Congress, in an effort to promote economic development and investment in the United States, created the EB-5 Immigrant Investor Program.[i]
EB-5 stands for the fifth preference in the Employment-Based visa categories.
The program allows entrepreneurs, their spouses, and their children to obtain a green card if they can fulfill certain requirements.
It is important to remember that children, in the immigration context, refers to anyone who is unmarried and under the age of 21 years old.[ii]
Such requirements include:
- Making or planning to make an investment, which the amount differs on the type of investment you are making, in a commercial business in the United States; and
- Intending to either create new jobs, or preserving at least 10 permanent qualified U.S. workers, not including you, your spouse, or your children, who work full-time, which is at least 35 hours per week, for the enterprise[iii]
A qualified worker includes either a U.S. citizen, permanent resident, or anyone else who has been directly and explicitly authorized to work within the U.S. [iv]
Under the program, there is a maximum ceiling of 10,000 visas which are available to qualified entrepreneurs for each fiscal year.[v]
The underlying point, which inspired the creation of this visa is to aid the U.S. economy.
Therefore, it is important that you be able to show that your investment will promote job creation.
Since this can be complex, and the amount that you are required to invest is so high, you should consult an immigration attorney if you are considering getting a green card through investment.
Editor’s Note: The EB-5 is currently undergoing some turbulence due to litigation and discussion over the minimum investment amounts and the expiration of the EB-5 regional center program. Please consult with an attorney immediately to get the current facts about the EB-5 program, as this article may not be up to date due to the inherently volatile nature of the program over the past few months. Thank you!
How Do I Get an EB-5 Investment-Based Green Card?
In order to obtain your green card, there is a five step process before it will be issued to you. Bear in mind that the five steps listed as follows simplify the process a great deal.
For EB-5 Visas it is highly recommended that you obtain legal counsel before applying. The process is as follows:
- You have to either be actively in the process of investing, or have already invested, either $500,000 or $1,000,000 into an eligible business. Further, you must be willing to hire or continue to employ the requisite number of American citizens. The difference between the two different investments options will be discussed below.
- Then, you will have to file a Form I-526 with USCIS, which is an Immigrant Petition by Alien Entrepreneur, provide the necessary documents, and pay the attached filing fee.
- Once your application has been submitted, you will have to wait for your visa number to become current, if there is a waitlist.
- If you are currently residing outside of the United States, you will have to file a DS-230 or DS-260, which is an Applicant for Immigrant Visa and Alien Registration with the Department of State. Instead, if you are already residing in the United States, you will have to file a Form I-485 Application to Register Permanent Residence or Adjust Status with USCIS. This will allow you to adjust your status, so that you are then considered as a conditional permanent resident.
- Once your I-485 has been approved, or have gained entry into the U.S. under the EB-5 visa category, you and your family members will be considered as conditional permanent residents, which will last for two-years.[vi]
What Do I Submit With My Application?
When you submit your I-526 Petition for an Alien Entrepreneur, you will also have to submit evidence along with the application.
First, you will have to show that you have actually invested in a new commercial enterprise, which also has to be for profit.
USCIS defines a new commercial enterprise as a business which has:
- Been created after November 29, 1990, or if it was established either on or before that date, it has to have been reorganized in such a way that it subsequently produces a new business; or
- As a result of your investment, increased the net worth, or number of employees of the commercial enterprise by at least 40 percent. [vii]
This can include such ventures as a joint venture, a corporation, a sole proprietorship, a partnership, a trust, or a holding company. [viii]
Second, you will have to prove that you are actively and directly managing the new business, either in policy or through your involvement through the day-to-day operations of the enterprise.
Third, you are also required to show proof of your investment, or your plans to invest.
This further requires that the funds you used to provide your investment in the first place were obtained through legal means.
Such can be proved by the inclusion of foreign registration records, identifiers of the source of money, or personal or business tax returns from any country from the last five years. [ix]
Fourth, you need to be able to show that you either created, or preserved, at least 10 full-time employee positions for qualified workers.
Remember, a qualified worker includes either a U.S. citizen, a permanent resident, or someone who has been authorized for employment in the U.S.
It is important to remember that this cannot include yourself, your spouse, your children, any nonimmigrant or temporary workers, or anyone who does not have explicit authorization to work in the U.S.
In order to show this, you will be required to provide a detailed business plan.
The plan must include evidence that your need for those 10 full-time eligible employees will not expire.
Therefore, you should include the dates which will indicate when, approximately, you plan to hire such employees.
Those dates must be within the next 2 years. [x]
Instead, if you plan to preserve jobs, the evidence you should submit should speak to the fact that the number of jobs will not sink below the pre-investment levels for at least two years.
In order to show this, you can provide tax records, employee forms such as an I-9, and a detailed business plan. [xi]
As mentioned above, there are two different amounts which you can choose from, either $500,000 or $1,000,000 for which you can use to fulfill the investment requirement.
If you choose to invest $500,000, it must be in a commercial enterprise which currently exists in an economically depressed area. [xii]
How Much Do I Have to Invest?
Typically, you will have to invest at least $1,000,000 in order to qualify for the EB-5 visa.
But, there is an exception if your investment will go towards a Targeted Employment Area (TEA).[xiii]
The TEA either has to be experiencing high unemployment in that sector which equals at least 150% of the U.S. average, or the commercial enterprise has to be in a rural area.
Rural area refers to an area which is (1) not in a city, or (2) is close to a city but has a population of 20,000.[xiv]
What is the Immigrant Investor Pilot Program?
Another option for you, if you choose to obtain your green card through an EB-5 investment, is the Immigrant Investor Pilot Program, which allows foreign individuals to fulfill the investor requirement by investing in an EB-5 regional center.
The Regional Centers allow several foreign investors to invest in the same project, as long as it has been approved by USCIS.[xv]
This tends to be the most popular option for investors.
A Regional Center is defined by USCIS as a business enterprise that unites several foreign investors, and allows them to pool their funds to still fulfill the requisite investment amount, but it is not specific to a single geographic area.
If you choose to obtain your green card through the use of a Regional Center, you will have to fulfill the same requirements as a typical EB-5 investor.
But, it is important to note that there is a less strict job obligation. By that, it refers to how you can either create direct jobs, or indirect jobs. [xvi]
Direct jobs refer to the specific and explicit jobs which eligible employees can work for, and are within the business that you have invested in yourself.
Instead, indirect jobs refer to the jobs which have been collaterally created as a consequence of your investment, but it will instead be in a business that is linked to a regional center.
As you remember, you typically have to create or preserve 10 jobs, but the requisite number of indirect jobs has to instead deal with the business plan, and economic investigation that is conducted by USCIS and do not conform to the same standards. [xvii]
If you choose to use this method, your approved Regional Center must:
- Concentrate on a specific geographic area of the U.S.
- Aid in economic growth through export sales, job creation, increased U.S. investment, or improve the productivity levels in that specific area
- Be able to explicitly and specifically demonstrate not only that jobs will be created, but how they will be created
- Invest the requisite amount of funds to the Regional Center. [xviii]
How Do I Remove the Conditions on my Permanent Residency?
As an EB-5 investor, your first green card will be conditional and will be valid for a period of two years.
If you would like to remove the conditions from your permanent residency, you will have to file a Form I-829, which is a Petition by Entrepreneur to Remove Conditions.
It is imperative that you file this document at least 90 days prior to the two-year mark of when you were originally granted the EB-5 conditional residence status.
When conditions on your permanent residency are removed, you and your family can enjoy permanent residence status, without any limitations, and can reside and work in the U.S. without a designated time limit.[xix]
When you submit your application, you will be required to provide additional supporting documents to demonstrate you made a qualifying investment.
You must prove that you have actually invested in a new commercial enterprise.
You can prove that there is a new commercial enterprise through either tax returns that you have filed in the previous two years, or through organizational documents that can speak to such.
Further, you will need to show that you are either actively investing, or already have invested the required amount in the business, and that you have sustained your investment for the duration of that two-year period.
This can be shown through such evidence as invoices, receipts, contracts, licenses, financial statements, or bank statements. [xx]
Second, if you created, or plan to soon create at least 10 full-time jobs for eligible employees, you will have to provide evidence of such.
This can be shown through employee tax forms, payroll documents, or your tax documents.
Instead, if you preserved jobs, you can use the same documents as listed before, but you will have to instead prove that you have kept those same employees at the same rates as they existed prior to your investment. [xxi]
Because of the heavy documentary burden, many EB-5 investors hire a number of financial and legal counselors and choose to invest through a USCIS designated Regional Center
[i] See 8 C.F.R 204.6(a).
[ii] See id.
[iii] See 8 U.S.C. § 1153 (b)(5)(A)(ii).
[iv] See id.
[v] INA § 203(b)(5)
[vi] See 8 U.S.C. § 1153(b)(5).
[vii] 8 C.F.R. § 204.6(e).
[viii] 8 C.F.R. § 204.6(j).
[ix] See id.
[x] See id.
[xi] See id.
[xii] 8 C.F.R. § 204.6(f).
[xiii] See id.
[xiv] 8 C.F.R. § 204.6(e).
[xv] 8 C.F.R. § 204.6(j).
[xvi] See id.
[xvii] See id.
[xviii] See id.
[xix] 8 C.F.R. 216.6
[xx] See id.
[xxi] See id.
