Complete Guide to EB-5 Immigrant Investor Program
Key Takeaways:
Eligibility Requirements – Applicant is required to invest a minimum of $800,000. The applicant will also need to engage an existing or Create a New Commercial Enterprise (NCE) which creates 10 permanent new full-time jobs.
Application – The EB-5 Visa application involves choosing, Funding and Investing in a project, Filing of Form I-526 or I-526E, Filing for Green Card with Form I-485 and submitting Form I-829 for removal of conditions on Green Card.
Processing Duration – EB-5 processing time involves first the approval timeline for petition I-526/I-526E, then Form I-485 or DS-260, Conditional Green Card, and I-829 petition for US EB-5 unconditional Green Card.
Approval rate & availability – The EB-5 Visa application (I-526) approval rate is 60% to 80%. 10,000 EB-5 visas are available each year with a per country limit of about 700 visas per year.
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What is the EB-5 Immigrant Investor Program?
The EB-5 investor program permits foreign investors, their spouses, and dependents (unmarried children below 21 years of age) to secure a green card.
The investor visa program is known as EB-5 because of its classification under USCIS (United States Citizenship and Immigration Services) employment-based fifth preference visa that they receive.
The EB-5 Investor Program was created by the U.S. Congress in 1990 to stimulate the U.S. economy through foreign capital investment and job creation. It is administered by Immigrant Investor Program Office (IPO). EB-5 visas are set aside for applicants who invest in new commercial enterprises associated with regional centers approved by USCIS.
In March 2022, the latest EB-5 Reauthorization by congress and President Joe Biden is called “The Reform and Integrity Act of 2022”. The EB-5 Program will be valid till September 30, 2027.
What is an EB 5 visa?
Each year, 10,000 EB-5 visas are allocated under the US EB-5 Investor Program to applicants who invest in commercial enterprises approved by the USCIS to promote economic growth.
EB-5 visa is granted to the applicant and their spouse, and dependents (unmarried children below 21 years of age). It allows the investor to immigrate to the USA and leads to a permanent Green Card.
The EB-5 visa has 3 main requirements.
- Capital Investment of $800,000 or more
- Engagement or Creation of new commercial enterprise
- Creation of 10 Full Time Jobs
These 3 main eligibility requirements for an EB-5 visa USA are discussed below.
Eligibility requirements
1. EB-5 Capital Investment
EB-5 visa requires that the applicant invests a minimum capital amount of $800,000 for a Targeted Employment Area (TEA) investment or $1.05 million for non-TEA investment with proof of its legal source; invested in a new commercial enterprise (business).
US Congress has defined “capital” as “cash and all real, personal, or mixed tangible assets owned and controlled by the . . . investor, or held in trust for the benefit of the [investor] and to which the [investor] has unrestricted access.” As of May 14, 2022, gifts and loans to the investor are expressly permitted as capital, provided certain compliance conditions are met. Capital can also include promissory notes, loans may be obtained but must demonstrate that the investor’s own collateral secures the indebtedness.
The definition of capital does not include:
- Assets acquired by unlawful means.
- Capital invested in exchange for a debt arrangement between the immigrant investor and the new commercial enterprise
- Capital investment must be At-Risk and must not have a guaranteed rate of return.
2. Engagement or Creation of new commercial enterprise
The Applicant must invest into a new commercial enterprise (NCE) or an existing business to create 10 full-time employment; the capital invested needs to be at-risk; and the investment for EB-5 visa must be approved by the USCIS.
A Targeted Employment Area (TEA) is a region with high unemployment rates or rural areas. Following are reserved categories for EB-5 Immigrant Visas Set-Aside each year. Rural Area – 20%, High Unemployment Area – 10%, Infrastructure Project – 2%. See more about Immigrant Visa Set-Asides
A new commercial enterprise (NCE) is any for-profit commercial enterprise established after November 29, 1990. According to the US Congress, the term new commercial enterprise means, “ any for-profit organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (whether limited or general), holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business), joint venture, corporation, business trust, limited liability company, or other entity (which may be publicly or privately owned) that receives, or is established to receive, capital investment from immigrant investors.” as defined by 8 USC 1153: Allocation of immigrant visas
Existing Business: The immigrant investor applicant can also invest in a business that existed on or before November 29, 1990, provided a substantial change in the net worth or number of employees results from the investment of capital.
3. Job Creation
The applicant must invest the required amount of capital in a new commercial enterprise that creates at least 10 jobs for qualifying employees.
Investment in a Project Located Within a Regional Center: For example, if you are investing into the creation of a new hotel. Your investment of capital helps the new commercial enterprise (the new hotel) create 10 jobs. When there are 19 more EB-5 investors in the project, then each immigrant’s investments must result in the new hotel’s creation of 200 jobs (10 jobs for each investor’s capital investment) for qualifying employees.
Investment in a Project Located Outside of a Regional Center: For a new commercial enterprise not located within a regional center, the full-time positions must be created directly by the new commercial enterprise to be counted. There are some provisions when investing in a “Troubled Business”. For example, an investment in a troubled business that creates four qualifying jobs and preserves all six pre-investment jobs would pass the job creation requirement.
How to apply for an EB-5 Visa?
EB-5 visa applicants must follow these 5 steps to get an EB5 Green card.
- Choose, Fund and Invest in an EB-5 project: The first step in the EB 5 Visa Process is to find a commercial project to invest in. Applicant must invest a minimum of $800,000 in a Targeted Employment Area (TEA) EB-5 Project or $1.05 Million in a non-TEA project. The applicant can invest directly in a new commercial enterprise (NCE) or through a regional center project that creates 10 full-time jobs.
- File USCIS Form I-526 or I-526E: An applicant investing in a “direct project” must apply for EB-5 visa using Form I-526, also known as “Immigrant Petition by Standalone Investor”. An applicant investing in a “regional center project” must apply for EB-5 visa using Form I-526E, also known as “Immigrant Petition by Regional Center Investor”. The application must include proof of the source of funds.
- File USCIS Form I-485 for an adjustment of Status or Consular Processing with Form DS-260 if filing from outside of the USA: Apply for conditional Green Card using Form I-485, also known as “Application to Register Permanent Residence or Adjust Status”. Form I-526 and Form I-485 may be submitted concurrently if the applicant is filing these while in the US on a non-immigrant visa. Applicants filing from outside of US are required to go through Consular Processing with Form DS-260, also known as “Application for Immigrant Visa and Alien Registration”.
- Get Conditional Green Card for 2 years: The Applicant, applicant’s spouse, and minor dependent children get to live, work, and study without restrictions as EB5 permanent residents. At this time, you can move to the US if you filed from outside of the US.
- File and Approval of USCIS Form I-829: The applicant files for the removal of conditions on permanent residence green card. Form I-829 is known as “Petition by Investor to Remove Conditions on Permanent Resident Status”. Upon approval of Form I-829, applicant gets a permanent Green Card without any conditions.
Processing Timeline
These are the 5 stages in the processing of an EB-5 visa to get a permanent Green Card.
- Funding and Investing in an EB-5 project (2-3 months)
- Filing Form I-526 or I-526E (6 to 24 months)
- Adjustment of Status in the US with Form I-485 OR Consular processing with Form DS-260 (6-12 months)
- Conditional Green Card (2 Years)
- Approval of Form I-829 (22 to 48.5 months)
Benefits
- Green Card issued to the investor and their spouse and unmarried children under 21.
- Settle anywhere in the US.
- Faster timeline to permanent residency Green Card
- Eligible to work anywhere in the US
- Access to schools and colleges in the US at possibly a lower in-state tuition cost.
- Visa-free international travel to and from the United States, there are however some limits on visa-on-arrival access.
- About 1% return on investment
FAQ
Yes, You can.
In March 2022, the Reform and Integrity Act of 2022 (RIA) authorized concurrent filing of I-526 and I-485 petitions. You must be present in the USA with a valid non-immigrant status to be eligible for concurrent filing.
Yes, as long as you have a valid nonimmigrant US visa, you can leave and reenter the country after you have applied for your I-526.