A Realistic EB-5 Timeline for New Investors

Authors: Samuel B. Silverman and Calvin Azadi, Esq.

The EB-5 visa is one of the fastest ways a foreign national can secure permanent resident status in the United States. Created in 1990 with the aim of stimulating the economy through foreign capital, the EB-5 Immigrant Investor Program offers Green Cards to investors and their families in exchange for a minimum investment in a new commercial enterprise (NCE) that generates jobs for qualified U.S. workers.

The EB-5 process comprises several stages, which can take anywhere from a few months to several years to complete before an applicant can receive a Green Card. Primarily, two main factors determine the timeline of an investor’s EB-5 journey—the petition processing time and visa availability.

With the number of EB-5 applications escalating in recent years, the limited annual availability of visas caused huge backlogs for high-demand countries, namely India and China. Petition processing constraints of the United States Citizenship and Immigration Services (USCIS)—the federal agency that administers the program—also resulted in long waiting times for applicants.

However, the EB-5 program has undergone a complete overhaul after the implementation of the EB-5 Reform and Integrity Act of 2022 (RIA). Several innovative provisions in the RIA have been highly effective in reducing the EB-5 visa processing time by years.

In this article, we will discuss the EB-5 timeline for new investors and understand how rural investments can expedite the immigration process.

Project Selection and Investment

Before investors choose to invest in an EB-5 project, they must carefully review the offering documents and conduct due diligence on the investment. After project selection, they need to make the qualifying investment in the new commercial enterprise (NCE) and arrange the necessary documentation for I-526E filing.

Before filing their Form I-526E and after choosing a project to invest in and retaining immigration counsel, regional center investors need to complete a few other steps:

1. Provide Accredited Investor Letter

EB-5 applicants who want to invest in a regional center-sponsored project typically need to verify their accredited investor status by providing an accredited investor certification letter. To be an accredited investor, an EB-5 applicant must meet one of these criteria:

They must have a net worth of at least $1 million (excluding their primary home), either individually or combined with their spouse, or they must have had a personal income of $200,000 or a joint spousal income of $300,000 in the last two years, with the expectation of maintaining or increasing that income in the current year.

Your immigration attorney can help you obtain this letter.

2. Prepare Source of Funds Documentation

EB-5 applicants must submit a source-of-funds report to prove their investment funds were obtained legally, as required by USCIS. This report details how the money was earned or accumulated and typically includes financial statements, tax returns, and business records. Acceptable sources of funds include salary, business dividends, inheritance, gifts, real estate sales, and other legitimate means. This documentation is essential for the immigrant visa petition.

3. Sign the Subscription Agreement and Make the Investment

Completing the subscription agreement and escrow acknowledgment enables foreign nationals to invest in their chosen EB-5 project. It usually requires a few pages of biographic information to be filled out electronically, followed by a digital or hard copy signature. Once approved, the investor will receive a countersigned copy of the agreement. After this step, applicants can wire or transfer the capital investment amount and necessary fees to the escrow account indicated by the regional center/project team.

Overall, these are standard steps involved in the EB-5 process before petition filing and only take a few days.

Filing the I-526E Petition

Filing the I-526E petition is a crucial step in the EB-5 process, and it is typically prepared with an immigration attorney’s assistance. The immigration attorney will assess the documentation and ensure the petition is accurate and complete in every aspect.

The entire process—from selecting a suitable investment to filing the I-526E petition—can be completed within a few weeks, ideally with the consultation of experienced EB-5 professionals.

I-526E Approval

The I-526E petition approval could take just a few months or several years, depending on the category of the investment and the applicant’s area of chargeability. If we look at the USCIS Check Case Processing Times webpage, it shows the average processing time for pre-RIA (legacy) I-526 petitions as 91 months for China and 55 months for other investors.

For post-RIA investors, however, the I-526E processing time has reduced drastically, thanks to the new set-aside categories, which we will explore in more detail below. Many I-526E petitions have been approved in less than a year, with rural TEA petitions getting the fastest approvals.

The main reason behind swift I-526E approvals is the priority processing mandate for rural petitions. Under the RIA, rural investors get the unique advantage of expedited adjudication that is not available to any other EB-5 investment category. According to anecdotal evidence from many industry experts, new rural investors can expect an average processing time of six months for I-526E petitions.

Another important factor in I-526E processing time is whether the chosen EB-5 project has I-956F approval from USCIS. Under the EB-5 Reform and Integrity Act of 2022, regional center sponsors must submit Form I-956F for each project. Once USCIS approves this form, it confirms that the project is exemplar, meaning it meets EB-5 requirements, which can help speed up investor application approvals if their personal qualifications are also met.

Immigrant Visa Application

At this stage, investors can proceed with the immigrant visa (U.S. permanent residency/Green Card) application if a visa is available for issuance.

Whether or not investors can go ahead with the application is determined by the status of their category in the latest Visa Bulletin and the priority date assigned to their I-526E petition by USCIS.

For categories listed as “current” in the Visa Bulletin, applicants can apply for an immigrant visa immediately upon I-526E approval, regardless of their priority date. However, if the applicant’s category has a cut-off date, they must wait for visa availability, i.e., until their priority date falls on or before the corresponding cut-off date in the Visa Bulletin.

For many years, India and China have been the only countries facing visa retrogression and, therefore, are subject to cut-off dates in the Visa Bulletin. For this reason, applicants from both countries had to wait for many years for their Green Cards, even after the approval of their EB-5 petition.

However, Indian and Chinese investors now have a convenient way to avoid the long wait for visa availability with the new set-aside visa categories introduced under the RIA.

To encourage investments in targeted employment areas (TEAs), the new law has carved out a 32% reserved quota within the overall EB-5 visa allocation—20% for rural TEAs, 10% for high-unemployment TEAs, and 2% for specific infrastructure projects.

As a new category, the set-aside quota has surplus visas for qualifying investors from any country. It is estimated that the rural category has the most potential to provide fast-track Green Cards to investors, as it has the largest share of the quota and no estimated backlogs yet.

Recently, a Chinese investor received her Green Card within 10 months of filing the I-526E petition. Other investors have also obtained permanent resident status within a few months by investing in rural TEA set-aside projects.

Thanks to the set-side visa quota, visa availability is no longer a roadblock for new EB-5 investors.

Investors Applying From Abroad

Investors applying from outside of the United States need to go through consular processing at the U.S. consulate or embassy in their country of residence.

Following the I-526E approval, they will receive their visa fee bill from the National Visa Center (NVC). After paying the fees, they must submit Form DS-260 and the required supporting documents. The NVC will then process the application and schedule a visa interview for the applicants.

If approved, investors and their derivative beneficiaries will receive an immigrant visa, allowing them to move to the United States. Upon reaching the United States, they will receive their conditional Green Card, which is valid for two years.

Consular processing generally takes about six months, but processing times may vary depending on several factors, such as the complexity of the case and the workload at the consulate.

Investors Applying From Within the United States

Investors already residing in the United States on a valid non-immigrant visa do not need to go through consular processing. In fact, they can start enjoying Green Card benefits shortly after filing the I-526E petition. This is possible through the EB-5 concurrent filing provision introduced by the RIA.

Such investors can file Form I-485 for adjustment of status concurrently with Form I-526E without having to wait for the latter’s approval. I-485 petition filing will shift their immigration status to “pending adjustment,” allowing them to legally stay in the United States regardless of their non-immigrant visa status.

If required, they can also apply for employment authorization and a travel permit, after which they can freely work in the United States and travel abroad. Actual processing times for an EAD work permit (I-765) and an Advance Parole travel permit (I-131) can range from about four to 12 weeks, although these can vary depending on each applicant’s specific circumstances.

The EB-5 concurrent filing provision not only provides applicants with permanent resident benefits within a few weeks of applying but also accelerates their Green Card journey, as their I-526E and I-485 petitions are processed parallelly.

Another benefit of concurrent filing is that it allows the applicant to legally remain in the U.S. until the adjudication of their application, which is especially attractive to foreign nationals with an expiring visa status.

Although the facility of concurrent filing is not available to countries facing visa retrogression, applicants from backlogged countries such as China and India can enjoy concurrent filing by investing in set-aside rural, high-unemployment, or infrastructure TEA projects. Since there is no current retrogression in these categories, they qualify for concurrent filing.

Investors with aging-out children can also benefit from this fast-track option to make sure their children can receive their EB-5 Green Cards along with the principal investor.

In general, I-485 processing times may vary depending on the processing center involved and the specifics of a particular case. On average, it takes USCIS about a year to process Form I-485 for EB-5 applicants, after which they receive their conditional Green Cards.

I-829 Filing and Approval

Filing the I-829 petition is the last step in the EB-5 investor’s Green Card journey. Within the last 90 days before the expiry of their conditional Green Card, EB-5 applicants must file Form I-829 for the removal of conditions on their permanent residency.

The purpose of the I-829 petition is to demonstrate to USCIS with supporting documentation that the investor has met all requirements of the EB-5 program. After receiving a properly filed Form I-829, USCIS will send a receipt notice to each EB-5 applicant.

I-829 approval usually takes much longer than the validity of the conditional residency. Until then, the receipt notice serves to extend the applicants’ permanent resident status while their petition is under review.

As of September 2024, the average processing time for I-829 petitions per the USCIS website is 55 months.

Once the I-829 petition is approved, EB-5 applicants will receive lawful permanent resident status and a new unconditional Green Card, which can be renewed every 10 years. Eligible investors can apply for U.S. citizenship by naturalization after five years of permanent residency, which also includes the initial two-year conditional Green Card.

Seek Guidance to Secure Your Green Card Without Delay

The upgraded EB-5 program has created many new investment opportunities for entrepreneurs seeking U.S. permanent residency in a relatively short time. The EB-5 market has a range of offerings, but if you want a Green Card as quickly as possible, rural TEA investments are unquestionably your best option. Whatever your requirements, your immigration attorney can guide you in finding the most suitable project for your unique needs.

If you’d like to know more about EB-5 investments, you can also book a free call with EB5AN’s expert team.