EB-5 Visa: Process & Requirements

 

The EB-5 Immigrant Investor Program (the “EB-5 Program”) offers benefits for both foreign nationals and the United States economy.

 

For the foreign national, the EB-5 Program offers an opportunity to obtain a green card and permanently live and work in the United States.

 

For the United States economy, the EB-5 Program provides capital investment and job creation.

 

This blog will discuss how to obtain an EB-5 visa under the EB-5 Program.

 

General Requirements for the EB-5 Program

 

There are six general requirements for the EB-5 Program, as follows:

 

  1. You need to make a certain dollar amount of capital investment.  This minimum dollar amount is currently either $1,050,000 or, if the investment is in a “targeted employment area”, $800,000.  A “targeted employment area” is either a “rural area” (any area which is not within a metropolitan statistical area or within the outer boundary of any city or town having a population of 20,000 or more) or an area that has experienced “high unemployment” (defined as at least 150% of the national average unemployment rate);
  2. Your capital investment must represent a “lawful source of funds”.  To meet this “lawful source of funds” requirement, you must show that the capital investment was obtained through lawful means, including not by criminal activity;
  3. Your capital investment must be “at risk”.  The capital investment must be subject to a risk of loss and a chance for gain.  You cannot have a guaranteed return with respect to the capital investment;
  4. Your capital investment must be made in a “new commercial enterprise” that was established either after November 29, 1990 or on or before November 29, 1990 that was either purchased and the existing business is restructured or reorganized to result in a “new commercial enterprise” or expanded through the investment to result in at least a 40% increase in net worth or number of employees.  A “new commercial enterprise” is “any for-profit activity formed for the ongoing conduct of lawful business” (including such common forms of doing business as a sole proprietorship, partnership, corporation, or limited liability company);
  5. You must be engaged in the management of the “new commercial enterprise”, either through the exercise of day-to-day managerial responsibility or through policy formulation.  You can meet this “management” requirement, including as a corporate officer, a member of the corporate board of directors, or a limited partner in a limited partnership; and
  6. Your capital investment is used to create “full-time positions” for at least 10 “qualifying employees”.  A “full-time position” requires a minimum of 35 working hours per week.  A “qualifying employee” is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States (excluding investors under the EB-5 Program and their spouses and children).  Independent contractors, seasonal employees, and temporary employees will not meet the “job creation” requirement to obtain an EB-5 visa.

 

Direct Investments under the EB-5 Program

 

One way to qualify under the EB-5 Program is to make a direct investment in your own business that you start in the United States.  You then would need to directly invest the necessary minimum capital investment amount in your business (which would be the “new commercial enterprise”).  Your business also then would need to directly employ the necessary 10 “qualifying employees” in “full-time positions”.

 

If your direct investment is in a “targeted employment area”, you can qualify for the lower capital investment amount of $800,000.

 

Regional Centers

 

Another way to qualify under the EB-5 Program is to make an investment in a regional center.  A regional center is an economic unit, public or private, in the United States that is involved with promoting economic growth.  U.S. Citizenship and Immigration Services (“USCIS”) designates regional centers for participation in the EB-5 Program.

 

With use of a regional center to qualify under the EB-5 program, you then would need to invest the necessary minimum capital investment amount through the regional center (which would create or be associated with the “new commercial enterprise”).  One advantage of a regional center is that it can permit another type of investment that can qualify for the lower minimum capital investment amount of $800,000 – an “infrastructure project”.  An “infrastructure project” generally is a capital investment project, administered by a governmental entity, that provides financing for maintaining, improving, or constructing a public works project.

 

A second advantage of a regional center concerns its more liberal analysis to create “full-time positions” for at least 10 “qualifying employees”.  For a regional center, this “job creation” requirement can be met from both direct jobs and indirect jobs.  While the “new commercial enterprise” is the employer for direct jobs, with indirect jobs, the “new commercial enterprise” is not the employer, but its activities create the indirect jobs.  Up to 90 percent of the “job creation” requirement can be met through indirect jobs in a regional center investment, which makes it easier to meet the “job creation” requirement than in a direct investment.

 

A list of approved regional centers is available at uscis.gov.

 

Application Process for EB-5 Visas

 

To apply for an EB-5 visa:

 

  • The first step is to file either (a) if you are not making a regional center investment, Form I-526, “Immigrant Petition by Standalone Investor”, or (b) if you are making a regional center investment, Form I-526E, “Immigrant Petition by Regional Center Investor”.  These Forms are both filed with USCIS.  These Forms require information about you, the “new commercial enterprise” (including a business plan), and your investment.
  • If your Form I-526 or Form I-526E is approved, the next step is to file either (a) if you are not in the United States, Form DS-260, “Application for Immigrant Visa and Alien Registration”, with the U.S. Department of State, or (b) if you are in the United States, Form I-485, “Application to Register Permanent Residence or Adjust Status”, with USCIS.  Upon the approval of these Forms, you will be granted conditional lawful permanent residence in the United States for two years.  Such conditional lawful permanent residence generally conveys the same rights as lawful permanent residence, except that it expires in two years.
  • To convert your conditional lawful permanent residence to lawful permanent residence, you need to file Form I-829, “Petition by Investor to Remove Conditions on Permanent Resident Status”, with USCIS, within the 90-day period immediately before the expiration date of your conditional lawful permanent residence.  As part of the Form I-829 filing, you need to provide evidence that you “sustained” your capital investment in the “new commercial enterprise” throughout the period of conditional lawful permanent residence, and your capital investment created or can be expected to create, within a “reasonable time”, the necessary “full-time positions” for at least 10 “qualifying” employees.

 

General Processing Issues for EB-5 Visas

 

In seeking an EB-5 visa, you should keep in mind the following general processing issues:

 

  • As part of your Form I-526 or Form I-526E filing, to meet the “lawful source of funds” requirement, you need to show the source of the funds for your capital investment, including, as is applicable, bank account statements, real estate transactions, tax returns, financial statements, gift documents, or loan documents.
  • If you are relying on indirect jobs to meet the “job creation” requirement for a regional center investment, you likely will need to include with your EB-5 filing,s the report of an economist that shows the methodology for how the number of indirect jobs was determined.

 

Family Members and EB-5 Visas

 

Your spouse and unmarried children under the age of 21 also can qualify for an EB-5 visa as derivative beneficiaries of your approved EB-5 petition.

 

Conclusion

 

The EB-5 visa offers the dual benefits of a green card for foreign nationals and economic growth for the United States economy.  However, it is not easy to realize these benefits, as the EB-5 visa is among the most complicated immigration benefits under the U.S. immigration system.  Given the inherent complexity of the EB-5 visa, it is vital that an EB-5 visa applicant obtain the counsel of a U.S. immigration attorney who has significant knowledge and experience concerning the EB-5 visa application process.  Ashoori Law has years of experience helping foreign nationals with their EB-5 visa applications and can offer you the professional guidance that you are seeking to successfully pursue your EB-5 visa.

 

We thank you for reading this blog.  Please feel free to contact us with any questions.  We look forward to continuing to provide you with information about U.S. immigration law topics as your trusted source on U.S. immigration law.

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