The DS-260 Application: Everything EB-5 Investors Need to Know

Any foreign national who wishes to immigrate and live permanently in the United States must apply to United States Citizenship and Immigration Services (USCIS) for an immigrant visa. The Online Immigrant Visa Application is known as Form DS-260.

In this article, you’ll find all you need to know about DS-260, including its relevance to the EB-5 Immigrant Investor Program.

The EB-5 Immigrant Investor Program

In 1990, Congress established the EB-5 program to stimulate economic growth in the United States by encouraging foreign investment in U.S. businesses, referred to as new commercial enterprises (NCEs), and creating jobs for U.S. workers. In return for their investment, foreign nationals and their immediate family members (spouse and unmarried children under 21) become eligible for conditional Green Cards, allowing them to live and work in the United States. This specific visa category is valid for two years and leads to permanent Green Cards if the investor complies with all program regulations.

Requirements for EB-5 Investors

If a foreign national wishes to move permanently to the United States, then the EB-5 program is considered to be the quickest and most straightforward way to do so. A potential immigrant simply needs to invest a minimum amount in an NCE that creates jobs for U.S. workers. That minimum is $800,000 if the investment is in a targeted employment area (TEA) or $1,050,000 if it is not.

A TEA is a rural area with a population of less than 20,000 or an area where the unemployment level is 150% of the national average. EB5AN has developed a TEA Map that shows within seconds whether the location of an EB5 project qualifies as a TEA.

The investment in an NCE must also create at least ten full-time jobs for U.S. workers.

The EB-5 Investment Models

EB5 investors can choose one of two investment models. They can invest directly in an NCE or pool their funds with other EB5 investors in an EB5 project sponsored by a regional center. Regional centers are economic entities approved by USCIS. They manage EB5 investment capital across multiple projects in the EB5 industry and ensure that USCIS requirements are met.

The direct investment approach is most attractive to an investor who wishes to be involved in the day-to-day operation of the NCE and make crucial decisions regarding the project. Typically, retail, wholesale trade, service, manufacturing, technology, and agricultural businesses make good direct investment options.

In contrast, regional center EB-5 projects tend to be large real estate developments. The regional center model has proven to be the most popular among EB5 investors.

The Role of the DS-260 Application

Form DS-260 is an immigrant visa application that is filed by foreign nationals who intend to move permanently to the United States; this includes EB-5 investors who live abroad. (Form DS230 was previously used for this purpose.) Once approved, the applicant becomes the holder of an EB5 immigrant visa and can reside in the United States. If the immigrant is already living in the United States, then they must submit Form I-485, which requests an amendment to the status of their current immigrant visa to allow permanent residency.

To start their journey to permanent residency, a foreign investor must first choose a qualifying EB5 project and invest their capital in it. They can then file Form I-526E, Immigrant Petition by Regional Center Investor (or Form I-526 if investing under the direct investment model), with USCIS.

Requirements for Forms I-526 and I-526E

In filing Form I-526E or I-526, the investor must demonstrate that:

• They have invested the minimum required funds in a USCIS-compliant EB-5 project either directly or through an approved regional center.
• If they have invested the minimum amount of $800,000, their chosen project is located in a TEA.
• The required number of jobs will be created.
• Their investment funds have been lawfully sourced. Legal sources include salaries, dividends, gifts from family or friends, inheritances, proceeds from the sale of real estate, and the sale of stocks.

USCIS will forward the I-526E petition to the National Visa Center (NVC) once it is approved. The NVC assigns a case number to the petition and sends a request to the EB5 investor for fees to be paid. The NVC will then request that the investor and each dependent submit a DS-260 application form and associated documentation.

Once approved, the investor and their family are granted conditional permanent resident status and can enter the United States.

Removing Conditions on an EB-5 Green Card

This conditional Green Card is valid for two years. Within 90 days before its expiry, the EB5 investor and their family members must file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, in order to have the conditions on their visas removed. This is the final step in the EB-5 immigration process.

Requirements for Form I-829

In filing Form I-829, the immigrant investor must demonstrate that they have met all the requirements of the EB-5 program. These include:

• Providing evidence that the NCE existed for the duration of the investor’s two-year conditional residence.
• Providing proof that the minimum required amount was invested.
• Showing that ten full-time jobs were created.

The petitioner’s conditional residency is extended while the I-829 is being processed. Once approved, the investor and their family become permanent residents of the United States.

Form DS-260 Requirements

Form DS 260 requires the following information from each applicant:

• Their NVC case number.
• Their invoice I.D. number.
• Personal details.
• Travel documentation is sufficient to establish identity and nationality.
• Present address.
• Social media accounts used by the applicant.
• Family information such as details of parents, spouse(s), and children.
• Past U.S. travel information.
• Work/education/training history.
• Security and background information which includes:
  • Medical/health information.
  • Criminal history.
  • Immigration law violations.

Applications must be submitted in English.

Processing and the Consular Interview

Processing times will be affected by the complexity of the application. For example, an applicant with an extensive travel history to countries that may pose security risks, or with a present address in a high-risk country, may be closely scrutinized.

Once the application has been processed, an immigration officer will send an interview appointment package to the applicant that sets up a time and date for a visa interview at one of the relevant government agencies: a U.S. embassy or consular office. A consular officer will determine whether the applicant is eligible for an immigrant visa. Digital fingerprint scans are taken at the interview.

The EB-5 Process Timeline

The following timeline summarizes the steps in the EB-5 process that an EB5 investor must take.

• Select a qualifying EB-5 project.
• Invest a minimum of $800,000 in the project if it is located in a TEA or $1,050,000 if it is outside a TEA.
• If investing under the direct investment model, submit form I-526 to USCIS, or if investing through a regional center, submit form I-526E.
• Once approved, the investor and each family member submits Form DS-260.
• An immigration officer will schedule a date and time to interview the applicant(s), if they live outside the United States.
• Approval of DS-260 results in the grant of an EB5 immigrant visa (conditional Green Card), allowing the applicant to live and work in the United States. It is valid for a period of two years.
• Prior to the expiry of the EB5 visa, the applicant submits Form I-829 to request that the conditions on the EB5 immigrant visa be removed.
• On removal of the conditions, the applicant becomes a permanent resident of the United States and the holder of a Green Card.

Begin the EB-5 Immigration Process with EB5AN

The EB5 program is a popular means of gaining permanent residency in the United States for foreign nationals and their families. To learn more about the EB5 program, contact EB5AN for expert advice and assistance.