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The Immigration Act of 1990 established both the EB-5 visa and the current immigrant classification preference system. The current system places limits on how many and what types of immigrants can receive green cards each year. The current law allows for the issuance of up to 140,000 employment-based immigrants for each fiscal year (October 1 to September 30). INA § 201(d)(1)(A). There are five employment-based categories; among these the EB-5 category has the least number of visas allocated.

EB-3 stands for the third preference category of employment-based U.S. permanent resident status (a.k.a. “green cards”). There are five employment categories (EB-1 to EB-5) and four family based categories.

A pivotal aspect of the EB-5 investment is to prove that the funds invested come from legitimate earnings. For some investors, like Iranians, there is an extra hurdle, for transferring the funds from Iran to the U.S. In fact, most Iranian investments are encumbered and, therefore, necessitate a diligent compliance with U.S. law.

Foreign entrepreneurs are still waiting for the United States Senate Finance Committee to evaluate the proposed Startup Visa Act of 2015 (or EB-6 Visa) that will allow foreign entrepreneurs to obtain permanent residency in the U.S. by investing and raising capital from a qualified U.S. investor. At present, there is no employment-based immigrant visa available for foreign entrepreneurs. Unfortunately, the Act is currently stuck at the committee level, and, thus, the EB-6 Visa has become somewhat of a myth in the immigration law community. 

Many Chinese investors are interested in the EB-5 visa program.   

Regional Centers are institutions that allow immigrant-investors to invest through a fund that is used to sponsor an EB-5 project. In contrast, a direct investment requires the immigrant-investor to directly invest in his or her own business In both cases, it is the immigrant-investor’s responsibility to ensure that investment is put towards a sound business or project.

Deciding between those two types of EB-5 investments can be confusing. The following questions and answers provide the immigrant-investor with initial guidance:

The pivotal aspect of the EB5 application process is for the investor to demonstrate the lawful source of funds.  The EB5 program requires the investor to prove that the funds invested in the project have been earned lawfully. This requirement is satisfied when sufficiently detailed documents are provided. 

Structure and Terms of an EB-5  Loan Agreement

EB-5 stakeholders have been waiting with baited breath for what lies ahead for the EB-5 Regional Center Visa Program after it was set to terminate on December 11, 2015. After actively discussing the EB5 visa program for the last six months, Congress, surprisingly, passed an Omnibus bill on December 15, 2015 to extend the program to September 30, 2016 without making any significant changes to the program.

One of the main requirements of the EB-5 Visa Investor Program is that an investor’s capital should be invested in an enterprise wherein the capital is “at risk.”  As per program regulations, an investor has to present evidence that his capital is, or is in the process of being, placed “at risk,” not that he or she is planning to do it at some point in the future.  Prospective plans to place capital at risk will not be sufficient.  In addition, the evidence of the invested funds has to demonstrate that the whole amount of the capital is at risk.