The EB-5 program was created in 1990 by the United States Citizenship and Immigration Services to promote economic growth within the U.S. through commercial enterprise for investors to attain unconditional permanent residency.
Immigrant investors and their family members, including spouses and unmarried children under 21, have the ability to obtain conditional green card status and then United States permanent residency by completing the EB-5 petitioning process. The following four steps are crucial for investors hoping to attain an EB-5 visa.
Step 1: Selection of a Project for EB-5
The initial conditional residency step in the EB-5 application process starts with choosing a commercial enterprise project that suits the investor’s financial goals and meets all EB-5 program requirements either through regional centers or direct investments.
When researching EB-5 investments, foreign investors can look at the following three factors:
- The likelihood that the commercial enterprise will satisfy the EB 5 program requirements, ensuring the successful gain of permanent residency status
- That the invested capital will receive a timely return
- If there will be a return on the capital investment at the end of the project
The Department of Homeland Security now manages all regional centers and EB-5 investment funds. Investors need to perform due diligence and use an investment advisor, identify what incentives will push the EB-5 project to complete its obligation, and ensure enough collateral is available to provide a financial buffer if the business plan is unable to achieve the anticipated results.
What Amount Will Need to Be Invested?
If the immigrant investor is interested in a targeted employment area (TEA)—that is a rural or high unemployment area—an investment of $800,000 is required of EB-5 visa applicants seeking to become unconditional lawful permanent residents. However, if the commercial enterprise job creation occurs elsewhere, the minimum investment amount becomes $1,050,000.
Choosing Investments That Will Qualify For Faster EB-5 Process
To gain permanent resident status quickly, there are a few ways to speed up the proceeding of form I-526 or I-526E. The method that is most common involves the investment towards a project which will create jobs located in a rural area. These projects allow investors quicker processing of their EB-5 visa application, approximately 9 to 12 months on average from the priority date.
Another way to expedite the EB-5 immigrant visa application process by the United States Citizenship and Immigration Service is if the EB-5 investment is considered to be of “National Interest”. These petitions are often processed even quicker, in about three to six months on average, which is the quickest possible processing route for an EB-5 visa application to gain conditional permanent resident status.
Reserved Visa Qualification Investments
Over the last decade, there has been a large demand for the EB-5 visa to lead to permanent resident status, which has created significant delays due to the limited number of available visas. The United States government has an allocation of 10,000 EB-5 visas annually, and a per-country maximum limit of 7%.
A set-aside provision has been introduced with recent regulations that reserve 32% of EB-5 visas. Ultimately this allows EB-5 visa investors to skip the long waiting period.
With the new regulations of visa set-asides, foreign investors can now invest in a project located rurally, possibly receiving approval in under a year and attaining a prompt visa.
Criteria for Job Creation
The job creation requirements for EB-5 investors are the most critical aspect of the EB-5 petition for both a regional center and direct investment. For an investor to obtain permanent residency through the EB-5 process, investments must end in the creation of ten full-time jobs at a minimum.
Job creation will generally be looked at from an economic point of view and is based on factors such as anticipated income and capital expenditures. If the new commercial enterprise spends the funding it was intended to and stays under budget, the creation of jobs is typically considered to be fulfilled.
There is a higher risk if job creation is based on expected revenues. In this case, it is important to evaluate the effectiveness of the business plan and be confident that there is a sufficient job cushion to mitigate any potential risks in job creation.
An EB-5 investment through a regional center has the advantage of being able to include induced and indirect job creation in their calculations. Direct investments, on the other hand, are only allowed to have one EB-5 investor and can only calculate direct jobs created by the new commercial enterprise that is using capital investment. Induced and indirect jobs do not count.
Return on Foreign Investment Capital
For EB-5 investors, a top priority is to ensure a return on their invested capital. Investment strength evaluation involves looking at the developer equity and capital stack, which will reflect the commitment level of stakeholders and project developers.
A significant change was brought about through the Reform and Integrity Act regulations, stating the time that the capital of an EB-5 investor is required to stay “at risk”. With the new regulations, investors are allowed to begin receiving any capital back two years after the initial capital investment is made. The risk investors have is reduced due to the shorter time frame because they are allowed to quickly regain their capital.
One important point to make a note of is that while this new rule gives a chance for a quicker return for investors, the majority of projects do not expect repayment to occur in such a short period of time. For example, construction projects often take upwards of three years in the construction phase and oftentimes require more time prior to beginning. After the completion of the construction, another two to three years is needed for the project to be stabilized and generate sufficient revenue for a bank loan qualification, which is then used for the repayment of the EB-5 investors.
Step 2: Filing Form I-526E
Investors need to file Form I-526E along with proof of the filing from Regional Centers of Form I-956F. You should understand that if a project is approved, this is not a guarantee of its capability to meet the required job creation, its quality, or the likelihood of providing the investor any sort of investment return. Approval of the project simply means there were not any apparent issues with the submission of the project.
Once the investor has made their investment either through direct investment or a regional center, the investor's immigration attorney typically files form I-526E with USCIS. Proof must be shown on the immigrant petition that the applicant is currently beginning the process of investing or has already invested, as well as the needed capital, in addition to the investor meeting the requirements of the EB-5 program.
It is important to work with an immigration attorney who has experience in filing EB-5 and understands the intricate rules and precedents involved throughout the lawful permanent resident status process through the EB-5 category.
Filing I-526 Must Meet Certain Requirements
- EB-5 investors need to prove that any invested capital has been lawfully acquired and must show the lawful path and source of funds.
- The USCIS must find the plan of the business to be credible, and the plan must meet the requirements set out in the case Matter of HO, which will be assessed by the investor’s attorney.
- The investment capital must stay “at risk” for a minimum of two years once it is made, with a loss risk or chance of gain and no guarantee of capital return.
- To qualify for the $800,000 minimum investment amount, the commercial enterprise must be in a targeted employment area, including high-unemployment and rural areas.
Guarantee of Denial Refund
If the USCIS denies a petition of I-526E, there is often concern on behalf of the investor regarding the return of any invested capital. Carefully reviewing the documents that are laid out by the new commercial enterprise in regard to any possible repayment to foreign investors in these cases is crucial.
If there is an offer of a “denial refund”, it is critical to establish the guarantor’s identity and evaluate the commitment ability for repayment. If agreed upon, an escrow account must be used by the project developer to keep the funds in.
Processing Times For I-526
The following are the current estimated processing times for the EB-5 visa petitions:
- Standard processing of I-526 petition: four to five years
- Expedited processing of I-526 petition: three to six months
- Premium processing of I-526: under one year
Step 3: Two-Year Conditional Permanent Residence Period
Upon approval of the I-526 petition, a foreign investor can attain conditional permanent residency and adjust status in two ways:
- Filing I-485 for adjustment of status if the investor is currently living in the United States
- Filing form DS-260 with a United States Embassy or a United States Consulate for investors currently living in their home country
It is important to note that lawful status in the U.S. is required to file for Adjustment of
Status. However, the investor can apply for employment authorization and a travel permit (a.k.a. “Advance Parole’) together with your Adjustment of Status Application.
After approval of one of these applications, the foreign investor and their family must fulfill a two-year conditional residence period within the U.S., and they can work and live in any location within the United States.
During this two-year conditional residence period, the foreign investor is required to complete the permanent resident requirements of physical presence and may not live outside of the United States past one year's time. Speak with EB-5 Global Ventures for any clarification.
Step 4: Removing Conditional Residency Conditions
The last step of the EB-5 visa process is becoming a permanent resident without conditions. This occurs once Form I-829, Petition by Investor to Remove Conditions is approved.
The application process is used to prove that the investor has met the EB-5 visa program requirements set in place by the United States Citizenship and Immigration Service.
Required Documents for I-829:
- Conditional Permanent Resident Card
- Federal tax returns that provide proof of the creation of a commercial enterprise
- Proof that the investment has been maintained for two years after the creation of the commercial enterprise
- Documentation through tax records and payroll showing a minimum of 10 full-time positions were created
- Documentation of Biometrics including photograph, fingerprints, and signature.
- Applicant’s history of criminal documents (if applicable)
I-829 Petition Filing and Investment Process Times
The USCIS must receive Form I-829 petition 90 days before the anniversary date the foreign investor first gained their conditional residency. The investor risks not gaining permanent residence if the immigrant petition is not filed on time.
The EB-5 visa investor’s immigration attorney typically files the I-829 petition. There is an $85 biometrics fee and a filing fee of $3,750 due to the US Department of Homeland Security. After the I-829 petition is filed, USCIS may request an interview. USCIS’ average processing time for Form I-829 is about 37.2 months.
Once approved, the EB-5 visa investor and spouse, as well as their dependent family members, will be given their 10-year green cards.
Five years after the date that the original conditional residency was issued, the investor and their family will be given the option to change their immigration status and become United States citizens..
We Can Help
An immigration attorney at EB-5 Global Adventures has the experience needed to help you through the EB-5 process and become a permanent green card holder. Contact EB5 Visa Lawyer today for a consultation.