Who Can Get an EB-5 Investment Green Card?

Learn more about the requirements for investment-based visa applicants.

What is an Investment-Based Green Card?

The EB-5 Immigrant Investor Program was established in 1990 to promote economic growth in the U.S. In exchange for making a qualifying EB5 investment in a new commercial enterprise, applicants and their dependent family members can receive an EB5 Green Card, also known as a lawful permanent resident visa. A new commercial enterprise is any new or previously existing business that was established or restructured after November 29, 1990.

This program grants the holder lawful permanent residency status in the U.S. and the option to pursue U.S. citizenship.

What Are the Eligibility Criteria for an EB-5 Green Card?

EB5 applicants must fulfill a variety of criteria to be eligible for an investment visa. Two important requirements are meeting the minimum capital investment amount and participating in the management of the NCE. The required investment capital depends on the chosen investment project; investing in a new commercial enterprise within a targeted employment area (TEA) is more affordable than a non-TEA investment.

While the invested capital is not limited to one particular source, it must have been obtained legally. Similarly, the level of involvement in the new commercial enterprise required of an investor varies according to the structure of the NCE. In both areas, appropriate documentation is needed to prove to United States Citizenship and Immigration Services (USCIS) that these two requisites are fulfilled. (USCIS is a subsidiary agency of the Department of Homeland Security.)

EB5 immigrant investors do not need prior business training or experience to participate in the program. Furthermore, foreign nationals from any country can apply for an EB-5 visa.

How Do EB-5 Investments Work?

EB5 applicants can choose between the direct and indirect investment models. In terms of qualifying for an EB-5 visa, all successful investments lead to the same outcome. However, an applicant’s immigration process can be simpler, easier, and more feasible based on the chosen investment type. Before making a decision, it is crucial for investors to thoroughly understand both options.

The major difference between the direct and indirect investment methods is how job creation is calculated. All EB-5 projects, regardless of the type, must fulfill the requirement of creating at least 10 jobs per investor. In turn, there are three kinds of employment in the EB-5 program: direct, indirect, and induced.

Direct jobs are those directly created by the new commercial enterprise, such as construction or operational positions. These must be full-time positions filled by qualified U.S. workers. Part-time positions cannot be counted, but job-sharing arrangements, in which employees divide the hours of a full-time position, are permissible.

Indirect jobs are created from the economic impact the investment has on the surrounding area. As the commercial enterprise purchases materials and services, jobs are created to support the demand. Induced jobs are generated when workers spend their income within the local community.

While only a small percentage of EB5 investors choose the direct investment model, it may be ideal for those who wish to open and operate their own businesses in the United States. By investing directly, applicants may have more control over their investment capital. However, direct investors can count only direct jobs towards the 10-job total. Additionally, they are personally responsible for proving job creation to USCIS.

The vast majority of EB5 investors choose the indirect investment method, which involves investing in a new commercial enterprise sponsored by an EB-5 regional center. The regional center program typically allows investors to take a more “hands-off” approach to the project.

Additionally, instead of being limited to direct jobs, regional center investors can count direct, indirect, and induced jobs towards the job creation total. This makes it much easier to meet the requirement and lowers the investor’s immigration risk.

What is the Minimum Investment for an EB-5 Green Card?

When the EB5 program was created in 1990, the minimum capital investment amount was set at $1,000,000. Targeted employment area commercial enterprises were eligible for a reduced investment threshold of $500,000.

Two years later, in 1992, the EB-5 Regional Center Program was established, adding an additional investment route. These thresholds remained unchanged until the implementation of the EB-5 Modernization Rule in 2019, which introduced an increased domestic capital investment amount of $1,800,000 for standard investments and $900,000 for TEAs.

The current minimum investment amounts have since been adjusted to $1,050,000 for non-TEA projects and $800,000 for TEA projects. (Public infrastructure projects also qualify for the reduced minimum investment amount.)

TEAs are locations—typically census tracts or strings of census tracts—determined by Congress to be in need of economic growth and job creation. As mentioned above, an investment in a TEA is much cheaper than a standard investment. The lower cost acts as an incentive for investors, which then benefits the U.S. by injecting investment capital into areas that need it the most.

There are two types of TEAs: rural and high unemployment.

To be classified as a rural TEA, a location must have a population of fewer than 20,000 people, not border a municipality with over 20,000 inhabitants, and not be within a metropolitan statistical area (MSA).

High-unemployment TEAs exhibit an unemployment rate of at least 150% of the national average.

How Long Will an Applicant’s Capital Remain Invested?

While the EB-5 timeline for every investor will be different, the immigration process takes several years to complete. As such, EB5 applicants need to be prepared to have their investment capital tied up in the business for the duration of the project. Furthermore, the capital must remain “at risk”, meaning there is no guarantee of capital return.

After an investor’s I-526 petition is approved, they can file for a two-year EB-5 visa.

Within the last 90 days of the conditional residency period, investors must file Form I-829, which effectively proves to the USCIS that the EB-5 project has followed its business plan and has met all necessary requirements, especially job creation. Approval grants the investor a permanent visa, which can be renewed continuously.

Are There Limits to the Number of EB-5 Visas Issued?

Immigration into the United States operates on a quota system, with a limited number of visas made available to foreign nationals every year. The EB-5 Immigrant Investor Program is no different, with the U.S. Department of State (DOS) determining the number of available EB-5 visas every fiscal year.

The implementation of the EB-5 Reform and Integrity Act on March 15, 2022 updated the previous rules. Now, 32% of the annual EB-5 visa allotment will be set aside for investments in TEAs and infrastructure projects: 20% for rural TEAs, 10% for high-unemployment TEAs, and 2% for infrastructure projects.

If any reserved visas are left over at the end of the fiscal year, they carry over to the next in the same categories.

Moreover, investors from each country are entitled to no more than 7% of the annual EB5 visa total. High-demand countries often exceed the available supply, leaving many applicants waiting for more visas to become available. This situation is known as visa retrogression.

Fortunately, the recent visa set-aside provision means that investors from countries with a visa backlog can effectively skip the waiting line and receive their EB-5 visas much sooner than before. As of June 2022, China is the only country experiencing immigrant visa retrogression.

Reading the Visa Bulletin

When a country experiences EB-5 visa retrogression, the DOS sets cut-off dates for visa applicants of this nationality to regulate which investors can move forward in their EB5 process. There are two types of cut-off dates: final action dates and dates for filing.

Final action dates indicate when investors can receive an EB-5 green card, while dates for filing regulate when investors can apply to the National Visa Center after I-526 petition approval. To determine whether these restrictions apply to an investor, they must look to their priority dates — the date on which USCIS receives and files an I-526 petition.

If an applicant’s priority date falls before the cut-off date, they are exempt from the restriction and can proceed with their EB5 immigration. However, investors whose priority dates fall after the cut-off date must wait. Cut-off dates for each country can be found in the Visa Bulletin, which is released monthly by the DOS.

In the past, cut-off dates often entailed extreme wait times for investors. Applicants from countries experiencing visa retrogression had to wait many months or even years before becoming eligible for an EB5 green card.

Now, visa set-asides offer a much quicker route to foreign nationals. Instead of taking a chance and risking extreme wait times, investing in one of the three set-aside visa categories allows the immigrant investor to receive a Green Card upon I-526 petition approval—regardless of their country’s immigrant visa availability.

How Can Applicants Begin Their Investment in an EB-5 Visa?

Obtaining an immigrant visa in the EB-5 category is a complex process. Applicants are highly encouraged to seek out immigration counsel before embarking on the EB-5 process; otherwise they run the risk of denial and losing time and capital.

Immigration attorneys can help investors to remain compliant with USCIS and EB-5 requirements. Additionally, the multiple petitions applicants file throughout the EB5 process require detailed and accurate documentation.

The Purpose of EB-5 Investment Green Cards

EB-5 investment-based green cards offer foreign nationals a route to U.S. residency through making a qualifying capital investment in the U.S. Applicants who meet the necessary USCIS requirements will receive an EB5 green card. They will eventually be able to pursue citizenship, if desired.

At the same time, new commercial enterprises can flourish through an injection of EB-5 investment funding, which is often available at below-market rates.

As a national leader in the EB-5 investment field, EB5 Affiliate Network (EB5AN) has helped hundreds of investors get started in the EB-5 process. Foreign nationals interested in the EB-5 program can take the next step by booking a call with EB5AN to learn more.

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