to the project as needed.

Filing Form I-526E for conditional permanent residency

Form I-526E, Immigrant Petition by Alien Investor, is the first petition an investor files with USCIS. It details the investor’s eligibility for the EB-5 visa program. Once approved, the EB-5 investor can then apply for a temporary, or conditional, Green Card.

If you are investing directly, you need to fill in Form I-526.

After investing in an EB-5 project, the I-526E petition must be filed with all the required accompanying documentation with the help of an experienced immigration attorney. To meet the requirements for EB-5 approval, proof must be shown that:

• The foreign national has invested in an NCE in the U.S.
• The JCE will create 10 full-time jobs for a two-year period.
• All investment capital was acquired lawfully.
• The EB-5 investor is involved in the NCE’s management of day-to-day proceedings or by participating in policy formulation.

When filing an I-526/ I-526E petition, it’s essential to prepare exact documentation of all sources of capital used for the investment. This may include bank statements, secured loan agreements, and subscription agreements.

Any mistakes made can either delay approval for a significant period of time while further evidence is gathered, or result in outright rejection of the petition.

Steps to take in the event of I-526/ I-526E denial

There are many reasons an I-526/ I-526E petition might be denied. This could include:

• Incomplete or inaccurate documentation to prove lawful source of funds.
• Insufficient investment capital or filing fees.
• Lack of potential of the project to create the required jobs.

If a foreign national makes an investment in an NCE and is then denied their EB-5 petition, there are several options available. The investor might:

• File a legal motion to have the petition reassessed after including any additional or previously missing documentation.
• File an appeal with the Administrative Appeals Office.
• File an entirely new EB-5 application with thorough proof of eligibility.

One way to mitigate the financial risk in the event of an I-526/ I-526E petition denial is to check whether or not an EB-5 project investment offers a denial refund guarantee and the assets to back up the guaranty.

If the I-526 petition is rejected, and all administrative rights of appeal have been exhausted, the investor’s EB-5 investment capital will be returned to them, typically within 60–90 days.

Processing time for Form I-526/ I-526E

I-526/ I-526E petition processing times can vary greatly for each EB-5 investor. Different factors affect processing time, such as:

• Whether or not the NCE is located in a rural TEA.
• Whether or not the project has already obtained its I-956F approval (previously known as exemplar approval).
• The accuracy and completeness of both investor and enterprise documents.
• The nationality of the investor.

Immigrants should be prepared to potentially wait many months or even years for their I-526/ I-526E petition to be processed. Refer to the USCIS website for current processing times.

Impact of COVID-19 on the EB-5 program

The COVID-19 pandemic resulted in significant backlogs with respect to petition processing times for the EB-5 Immigrant Investor Program.

On January 29, 2020, USCIS issued Policy Guidelines concerning its stipulated attempt to address fairness concerns by coordinating I-526E Petition adjudications with U.S. State Department visa allocations. In its release, USCIS announced that starting March 31, 2020, it will change the adjudication process for I-526E Petitions from a first-in, first-out basis to a visa availability approach.

The significance of this processing change is that USCIS will now first process petitions for investors for whom a visa is either now or will soon be available. In other words, for those petitioners whose countries are subject to retrogression, their I-526E Petitions will remain pending adjudication until the investor’s priority date becomes or is near current.

Whilst this does not change processing times for Chinese or Indian investors, who are currently subjected to visa retrogression, those investors who are either not subject to retrogression or whose priority date is current, will, under this new policy, be eligible for adjudication.

However, with the new pool of reserved EB-5 visas established by the EB-5 Reform and Integrity Act of 2022, those same investors could speed up their EB-5 processing time by choosing to invest in a TEA project.

The following visa set-aside rules apply:

High-unemployment TEAs:     10%
Rural TEAs:     20% set aside and priority (faster) processing
Infrastructure projects:    2%

As of the date hereof, no country is experiencing visa retrogression for any of the above categories. Visa priority dates are updated each month via the Visa Bulletin, which can be accessed via this link: [INSERT LINK].

Step 3: Two-year period of conditional residency

Once an I-526/E petition has been approved, the EB-5 investor, their spouse, and unmarried children under the age of 21 can apply for conditional lawful permanent resident status.

If they’re already living within the United States at the time of approval, they’ll need to file Form I-485 for adjustment of their status. If living abroad, they are required to file Form DS-260. It’s highly recommended to complete these EB-5 steps with the help of an experienced immigration lawyer.

Filing I-485 for investors living in the United States

Form I-485, Application to Register Permanent Resident or Adjust Status, is submitted by those within the United States to USCIS for approval, along with these requirements:

• Two recent photographs of the applicant and his/her dependents.
• Personal records, such as birth, marriage, and divorce certificates, as well as criminal history, medical records, and biographical information.
• Biometrics, including fingerprints.
• Filing fees.

The average processing time for I-485 petitions can be accessed via the USCIS processing times page: [INSERT LINK]

Filing DS-260 for investors living outside the U.S.

Once an investor’s I-526/ I-526E petition is approved, the application is transferred to the National Visa Center (NVC). Form DS-260, Online Immigrant Visa Application, is submitted by the investor and forwarded by the NVC to the investor’s local U.S. consulate or embassy, which will then provide the investor with a visa interview date. To receive final approval for the issuance of an immigrant visa, the following is necessary:

• An interview at their U.S. consulate or embassy.
• Medical report.
• Personal documents, such as job history, military service, previous addresses, biographic information, and certificates, including birth, marriage, and divorce.

Foreign investors not living in the United States are required to file Form DS-260 in order to receive an EB-5 immigrant visa for conditional U.S. permanent residency. The processing time for DS-260 also varies for each individual case.

Final approval for two-year conditional permanent resident status

Once the I-485 or DS-260 petition or application has been approved and the EB-5 investor has received their conditional lawful permanent residence (CLPR), there’s a mandatory waiting period of two years.

During this two-year conditional residency period, the immigrant has the right to work and live anywhere in the United States. They must spend at least one year out of the two-year waiting period physically present on U.S. soil.

Step 4: Removal of conditions for permanent residency

Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, enables a foreign national to obtain their 10-year renewable permanent Green Card. Obtaining an EB-5 Green Card, whether conditional or unconditional, means that the immigrant, as an unconditional permanent resident, becomes subject to taxes and other U.S. laws.

They’re able to travel abroad with their original passports, as long as they’re physically present in the United States for at least six months out of every year.

Filing the I-829 petition for the removal of conditional status on an EB-5 Green Card

In order for the EB-5 applicant to become an unconditional permanent U.S. resident, they must submit Form I-829 to USCIS within 90 days before the end of the two-year waiting period from the date that the conditional green card was issued, i.e., “valid from” date.

Failure to submit I-829 within this time frame may result in the revocation of their EB-5 visa for permanent residency and physical deportation from the U.S. back to the EB-5 investor’s country of origin.

It’s important to pay close attention to the conditions of the I-829 approval process. The EB-5 investor will have to provide:

• Adequate proof to USCIS that the JCE was able to fulfill and maintain the job creation requirements of the EB-5 visa program for the entire two-year waiting period and that the capital investment has remained at risk during that whole time.
• Documentation of EB-5 investment funds and transparent tax returns.
• Sufficient personal background information and biometrics.
• Copies of immigrant and family’s conditional Green Cards.
• Payment for filing fees.

Processing times for the I-829 form vary, and the EB-5 applicant can keep track of the progress of their individual case on the official USCIS website for processing times.

To obtain final approval for the I-829 petition, applicants must pass a U.S. English language and civics test and attend an interview with USCIS. If the EB-5 investor is denied Form I-829 acceptance due to inadequate documentation, the investor can refile their petition with the required information until they’re able to gain approval.

How to become a U.S. citizen after receiving an EB-5 Green Card

There are two paths to U.S. citizenship—being born on U.S. soil or to a U.S. citizen, or becoming a naturalized citizen through USCIS.

If the foreign national wishes to pursue U.S. citizenship after following appropriate EB-5 steps and obtaining a Green Card, they can do so by filing Form N-400, Application for Naturalization. This must be after a period of five years from the time that the foreign national was first granted removal of conditions on their permanent residency visa.

The Immigration and Nationality Act (INA) details proceedings for the naturalization process. The entire naturalization process is relatively short if there are no unforeseen delays.

After naturalization, the EB-5 immigrant, as an official U.S. citizen, is able to:

• Vote or run in U.S. elections
• Register for military service
• Possess a U.S. passport
• Access various government benefits
• Access high-quality healthcare
• Access opportunities for higher education

Frequently Asked Questions

How long does it take to get a Green Card with EB-5?

Processing time for I-526/ I-526E forms varies depending on the number of applications that have been submitted. Your nationality may also have an impact on the processing time. For example, Chinese EB-5 applications are subject to visa retrogression as the demand for EB-5 visas exceeds the allocated per-country supply.

How many EB-5 visas are issued each year?

The number of visas available each year under the EB-5 program is limited to 10,000. Of these, 3,200 are reserved for TEA and infrastructure project investors. It’s important to note that this limited number includes investors, their spouses, and unmarried children under the age of 21.

Do EB-5 investors get their money back?

Yes, EB-5 investors should get their money back. EB-5 NCEs usually involve real estate or infrastructure projects, because they offer reliable returns and there are assets that can be sold to repay the investment.

However, as with all investments, risk is involved, and you could lose money. It’s important to choose an investment project that offers the best guarantees and returns, and perform thorough due diligence.

It’s also important to note that, should the project you invest in fail, you’ll likely suffer losses in addition to not getting your Green Card if the project fails to create the minimum required jobs.

What are the recent EB-5 policy changes?

The Reform and Integrity Act of 2022 aims to improve some of the issues that have plagued the EB-5 program in the past, which include poor management, breaches of contract, and instances of fraud and abuse.

Some of the other changes made to the EB-5 Program were:

• The minimum EB-5 investment for a TEA or infrastructure project increased from $500,000 to $800,000, while the minimum for a project outside of a TEA is now $1,050,000.
• A direct EB-5 investment may only be made by a solo EB-5 investor, whilst regional center investments can accept multiple EB-5 investors.
• All pooled EB-5 investments must be sponsored by a regional center.
• Every EB-5 investment project must produce at least one direct job.
• Forms I-526/E and I-485 may be filed at the same time.

Applying for a Green Card Is Easy with EB5AN

The EB-5 program is a great way for foreign investors to get a U.S. Green Card and enjoy all the benefits of permanent residency.

However, the application process can be difficult to navigate, especially if you don’t know what to expect.

If you need expert help applying for the EB-5 program, contact EB5AN. We’ll help you find a low-risk project to invest in and assist you throughout the EB-5 process.

Email us at info@eb5an.com, or you can phone or WhatsApp us at +1(561)386-5356. Alternatively, visit the EB5AN website’s contact page and leave us a message.