The EB-5 visa is a three-step self-petitioning process consisting of Immigrant Petition by Alien Entrepreneur (I-526), Conditional Permanent Residence by Adjustment of Status (I-485) for aliens inside the US/Consular Processing for alien’s outside the US, and Removal of Conditional Residency (I-829).
Filing for Immigrant Petition (I-526)
Investors should first file Form I-526, “Immigrant Petition by Alien Entrepreneur,” accompanied by supporting documentation and the $3,675 filing fee with USCIS. Subsequent to the approval of form I-526, the intending immigrant needs to adjust status through an I-485 if he or she is in the U.S., or apply for an immigrant visa through consular processing if he or she is outside of the U.S. Unlike other immigrant categories, EB-5 investors may not concurrently file form I-485 with their I-526. The required form I-526 documentation must show that the immigrant investor has invested or is investing the required lawfully-gained capital in a company within the U.S., and that the investment will create full-time jobs for at least 10 U.S. workers.
The filing fee for Form I-526 is $3,675. Current processing time for I-526 is 26 to 50 months. Eligibility for each avenue of investment varies; please see below for specific information.
General Evidence Includes:
- Evidence of the existence of the enterprise (such tax returns from the last three years)
- Evidence of lawful capital:
- Corporate, partnership and/or personal tax returns filed within the past five years;
- Foreign business registration records or evidence identifying other sources of capital;
- Other proof of the investor's income during previous years;
- Certified copies of any judgments or evidence of all pending actions involving monetary judgments within the past 15 years;
- Sales contracts if the source of funds is from the sale of a house or business;
- Bank statements, evidence of property transferred from abroad, evidence of purchased assets, stock certificates given for investments, or loan or mortgage agreements.
- Evidence of the required investment
- Evidence of the investor's day-to-day operation of the enterprise through either management or policy (does not apply to investors in a Regional Center Program)
- Title and description of the investor's job duties
- If the enterprise is a partnership, evidence proving the investor-partner's management or policy-making activities.
- Evidence showing the creation of at least 10 jobs for U.S. workers or a reasonable business plan to show that it will create 10 jobs for U.S. workers
- If investors have hired employees, I-9s forms and tax records; or
- If investors do not currently hire employees, a business plan demonstrating that 10 U.S. workers will be hired within the next two years
- If investors are in a category requiring a $800,000 investment:
- Evidence demonstrating that 10 jobs have been or will be created in the targeted employment area by a reasonable business plan; and
- Statistical proof that the targeted employment area has high unemployment and a state agency's letter demonstrating that the area is classified as a "high unemployment" area.
An Overview of the EB-5 Application Process: Adjustment of Status & Consular Processing
Filing for Adjustment of Status/Consular Processing
Once an investor has received I-526 approval, he or she can apply for Conditional Permanent Residence by either going through consular processing or filing Form I-485.
If You Are Living Outside the United States
You can become a permanent resident through consular processing if you live outside the United States. Consular processing is when USCIS works with the Department of State to issue a visa on an approved Form I-526, Immigrant Petition by Alien Entrepreneur Petition and when a visa is available. EB-5 investor visas have always been immediately available for nationasl of Central and South America, Europe, Africa, Arabia, Middle East, Oceania and most of Asica. However, due to increased demand in the EB-5 program, there is retrogression for visa numbers for nationals of China and Vietnam. Consular Processing time is between six months to one year, depending on the office. Consular processing involves a visa interview, biometrics, collection of necessary documents, and a medical exam by a Department of State Panel Physician. Immediate family members (Spouses & Children under age 21) of EB-5 immigrant investors are eligible to undergo consular processing at the same time as the principle immigrant.
If You Are Living in the United States
You can become a conditional permanent resident through adjustment of status if you live inside the United States. Once Form I-526 is approved and a visa number is available, you can apply for conditional permanent residence using Form I-485, Application to Register Permanent Residence or Adjust Status. Adjustment of status requires an individual to file an application from within the United States with USCIS. Spouses & children under age 21 may also apply to adjust status concurrently with the EB-5 investor if they are already in the United States.
Processing time is usually anywhere from six months to one year. Upon approval of the Form I-485 or admission on an EB-5 immigrant visa, the investor and his/her derivative family members are granted two-years of “conditional” permanent resident status. Children must be unmarried and under the age of 21 to be considered derivatives at the time the I-526 is filed.
Often times, there is confusion as to when the two year period starts during which the investor must begin to uphold the job requirement. According to USCIS memo “AF M Update AD 09-04,” the two year job requirement commences six months after adjudication of Form I-526. Moreover, according to the USCIS policy, the investor's company must create and maintain 10 full time jobs within 30 months (2.5 years) after the approval of I-526.
Changing your EB-5 Business Plan
A petitioner cannot materially change the business plan of the enterprise after Form I-526 is submitted because it serves as the basis for approval of Form I-829, even if the petitioner has met all other necessary requirements. However, if an alien wishes to change the business plan from the initial one outlined in Form I-526, he or she may file a new Form I-526 with a new business plan along with all other necessary requirements. Once a petitioner files a new Form I-526, the following can occur:
- If the new Form I-526 is filed before the alien adjusts status or is issued an immigrant visa, then the new petition will serve as the basis for I-829 approval.
- If the new Form I-526 is filed after the alien adjusts status or is issued an immigrant visa but before the due date of the I-829 petition, then the alien may file Form I-407, Abondonment of Lawful Permanent Status, along with Form I-485. USCIS will then terminate the alien’s previous conditional permanent residency. If the new Form I-485 is approved, then the alien will be granted a new two year period of Conditional Permanent Residency CPR. The new I-526 petition will then serve as the basis for I-829 approval.
- If the new Form I-526 is filed after the alien adjusts status or if the alien is issued an immigrant visa on or after the due date of the I-829 petition and the new I-526 is approved, the alien may request withdrawal of the initial I-829 petition and file a new AOS application. If the new AOS is approved, the alien will be granted a new two year period of CPR. The new I-526 petition will serve as the basis for I-829 approval. If the new I-526 petition is denied, then the I-829 will be adjudicated based on the initial I-526.
- USCIS acknowledges that investment in a targeted employment area (TEA) — either rural or high unemployment area – may occur before filing the I-526. In such a case, the investor has the burden of proving that the area of investment qualified as a TEA at the time the investment was made.
Furthermore, by the time the investor files an I-829, the area of investment may cease to qualify as a TEA. As increased job creation is the main goal of the EB-5 program, changes in population size and unemployment are acceptable and do not affect the removal of conditions.
For legal assistance with the complex EB-5 Application Process,
please contact EB-5 Global Business Ventures.
Fill out the form to the right, email us, or call us at 617-536-0584.