From Investment to Approval
Here’s what we’ll cover:
- The EB5 Process and Basic Requirements for NCE Qualification 2
- Direct And Regional Center Program Investments 2
- Required Initial Capital for an EB-5 Investment 3
- How to Speed Up the EB-5 Visa Process 3
- Determining Possible Financial Risk 3
- Filing Form I-526 for Conditional Permanent Residency 4
- Steps to Take in the Event of I-526 Denial 4
- Processing Time for Form I-526 4
- Impact of COVID-19 on the EB-5 Program 5
- EB-5 Reform and Integrity Act of 2022 5
- Filing I-485 for Investors Living In the United States 5
- Filing DS-260 for Investors Living In Their Home Country 6
- Final Approval for Two-Year Conditional Lawful Permanent Residence 6
- Filing the I-829 Petition for an EB5 Green Card 6
- How to Become a U.S. Citizen After Gaining Possession of an EB5 Green Card 7
The EB5 Steps to a Green Card
The EB-5 Immigrant Investor Program enables foreign investors to obtain an EB5 Green Card for permanent long-term residency in the United States. To qualify, foreign nationals invest in a new commercial enterprise (NCE) for the purpose of job creation. This process is carried out through United States Citizenship and Immigration Services (USCIS) and can be split into four separate EB 5 steps from start to finish.
We recommend obtaining legal support through an experienced EB-5 attorney.
Step 1: Selecting an Eligible EB-5 Project
Before selecting a suitable EB-5 commercial enterprise in which to invest, foreign investors must determine if they are eligible to apply. An EB-5 investor must have an annual income of $200,000 for two years before investing, or a net worth of more than $1,000,000 at the time of investment. A clean criminal record is also necessary.
The EB5 Process and Basic Requirements for NCE Qualification
For a project to be deemed eligible for an EB-5 investment, it must be an NCE that will reliably produce and sustain 10 new full-time jobs for a two-year period from the time of the initial investment. This NCE must be a for-profit commercial entity within the United States, and the employees must be U.S. citizens or legal residents with work authorization. If the enterprise is a struggling business that is already in existence, it must be restructured to reflect a new business model.
Direct And Regional Center Program Investments
There are two kinds of EB-5 investments possible through the EB-5 Immigrant Investor Program: direct investment and regional center investments. Both have their pros and cons, and investors should check thoroughly to see what best fits their own personal situation.
For direct investment projects:
- The EB-5 investor must invest straight into the NCE.
- The 10 required jobs must be created directly within the NCE itself.
- Generally, direct EB-5 investors can be more involved in the day-to-day functions of the company than with regional center program investments.
For regional center program investment projects:
- The capital investment takes place through an EB-5 regional center. Investments through the regional center program involve limited partnership with other EB-5 investors in an NCE that distributes the EB-5 funds to the actual job-creating entity (JCE).
- 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 the 10-job requirement.
- It is possible to take a more passive role in the company as a partner who simply votes on company policies, which can be beneficial for many investors.
Required Initial Capital for an EB-5 Investment
Both kinds of investments can be made in targeted employment areas (TEAs), which have been designated as either rural or high unemployment. The advantage of EB-5 projects located within a TEA lies in a lower minimum investment capital. For TEA projects, as well as some government infrastructure projects, the EB 5 minimum investment is $800,000. This is intended to make TEAs an attractive option for many EB-5 investors in order to stimulate the local economy. For all commercial enterprises located outside TEAs, the required investment is $1,050,000.
How to Speed Up the EB-5 Visa Process
Those who invest in TEAs may receive priority EB-5 visa processing through a certain number of reserved visas that are set aside each year. This can be a big deciding factor for many immigrants who want to obtain their EB-5 Green Cards as quickly as possible.
If a project has exemplar approval, this means the project was already submitted to USCIS for review by another investor as part of their I-526 petition and has been approved as suitable for further EB5 investments. This can speed up the process for the investor, as USCIS won’t need to review the information again and will instead place its focus on the investor’s source-of-funds report.
EB5 investment regional centers can help a foreign national more easily find eligible commercial enterprises that meet USCIS requirements, as well as legal resources and expertise with the EB5 Green Card program.
Determining Possible Financial Risk
There is always some risk involved in an EB-5 investment for both investors and project developers. EB-5 investors can do the following to mitigate the level of financial risk:
- Make sure the developer has enough of their own equity in the project to justify investment, as this often indicates their faith in the likelihood of the commercial enterprise to succeed.
- The ideal capital stack for EB-5 investment should indicate different sources of funds such as developer equity, committed bank loans, and dedicated EB-5 capital. We recommend around 15-20% developer equity, 25-50% EB-5 capital, and the rest in secured loans from trustworthy financial institutions.
- EB-5 investors should look for a project that will return their loaned investment capital by the end of the required at-risk period of two years, around the time they will be filing the final I-829 petition for removal of conditions on permanent U.S. residency.
The required capital investment for a specific NCE is often the deciding factor in where the investor chooses to place their funds. The EB-5 investor must establish how much capital they can afford and what kind of projects they are specifically eligible for to find the right EB-5 investment.
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 required capital is met, the investor must sign a subscription agreement with the NCE to enter into an official partnership. Then, the foreign national must transfer the EB-5 investment funds to an escrow account. From there, it can be distributed to the project as needed and remain at-risk per EB-5 Immigrant Investor program requirements.
Filing Form I-526 for Conditional Permanent Residency
Form I-526 is the first application an investor makes to USCIS that details the investor’s eligibility for the EB-5 visa program. Once approved, the EB-5 investor can then file for a temporary Green Card.
After investing in an EB-5 project, the I-526 petition must be filed with all required accompanying documentation, preferably 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 NCE will create 10 full-time jobs for a two-year period.
- All investment capital was acquired by legal means.
- The EB-5 investor is involved in company development through management of day-to-day proceedings or by making policy decisions.
When filing for an EB5 Green Card, it is essential to have exact documentation of all sources of capital used for the investment. The evidence may include bank statements, secured loan agreements, and subscription agreements. Any mistakes made can either postpone approval for a significant period of time while further evidence is gathered or result in outright rejection of the EB-5 application.
Steps to Take in the Event of I-526 Denial
There are many reasons an I-526 petition might be rejected. This could include incomplete or inaccurate documentation, insufficient investment capital or filing fees, or lack of potential 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 I-526 application reassessed after ensuring that any insufficient documentation that resulted in the initial rejection has been rectified.
- File an appeal with the Administrative Appeals Office.
- File an entirely new EB-5 application with thorough proof of eligibility.
Before investing in an EB-5 project, the investor should check whether or not it has a denial refund guarantee, as well as the assets to back up the guarantee. If the I-526 petition is rejected, the investor’s EB-5 capital commitment will be returned to them in full within a period of 60-90 days.
Processing Time for Form I-526
I-526 petition processing can vary greatly for each EB-5 investor. Different factors affect processing time, such as whether or not the NCE is located in a TEA, if the project already has exemplar approval, or the accuracy of both investor and enterprise documents. Immigrants who have filed for their EB 5 Green Card should have ample time available to wait.
Impact of COVID-19 on the EB-5 Program
The COVID-19 pandemic brought significant change to the EB-5 Immigrant Investor Program. A visa availability approach was put into effect on March 31, 2020, which meant that processing priority is now based on the foreign national’s land of origin instead of when the EB-5 petition is filed. Investors from Mainland China may experience slower EB-5 processing times than investors from other foreign countries. However, with the new pool of reserved EB-5 visas established by the EB-5 Reform and Integrity Act of 2022, those same investors will have the option of basically skipping the line by choosing a TEA project.
EB-5 Reform and Integrity Act of 2022
USCIS is currently in the process of updating EB-5 policy to reflect changes made to the immigrant investor program in March 2022 by the EB-5 Reform and Integrity Act. EB-5 regional centers have been reauthorized until September 2027. Some of the other changes to the EB5 Green Card program were these:
- The minimum EB-5 investment for a TEA or infrastructure project increased to $800,000, while the minimum for a project outside of a TEA is now $1,050,000.
- Solo EB-5 investors are no longer able to make investments through the regional center program, but must invest directly into the EB-5 NCE of their choice.
- All pooled EB-5 investments must be sponsored by an RC.
- Every EB-5 investment project must produce at least one direct job.
- EB-5 investment targeted employment areas are only designated by USCIS and no other entity.
- Forms I-526 and I-485 may be filed at the same time.
Step 3: Two-Year Period of Conditional Residency
Once an I-526 petition has gained approval, the EB-5 investor and all of their dependents are then able to apply for conditional permanent U.S. resident status.
If they are already living within the United States at the time of approval, they will need to file Form I-485. If living abroad, they are required to file Form DS-260. It is highly recommended to complete these EB5 steps with the help of an experienced immigration lawyer.
Filing I-485 for Investors Living In the United States
The I-485 form, or 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.
- Personal records such as birth, marriage and divorce certificates, as well as criminal history, medical records, and biographical information.
- Proof of eligibility and I-526 approval.
- Biometrics, including fingerprints.
- Filing fees.
The processing time for I-485 is different for each investor and can take a matter of months to more than a year.
Filing DS-260 for Investors Living In Their Home Country
The DS-260 form, or Online Immigrant Visa Application, is filed by those within their home country at their U.S. consulate or embassy, which then submits it to the National Visa Association. To receive final approval, the following is necessary:
- An interview at their U.S. consulate or embassy.
- 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 in each individual case.
Final Approval for Two-Year Conditional Lawful Permanent Residence
Once the I-485 or DS-260 petition has been approved and the EB-5 investor has received their conditional lawful permanent residence (CLPR), there is a mandatory waiting period of two years. During this two-year conditional residency period, the immigrant possesses 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, or Petition by Investor to Remove Conditions on Permanent Resident Status, enables a foreign national to obtain their 10-year renewable Green Card. Obtaining an EB5 Green Card means that the immigrant, as an unconditional permanent resident, becomes subject to taxes and other U.S. laws. They are able to travel abroad with their original passports as long as they maintain the physical requirements of being actually present in the United States six months out of every year.
Filing the I-829 Petition for an EB5 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 no less than 90 days before the end of the two-year waiting period from the time of I-526 approval. Failure to submit I-829 within this time frame may result not only in the revocation of their EB-5 visa for permanent residency but also in physical deportation from the U.S. back to the EB-5 investor’s country of origin.
It is 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 NCE in which they initially invested has been able to fulfill and maintain the 10-job 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 green cards.
- Payment for filing fees.
Processing times for the I-829 vary, and the EB-5 applicant can keep track of the progress of their individual case at the official USCIS website for processing times.
To obtain final approval for the I-829 petition, they must be able to 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 I-829 with the necessary information until they are able to gain USCIS approval.
How to Become a U.S. Citizen After Gaining Possession of an EB5 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 is 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, and has access to various government benefits, high-quality medical healthcare and opportunities for higher education.
Summary of the EB5 Steps for a Green Card
If foreign investors pay careful attention to all of the EB5 steps, it can result in possession of a renewable 10-year green card and the advantages of permanent U.S. residency. The EB5 Green Card process can be summed up as follows:
- The eligibility of an EB-5 project is determined.
- The EB-5 investor transfers capital to the NCE, then files Form I-526 to United States Citizenship and Immigration Services.
- Once approved, there is a two-year conditional waiting period.
- The EB-5 investor files Form I-829 for removal of conditions and receives a 10-year renewable green card.
- The EB-5 immigrant and dependents can then permanently work and live within the U.S.
Foreign nationals can always benefit from consulting EB-5 experts such as EB5 Affiliate Network (EB5AN) or by getting advice from legal attorneys with extensive EB-5 experience. EB5AN can be reached for more information about regional center sponsorship and the EB 5 process through email at firstname.lastname@example.org, by phone or WhatsApp +1(561)386-5356, or the EB5AN website’s contact page.