EB-5 Visa Lawyer

The EB-5 visa offers foreign nationals and their family members the opportunity to gain permanent residency status within the United States in exchange for a capital investment. Capital means cash and all real, personal, or mixed tangible assets owned and controlled by the immigrant investor. All capital will be valued at fair-market value in US dollars.

The definition of capital does not include:

• Assets acquired, directly or indirectly, by unlawful means (such as criminal activities);
• Capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between an immigrant investor and the new commercial enterprise;
• Capital invested with a guaranteed rate of return on the amount invested; or
• Capital invested that is subject to any agreement between the immigrant investor and the new commercial enterprise that provides the immigrant investor with the new commercial enterprise that provides the immigrant investor with a contractual right to repayment, except that the new commercial enterprise may have a buy back option that may be exercised solely at the discretion of the new commercial enterprise.

The minimum investments amount by filing date and investment location are:

A targeted employment area can be, at the time of investment, either:

• A rural area; or
• An area that has experienced high unemployment (defined as at least 150% of the national average unemployment rate). 

A rural area is any area other than an area within a metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more according to the most recent decennial census of the United States.

A high-unemployment area consists of the census tract or contiguous census tracts in which the new commercial enterprise is principally doing business, which may include any or all directly adjacent census tracts, if the weighted average unemployment for the specified area based on the labor force employment measure for each tract is 150% of the national unemployment average.

EB-5 regional center investors may choose to invest in a new commercial enterprise engaged in an infrastructure project. An infrastructure project is a capital investment project in a filed or approved business plan, which is administered by a governmental entity (such as a Federal, State, or local agency or authority) that is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment under the regional center program from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project of these set-aside visas that go unused are held in the same set-aside category for one more fiscal year. After the second fiscal year, any remaining unused immigrant visas in these set-aside categories are released to the unreserved EB-5 immigrant visa numbers during the third fiscal year.

The minimum investment towards a qualifying business project in the U.S. through regional centers or EB5 direct investments. An immigrant petition is a requirement in applying for a green card.

The Immigrant Investor Program (EB-5) was formed by the United States Congress Immigration Act of 1990. The EB-5 Visa program follows stricter rules and complex procedures. The attorneys at EB-5 Global Ventures in Boston, MA, have experience representing their clients involved with EB-5 immigration, including investors, project developers, and regional centers.

Benefits of an EB5 Visa

There are several immigration options a foreign investor has to receive permanent resident status. The EB5 visa is a multi-year process; however, it is a fairly quick way to gain U.S. permanent residency after a conditional green card.

The EB-5 visa is an excellent option for investors who have the financial means to make a substantial investment into a United States commercial enterprise to gain permanent resident status. When foreign investors create a new commercial enterprise in a high-employment area, or a rural area—known as a Targeted Employment Area (TEA)—the job creation helps the local economy of Boston and helps to invest in America.

When investing in a for-profit business, the investor is not required to have any experience or training in that specific business. Any for-profit activity performed can be whichever type of business the investor chooses.

There are currently hundreds of approved regional centers throughout the United States, and investors can choose what location they would prefer to apply for their EB-5 visa, giving them the freedom to live, study, work, and even retire in the United States through EB-5 immigration. An EB-5 visa is granted to foreign investors, their spouses, and any dependent children under the age of 21 on a two-year conditional basis. Unlike other visas, the EB-5 visa does not require the foreign investor to have a family member currently living in the United States to be approved for permanent residency status.

More importantly, the EB-5 visa gives a direct pathway to United States citizenship. With other visas, such as the E-2 Treaty Investors and Temporary Worker Visas, investors often have to come up with creative solutions to provide a pathway to citizenship for themselves and their family members.

The EB-5 Reform and Integrity Act regulates green cards for immigrant investors in an attempt to prevent fraud. Meeting with a Boston EB-5 visa attorney to discuss United States citizenship is the best way to start your journey toward United States citizenship.

Process of Getting an EB5 Visa

The EB-5 visa application process and requirements for EB-5 visa can be complex, and certain steps must be completed within a certain time frame or before certain legal filings. Your attorney can ensure you are staying on track with all deadlines. Typically, the EB5 visa process will begin with an immigrant investor filing an I-526 or I-526E. Presently, USCIS reports that I-526 currently takes 29 to 61 months to process, though this approximation can vary drastically depending on the regional center or project through which the investment is being made. Over the past decade, India has held domination of the EB-5 market along with other high-demand countries, such as Vietnam and China.

Currently, upon filing either Form I-526, Immigrant Petition by Investor, or I-526E Immigrant Petition by Regional Center Investor, the immigrant investor, who is physically present in the US, has the option to adjust their status by filing an I-485 Application to register for permanent residency status. If the immigrant investor is residing abroad upon the approval of either Form I-526 or I-526E he/she will be able to obtain an Immigrant Visa at the US Embassy by filing Form DS-260 Application.

After conditional entry is secured in the United States, the investment must continue for a reasonable period, and job creation must occur. Failure to follow any terms of the plan that has been set forth by the immigrant investor can jeopardize their ability to remove the conditions that have been placed on the green card.

Timing is of utmost importance; it is imperative that the EB-5 investor files the form I-829 to petition to have conditions removed no less than 90 days prior to the date of the two-year mark of the EB-5 applicant’s green card approval. Failure to make this timely filing of the I-829 form will cause significant complications in the process and could possibly result in the immigrant investor becoming ineligible to have their green card conditions removed.

What Are the EB-5 Job Creation Requirements

In addition to the minimum investment that must be made, part of the EB-5 Visa program is job creation and employment for qualified employees in the United States.

An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees.

• For a new commercial enterprise not located within a regional center, the new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly owned​ subsidiaries) must itself be the employer of the qualifying employees.
• For a new commercial enterprise located within a regional center, the new commercial enterprise can directly or indirectly create the full-time positions. Up to 90% of the job creation requirement for regional center investors may be met using indirect jobs.
  • Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
  • Indirect jobs are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise.
• In the case of a troubled business, the EB-5 investor may rely on job maintenance.
  • The investor must show that the number of existing employees is, or will be, no less than the pre-investment level for a period of at least two years.

A troubled business is one that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period before the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20% of the troubled business’ net worth before the loss. When determining whether the troubled business has been in existence for two years, USCIS will consider successors in interest to the troubled business when evaluating whether they have been in existence for the same period of time as the business they succeeded.

A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including a conditional resident, temporary resident, asylee, refugee, or a person residing in the United States under suspension of deportation. This definition does not include immigrant investors; their spouses, sons, or daughters; or any noncitizen in any nonimmigrant status (such as an H-1B nonimmigrant) or who is not authorized to work in the United States.

Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the regional center program, full-time employment also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.

A job-sharing arrangement where two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions even if, when combined, the positions meet the hourly requirement per week.

Jobs that are intermittent, temporary, seasonal, or transient do not qualify as permanent full-time jobs. However, jobs that are expected to last at least two years are generally not considered intermittent, temporary, seasonal, or transient.

Proof of Lawful Source of Funds

To document a source of funds for an EB-5 Immigrant Investor petition, you will need to provide the following documents:

• A personal statement explaining how you obtained your funds. This statement should include information about your employment history, business ventures, and any other sources of income.
• Bank statements showing the source and movement of your funds for the past 5 years. These statements should be certified by the bank.
• Tax returns for the past 5 years. These returns should be certified by a CPA.
• Proof of ownership for any assets that you used to obtain your funds. This could include property deeds, stock certificates, or other documentation.
• Letters from third parties who can verify the source of your funds. This could include letters from your employer, business partners, or financial advisors.

The specific documents that you need to provide will vary depending on the source of your funds. For example, if you obtained your funds from the sale of a business, you will need to provide documentation of the sale, such as the purchase agreement and closing documents.

It is important to note that the USCIS may request additional documentation. If you are unsure of what documents you need to provide, you should consult with an immigration attorney.

Here are some additional tips for documenting your source of funds for an EB-5 Immigrant Investor petition:

• Be as detailed as possible. The more information you provide, the easier it will be for the USCIS to verify your source of funds.
• Get everything certified. Having your documents certified by the bank or a CPA will add credibility to your petition.
• Get letters of support from third parties. Letters from people who can verify the source of your funds will be very helpful.

How Can Citizens of Certain Countries who Experience 
(China, Vietnam etc.) an EB-5 Visa Retrogression Avoid the backlog?

The EB-5 Reform and Integrity Act created new EB-5 immigrant visa set-asides for qualified immigrant investors. Each fiscal year, a certain percentage of EB-5 immigrant visas are available to qualified immigrants who invest in specific areas. These investments are able to avoid the country’s EB-5 Visa Retrogression.

Any of these set-aside visas that go unused are held in the same set-aside category for one more fiscal year. After the second fiscal year, any remaining unused immigrants visas in these set-aside categories are released to the unreserved EB-5 immigrant visa numbers during the third fiscal year.

How Can an EB5 Visa Lawyer Help?

While there is no guarantee that there will be a successful outcome with every EB-5 visa, hiring an immigration attorney with knowledge of investment requirements and immigration law can guarantee an EB-5 immigrant investor will be following the guidelines set forth by the USCIS. When looking to hire an immigration lawyer, it is important to look at track records of success with the EB-5 process. There are regional centers that have proven success with both the initial stage (Form I-526 or I-526E) and with removing the conditions placed on the green cards (Form I-829).