What is the Visa Success Rate for EB-5 Investors?

The EB-5 visa offers wonderful opportunities.

The EB 5 immigrant investor visa program is one of the quickest and most reliable ways to receive a U.S. green card. An investor, their spouse, and all of their unmarried children under the age of 21 can be eligible to receive permanent residency status in the United States for a single investment.

Through an EB-5 investment, families can live, work, travel, and study anywhere in the United States, without restrictions. Plus, EB 5 immigrant investors who have achieved green card status can apply for full U.S. citizenship just five years after establishing permanent residency.

While the EB 5 process is certainly complicated and requires the help of an immigration attorney, historic data on the EB 5 success rate promises that, for the majority of eligible EB 5 immigrant investors, the process will be worth it.

In this article, we are going to cover everything that an immigrant investor needs to know to successfully obtain an EB-5 investment visa and establish U.S. permanent residency for their family.

The EB-5 Investor Visa: A Summary

The EB-5 Immigrant Investor Program is a federal immigration program designed to encourage investment in new businesses and communities in need of economic development throughout the United States.

The program is administered by United States Citizenship and Immigration Services (USCIS), which is itself a branch of the U.S. Department of Homeland Security (DHS).

Immigrant investors must make a minimum investment of $1,050,000 in a new commercial enterprise and prove that their investment created or preserved 10 full-time jobs for U.S. workers, jobs that each last a minimum of two years.

“At-Risk” Investments

The EB 5 investment must be “at risk” for those two years. This does not mean that the investor must make a “risky” investment. In fact, investors are strongly encouraged to perform due diligence when selecting an EB-5 project.

“At risk” simply means that an EB 5 investment must be a real investment, with the capital irrevocably committed, and not a guaranteed return.

EB5AN provides a free EB-5 Project Risk Assessment Questionnaire tool to help immigrant investors choose the best EB 5 project for their green card needs.

Targeted Employment Areas

The required minimum investment is lowered to $800,000 if the chosen new commercial enterprise– or “EB 5 project”– is located in a targeted employment area (TEA).

TEAs are either rural areas or areas of high unemployment, as designated by U.S. census data and USCIS criteria.

EB5 Affiliate Network (EB5AN) keeps a free TEA map on its website that is always up-to-date.

Regional Centers

A regional center is an independent EB-5 “agency” licensed by USCIS to pool multiple EB-5 investments into larger projects and manage the investments of multiple immigrant investors.

The overwhelming majority of investors choose to invest in an new commercial enterprise through the EB-5 Regional Center program. Investing through regional centers allows immigrant investors significant advantages over an independent or “direct” investment.

If immigrant investors invest through EB-5 regional centers, they can count both direct job creation and indirect job creation towards their required 10 jobs. If they invest in a new commercial enterprise independently, investors can only count direct jobs.

“Direct jobs” refers to those employees hired directly by a new commercial enterprise under a W-2 tax form, such as construction workers.

“Indirect jobs” are created by a regional center project’s overall economic impact, and make it much easier for investors to create the required employment and obtain their green cards.

Prove the Investment: Form I-526

After the investor makes the qualifying EB 5 investment, they consult with an immigration attorney to file either:

  • Form I-526, Immigrant Petition by a Standalone Investor (used by direct investors)
  • Form I-526E, Immigrant Petition by a Regional Center Investor

Immigrant investors file either Form I-526 or Form I-526E to demonstrate to USCIS their compliance with all tenets and laws of the EB 5 visa program.

The approval rate for I-526 petitions generally ranges from about 75% to above 80%.

Both of these forms require investors to provide supporting documentation about themselves, their finances, and all aspects of their EB 5 investment. For instance, investors must prove that all of the funds used in their EB-5 investment were “lawfully sourced”.

Whether investors are filing Form I-526 or Form I-526E, the evidence and documentation required to prove EB-5 compliance can be daunting, especially since every EB-5 investment and investor are different.

EB5AN strongly encourages immigrant investors to consult with an immigration attorney for help compiling and submitting an I-526 or I-526E petition.

Moving In: Conditional Permanent Residency

Once an immigrant investor’s I-526 or I526E petition is approved by USCIS, the investor and all of their eligible family members can apply for conditional permanent residence status in the United States. They receive conditional green cards.

The “conditions” of conditional permanent residency are that the green card is only valid for two years, and cannot be renewed.

Investors must apply for removal of conditions before the expiration of their two-year green card, as detailed in the next section below.

After I-526 petition approval, investors apply for conditional permanent resident status green card by one of two forms:

  • Form I-485, Application to Register Permanent Residence or Adjust Status
    • This petition is for investors who are already lawfully residing in the United States.
    • This form can be filed concurrently with an investor’s I-526E petition.
  • Form DS-260, Immigrant Visa and Alien Registration Application
    • This petition is for immigrant investors who do not already have an immigrant visa. Foreign investors residing overseas, not in the United States, must fill out this petition.
    • Form DS-260 is not administered by USCIS, but by the U.S. Department of State’s Bureau of Consular Affairs.

One Last Step: Removal of Conditions

During the final 90 days of an investor’s two-year conditional permanent residence, EB-5 immigrant investors must file the following:

  • Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status
    • This form is to remove all conditions from their conditional green card to become a full permanent resident of the United States.

The approval rate for I-829 petitions is generally above 90%.

Once approved, the investor, their spouse, and their eligible children each receive green cards, granting them full permanent residence in the United States.

This marks the completion of the EB-5 visa process.

Five years after first receiving conditional permanent resident status, investors, their spouses, and their eligible children can even apply to become naturalized citizens of the United States, if they choose.

What The Statistics Tell Us

USCIS is the U.S. federal government agency that administers and processes nearly all forms and petitions for the EB-5 Immigrant Investor Program, as well as all other citizenship and immigration visas, such as H-1B or refugee status.

USCIS keeps current and historical records of processing times and approval rates for each petition, with data points sometimes stretching back decades. USCIS publishes quarterly and annual EB-5 petition processing statistics on its Immigration and Citizenship Data page for Forms I-526, I-485, I-829, and nearly all other EB 5 visa forms.

The success rate for EB-5 investors obtaining visas fluctuates, as it is influenced by factors such as operational changes within the Immigrant Investor Program Office (IPO), the office within USCIS which administers the EB-5 program, and the completeness and accuracy of the petitions submitted.

Historical processing data shows us that the 2020-2022 global COVID-19 pandemic had an adverse effect on U.S. immigration, visa, and travel programs, including the EB 5 visa program.

Because of the pandemic and the global shutdown, USCIS processing times shot up 40% year over year from FY2020 to FY2021.

Approval rates, however, have historically trended quite constant. The pandemic did not severely impact the rate of approval, only the time it took to process.

The USCIS website also has an overview of USCIS data to facilitate a better understanding of how to read their processing records.

Comprehensive Due Diligence: The Essential Factor for EB-5 Investor Success

It is vital for immigrant investors to perform their due diligence on an EB-5 project.

Investors need to confirm whether or not a potential EB-5 project will allow them to fulfill the requirements of the EB-5 visa program.

Investors should also confirm whether or not they can reasonably expect to see a return on their EB-5 investment, if and when the project turns a profit.

Regional center investors need to conduct due diligence on the regional center itself as well as the EB-5 project and its project developers.

In order to ensure due diligence, EB-5 immigrant investors should consider the following factors:

  • Has the regional center had any successful visa petitions among past investors?
  • How long has the regional center been in operation?
  • Has USCIS officially approved the regional center’s EB-5 project?
  • Can the investor’s chosen EB 5 project support the required number of jobs?
  • Does the regional center have an investment fund redeployment plan?

Petition Denial: Why Does It Happen And What Can You Do About It?

Immigrant investors who perform due diligence from the start are usually successful throughout the entire EB 5 process. When application denials do occur, it is usually because of a problem with their documentation or failure to follow USCIS guidelines.

Common reasons for petition denial include:

  • Investing the incorrect amount
    • Investing less than the required minimum– $1,050,000; or $800,000 if located in a targeted employment area– will result in denial.
  • Investing in a project that is not eligible for the EB-5 program
    • Due diligence on whether your regional center EB-5 investment will actually create or preserve 10 full-time jobs is crucial.
  • Purposely misrepresenting information presented in an EB-5 application
  • Inaccuracies and inconsistencies in the information included in a petition or its supporting documents
    • Proving an investor meets the lawful source of funds requirement can be extremely time-consuming and tricky, depending on the source of funds. Many I-526 petitions get denied for this reason.
  • Children getting married or aging out of the program
    • When investors file their I-526 petitions, USCIS “freezes” the dependent children’s ages until their I-526 or I-526E application is approved.
    • Depending on the investor’s country, getting visa appointments at a U.S consulate and embassy can be a very long wait.
    • Waiting too long to start the EB-5 process, or to file Forms I-526 or I-526E, can result in children aging out.
    • A child’s ineligibility won’t impact the rest of their family’s eligibility.
  • Previous criminal convictions or security-related concerns
    • Background checks and full disclosure of court orders or convictions are required for all applicants.

The Importance of Careful Preparation

Preparation is key to making a successful EB 5 investment and achieving permanent residency. To increase the likelihood of successfully obtaining an EB5 investment visa, applicants should understand what each petition entails.

I-526 Best Practices

Accompanying documentation is key when compiling an I-526 petition.

  • New Commercial Enterprise
    • The new commercial enterprise must be eligible for the EB-5 program. Evidence can include articles of incorporation, limited partnership agreements, state business certificates, joint venture agreements, etc.
  • Investment
    • The investor must prove they have already irrevocably committed their capital. Evidence could include: bank statements, loan certificates, security agreements, promissory notes, etc.
  • Lawful Source of Funds
    • The investor must prove the money for investment was lawfully obtained. Potential evidence includes:
    • Bank statements, tax returns, securities statements, pay stubs, etc.
  • Investor Involvement
    • The investor must be involved to a degree in the management of the new commercial enterprise. Evidence could include:
    • Corporate documents, a description of the investor’s business duties.
  • Required Jobs
    • The investment must create or preserve 10 full-time jobs. Evidence can include:
    • A business plan with a hiring timetable, or an economic report that clearly demonstrates that the jobs will be created.

Immigration attorneys usually prepare Form I-526 or I-526E on behalf of immigrant investors.

I-829 Best Practices

This final step in the EB 5 process also requires accompanying documentation to prove total compliance with program regulations:

  • Copies of family’s green cards
  • Five years’ tax returns for the new commercial enterprise.
  • Proof of investment such as financial statements, bank statements.
  • Proof of required employment creation.
  • USCIS-required fees— filing fees, biometrics fees, etc.
  • Evidence of the investment creating jobs could include: W-2 forms, invoices, I-9 info, financial statements, receipts and proof of expenditures or payment.

When preparing Form I-829, applicants should track metrics in the original economic model from the beginning, and keep clear records of hard and soft costs, operational revenue numbers, jobs created, and cash flow.

Working with both an immigration attorney and a professional EB 5 consultant is recommended to ensure compliance with all the various forms and deadlines throughout the EB-5 visa process.

What Are The Odds Of EB-5 Visa Success?

Because the EB-5 program may be more complicated than it appears, especially when it comes to processes such as proving the sources of EB-5 investment funds and calculating job creation numbers, it may be best to approach an EB-5 professional for assistance.

EB5AN also offers valuable EB-5 resources that demystify the EB-5 visa process.

If immigrant investors follow the above points– carefully compile all required documentation with an attorney and/or EB 5 professional and vigorously track metrics from the initial new commercial enterprise economic model– an investor and their family should reasonably be able to receive green cards.

Reach out to EB5AN to learn how we can help you to increase your chances of immigration success through the EB- 5 program.

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