EB-5 Investor Visa

What is the EB-5 Visa?

The EB-5 visa allows foreign investors to obtain permanent residency (or “a green card”) by contributing to the job creation and growth of the U.S. economy. These investors are required to actively participate in new or struggling for-profit business and provide proof of creation of at least 10 U.S. jobs.

How Long Does the EB-5 Visa Last?

The EB-5 visa is conditional, meaning they expire in two years. You are required to illustrate a plan to hire and retain the required amount of workers in the business with which you are investing. If you are not able to meet this standard, your green card will be canceled after two years.

Recent Changes in Capital Investment Requirements

On November 21, 2019, The U.S. Department of Homeland Security enacted several changes to the EB-5 program.

  • The minimum investment required was raised to between $900,000 and $1.8 million (this amount will be adjusted for inflation every five years)
  • An investment of $900,000 is allowed only if contributing to a “TEA” or “targeted employment areas” (typically rural or high-unemployment areas) determined by the Department of Homeland Security (DHS)
  • Certain derivative family members who are lawful permanent residents must independently file to remove conditions on their permanent residence.  For example, if derivative family member is not included in the principal investor’s petition to remove conditions, he or she must file their own petition.

What is the Process of Applying for an EB-5 Visa?

Successfully obtaining permanent resident status through EB-5 is a two-step process:

  1. Initial Petition: File an initial visa petition with the USCIS explaining the investment and why you qualify.
  2. Removal of the Condition: Apply within two years of obtaining the conditional green card to lift the condition by demonstrating how the capital investment was placed at risk and providing proof that the requisite number of new workers have been hired. The two-year clock starts from the date the conditional green card has been granted.

Step 1: Initial Petition

Overseas Applicants

If you are an overseas investor, the petition approval is sent to the U.S. Consulate in your home country via the National Visa Center (NVC) where you and your family will be interviewed for immigrant visas. The NVC coordinates with the Consulate in setting up an interview date. Once the Consulate issues the visa, you may travel to the U.S. as a Conditional Immigrant. Your entrance into the U.S. as a conditional immigrant starts the two-year clock.

U.S. Applicants

If you are already in the U.S. in a lawful status when the USCIS approves the petition, you can opt to complete processing in the U.S. by filing an Adjustment of Status Application to become a conditional permanent resident. While the adjustment application is pending with the USCIS, the USCIS can issue you work authorization valid for one year and an Advance Parole travel document valid for one year. Once the Adjustment of Status is granted, the two-year clock begins to run.

Step 2: Removal of the Condition

You must apply to remove your conditions with the USCIS within a window of time beginning 1 year and 9 months after receiving conditional residence and no later than the second anniversary. Conditional residents who can document that the requisite funds were placed at risk and sustained and that 10 new jobs were created for US workers should have their conditions removed and receive permanent resident status.

How Do I Qualify for an EB-5 Visa?

There are four general requirements to qualify for the EB-5 Visa Program.

  1. The investor must place the requisite investment amount at risk in a commercial enterprise.
  2. The commercial enterprise must employ no fewer than 10 new full-time U.S. workers within two years of obtaining conditional permanent residency.
  3. The investor must document the source of the investment amount to show that it has not been obtained through unlawful means.
  4. The investor will be engaged in the management of the enterprise, either through day-to-day managerial control or through policy formation (e.g. member of the board of directors).

Choosing Between Investing Methods

The two methods of obtaining an EB-5 Visa include:

  1. Investing into a “regional center” or
  2. Direct investment in your own business.

Investing Into Regional Centers

An attractive method for many investors is contributing to organizations known as “regional centers.” Regional centers are designated and approved by the U.S. Citizenship and Immigration Services (USCIS). Through this process, you do not have to create your own business and can typically invest the lower required amount of $900,000 because most regional centers operate projects located in a TEA (targeted employment area) or rural area. Another advantage to investing in regional centers is that they are not required to demonstrate direct job creation and can count “indirect” jobs created by the main business.

Keep in mind that this program is not a permanent part of the U.S. Immigration Law, so Congress must continue to extend it. Consult an immigration law professional for the latest updates on regional centers and advice on which centers adequately take care of USCIS requirements. Also, these are for-profit entities, and as with any investment, carry their own degrees of risk. You should study different projects with care to determine which ones meet your risk tolerance level. Consider retaining a financial analyst to provide opinions on the financial viability, risks, marketing, safety, return, allocation of profit and loss, the industry overview and exit strategies.

The day-to-day operations of regional centers are typically handled by General Partners or a management team. As an investor, you retain a role in policy formation and do not maintain a purely passive role in regards to the investment. The aspect of not being involved in the day-to-day management of the company is an attractive feature to many investors, while others prefer a more hands-on approach.

Direct Investment

In order to acquire an EB-5 visa through direct investment in your own business, you must invest a minimum of $900,000 or $1.8 million into creating an original business, purchasing an existing business and reorganizing it so that a new commercial enterprise results.

Source of Funds

Qualifying capital investments may include cash, equipment, inventory and other tangible assets and must entirely come from you. Plus, the capital requirement for an EB-5 investment cannot be parked idle in a bank account and must be used for the commercial purposes of the business.

You must show that the funds have been obtained through lawful sources, requiring you to provide detailed tracing of where the funds came from including salaries, investments, gifts, or inheritances. The USCIS expects transparency in transactions with clearly identifiable paper trails and prefers to see your personal income tax returns to document the lawfully obtained funds.

Can My Family Members Obtain Lawful Permanent Resident Status?

Your spouse and unmarried children under the age of 21 may also obtain conditional green cards with you. Their conditions are typically lifted at the same time you apply to lift your condition.

Limitations

Number of Applicants Per Year

10,000 green cards are available to investors per year. There are additional limitations on the number of green cards awarded to investors from any one country. As a result, if more than 10,000 investors apply in a single year, or many of the applications come from your country in that year, you could be placed on a waiting list and prioritized based on when you applied.

Though this 10,000 limit has rarely been reached, in recent years, investors from China, Vietnam, and India are now being put on waiting lists due to high demand.

Risk Factors

Due to the investment rules and requirements, it is highly advised to retain an expert immigration lawyer to help you with this process. Unsuccessful attempts on your own can hurt future chances of obtaining an EB-5 visa and the “investment-first” policy could cost you a lot of money without securing a visa.

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