Frequently Asked Questions
About EB-5
All questions are welcome, valid and deserve our best effort to be answered.
Clear your doubts now. Choose EB5 Ready.
EB-5 PROGRAM BACKGROUND
An EB-5 rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000, or more according to the decennial census.
Actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with an EB-5 regional center.
Concurrent filing is a term given to cases that can file an EB-5 immigrant petition and adjustment of status at the same time, instead of having to wait in ones own country and have a consular interview after the approval before being permitted to file for an adjustment of status. It was signed into law by President Biden in early 2022 with the EB-5 Reform and Integrity Act, the official reauthorization and reform of the EB-5 Regional Center Program.
It is designed for EB-5 investors or foreign nationals that are the primary applicant and are already physically located inside the United States on another visa.
This means that a petitioner wouldn’t have to wait for their EB-5 petition to be approved, and when their status is adjusted, they can apply for travel rights and work authorization. This filing secures a work permit and advance parole within 3-9 months, which means one can live in the U.S. immediately after investing in an investor visa, work, and travel.
Yes, provided that any applicable gift taxes are paid, and the EB-5 investor can prove that the donor’s funds were lawfully sourced. It must be demonstrated that the gift is an actual arm’s- length transaction, and that it is a not a mere ruse nor that the gifted funds will be given back after permanent resident status is granted.
USCIS’ current policy allows for the investor’s money to be held in escrow at the Form I-526E petition stage until the investor has obtained conditional lawful permanent resident status. Investor’s money is deposited directly into escrow and his held there until the proper conditions for release are met pursuant to the project’s offering documents that have been executed by the investor.
At the time of Return of Capital, the investor may choose to repatriate the money to a Non –U.S. account or keep it in the U.S. via a valid U.S. account in their name.
The I-924 is a form used to seek approval for designation of a regional center, and for preliminary approval of a business plan. This form is filed by the regional center operator.
Regional Centers seeking designation must make sure to present a solid application to USCIS to avoid delays. Regional Centers must understand the difference—and importance—between the types of projects that can be submitted with the I-924 application. Specifically, what is the different between a “hypothetical,” “exemplar,” and “actual” project in the context of an I-924 application? The distinction can be somewhat hazy. Knowing what these terms mean can make a significant impact on the amount and types of documents needed in the Regional Center application and the adjudication standard applied to it.
A hypothetical project is a project included in an I-924 application that is not “shovel ready.” A hypothetical project is just that – a project that may or may not come to fruition. USCIS will grant Regional Center designation when “general predictions” are made showing the job creation that will result from the hypothetical project’s business plan. Hypothetical projects contain the minimum of required information. This option is used by Regional Centers when they know they will develop a certain type of project in a certain geographic area in the future (for example, construction and operation of a hotel in Manhattan), but not all the plans are finalized yet. Perhaps the hotel flag may change, or the project may change neighborhoods in Manhattan. With this option, the Regional Center must submit a business plan and economic report to support the project, but many of the other ancillary documents, such as the offering, detailed feasibility studies, and permits, would not be required.
A second type of application is one based on an actual project, or a “shovel ready” project. An “actual” application includes, among other things, a specific business plan and economic analysis, the actual capital-investment structures (the offering and ancillary securities and corporate documents), evidence of the other funding committed to the capital stack, feasibility studies, permits, licenses, and other documents to support the shovel-ready nature of the project. In other words, an “actual” project means that this project is moving forward once the Regional Center can accept EB-5 funds and investors can file I-526E petitions. The actual project, however, is not being “pre-approved” by USCIS, and therefore, small changes can be made to the business plan, the economic report, and the offering documents as needed before investors file I-526E petitions.
An “exemplar” I-526E petition is a “sample” I-526E petition for an unnamed investor included with the I-924 application. Of all 3 types of projects discussed here, this type of project requires the most documentation. With an “exemplar” I-526E petition, the Regional Center prepares a full I-526E petition, including all project related documents, for a sample investor. USCIS then “pre-approves” the project materials. Theoretically, when the I-924 application is approved and the investors can file I-526E petitions, the only documentation that requires review by USCIS is the investor’s source of funds. While this doesn’t always happen, and USCIS sometimes does re-review the project materials, it gives the Regional Center a distinct marketing advantage to tell investors their project has been “pre-approved” by USCIS. Changes to any documents destroy the exemplar status, unfortunately, so the documents need to be static.
The takeaway is to select an option that fits the development timeline of the project. A project that is not fully developed should be filed as a hypothetical project. A project that may need a change in location, size, or scope should be filed as a hypothetical project. Projects further along the development timeline, and that have required permit approvals and feasibility studies, should be filed as actual projects. And finally, if the Regional Center would like a marketing advantage on an actual project, it should be filed as an “exemplar” I-526E petition project.
An investor must apply to the USCIS for EB-5 Visa qualification through the submission of several required elements including: USCIS forms, extensive source and trail of funds, business plans and economic (job creation) predictions, financial information, and other supporting evidence.
A potential investor is required to file a form I-526E for Alien Entrepreneur in conjunction with the documents supporting the business in which the investment is being made, which satisfy the EB-5 Investor Visa program requirements. Upon approval of this application, the investor and immediate family (spouse and single children under 21 years of age) may apply for an Immigrant Visa at the US Consulate, or if the investor is already located in the United States, apply for adjustment of status at any regional USCIS office.
Sometimes. The U.S. allows dual citizenship, but your original country of origin may not allow it.
There are no requirements with respect to prior business experience or education.
No, but it is strongly recommended that a non-English speaking investor should hire the services of a translator to ensure that the investor fully understands the investment terms and the offering materials are reviewed carefully before the investor makes a decision.
Rejection in the past does not disqualify the applicant, unless the reasons are related to immigration fraud or other significant problems. But past visa denials must be reviewed carefully with an experienced EB-5-specialized immigration attorney. It is most important that all criminal, medical, or U.S. immigration history problems be disclosed to legal counsel in advance of application.
A central requirement of the program is that an EB-5 investor’s capital must remain “at-risk” for the duration of the conditional residency period, which is approximately two years after receiving a visa. Therefore, an investor may not be given any guarantee that his or her investment will be returned. This does not mean that the risk needs to be high. It just cannot be inexistent.
- At $800,000 base investment, with associated expenses of about $70-80k over 5 years, it adds about $7 Billion a Year to the US economy
- It creates over 200,000 employment opportunities each year
- Has bi-partisan support in the U.S. Congress, as it has zero negative impact on the US Taxpayer to fund economic development projects.
The most common problem area has been insufficient documentation of an EB-5 investor’s source of funds. Many people try to disclose the least possible information only to have the file returned with a request for further information. It is better to provide too much information rather than too little information. In an era when the Federal Government more closely scrutinizes foreign direct investment, USCIS case examiners require a well-documented source of funds.
In 1990, the EB-5 program originated as a “direct investment” program, but due to its overall complexity and lack of success, the Regional Center program was launched in 1993 to help formalize and popularize the program by permitting investors to pool investments in larger projects.
Regional Centers are organizations with a defined geographic boundary authorized by United States Citizenship and Immigration Services (USCIS), through which EB-5 investor funds are received and managed by a New Commercial Enterprise (NCE). Regional Centers promote economic development and job creation within a specific geographic area.
The EB-5 Program allocates 10,000 visas per year for immigrants and their family whose qualifying investments result in the creation or preservation of at least ten full-time jobs for U.S. workers.
The U.S. Citizen and Immigration Services office (USCIS) is the U.S. government agency that processes all immigration documents. A great amount of immigration information can be found on USCIS’ website at www.uscis.gov, including additional information on the EB-5 program, forms including the I-526E and I829, and much more.
The United States government created the EB-5 Immigrant Investor Program in 1990 in an effort to attract foreign investment and boost economic growth. Eligible foreign nationals can invest either $800,000 or $1,050,000 in a new or existing U.S. business. When investors demonstrate that their investment has created at least ten jobs for U.S. workers, they may receive green cards for themselves and their families.
CONDITIONAL GREEN CARD
To maintain your Lawful Permanent Resident (LPR) or Conditional Residence status (i.e., green card) you have to avoid abandoning your residence in the U.S. You can have a trip out of the U.S. greater than 180 days without abandoning your residence. You can apply for a re-entry permit, which allows you to stay out of the U.S. for up to two years without abandoning your residence.
You can apply for a reentry permit (on form I-131) before you leave the U.S. You can depart before the reentry permit is approved. With such a reentry permit, you can also return to the US at any point until the reentry permit’s expiration date. Reentry permits are issued for two years. At the expiry of these 2 years, you can apply for a new one. The second such reentry permit will be granted for two years, but then onwards all subsequent ones may only be approved for one year at a time.
If outside of the United States for two or more years after being issued a reentry permit, a Returning Resident (SB-1) immigrant visa is necessary. Permanent resident status will be considered abandoned if a green card holder moves to another country and no longer intends to reside in the United States.
Yes, the investor and his/her family can travel back and forth with no issues. An investor should consult with an EB-5-specialized immigration attorney.
Once you receive a green card, there are only two conditions required to keep it for life. First, you must not become removable or inadmissible. The most common way of doing this is to be convicted of a serious crime.
The second requirement is that you not abandon the United States as your permanent residence. As long as you are not planning to make your home somewhere else, then legally you are still a resident of the United States.
By receiving your Green Card through investment (EB-5), you should have a conditional Green Card for two years. You must apply for removal of the condition within 90 days before the two years are up. Once that is approved, you have a regular unconditional Green Card, which must be renewed after ten years.
Short answer: There is a difference between “continuous residence,” which refers to a requirement for naturalization, and maintaining residence in the U.S. for green card purposes:
If you are interested in obtaining U.S. Citizenship as soon as possible and become a naturalized U.S. citizen, then as you receive conditional green card and enter country, you should aim to spend at least 180 days per year in the U.S.
If, on the other hand, you are interested in simply maintaining residency status and your green card, as long as you spend no more than 180 CONSECUTIVE days OUTSIDE of the U.S., you may fulfill this requirement. All decisions relating to maintenance of the green card should be discussed with an immigration attorney.
Rights of Permanent Residents
U.S. permanent resident status grants immigrants many rights and privileges. Green card holders may live and work anywhere in the United States, and they are fully protected under federal, state, and local law. Permanent residents are also free to travel abroad using a valid passport issued by their home country; however, in order to remain permanent residents, they must fulfill the physical presence requirement, which is discussed in the next section. In addition to these rights, permanent residents enjoy numerous other benefits, including access to world-class higher education and excellent health care. They also have the option to obtain U.S. citizenship.
Responsibilities of Permanent Residents
Along with the rights and privileges mentioned above, permanent residents are expected to fulfill certain responsibilities:
Permanent residents are required to pay all applicable state and federal income taxes. They must file income tax returns with the Internal Revenue Service (IRS), paying taxes on their gross worldwide income. Immigrants from countries with which the United States has tax treaties may be able to obtain credit for the payment of their foreign taxes.
Like all male U.S. citizens from age 18 to 25, male green card holders must register with Selective Service. Registration for Selective Service does not, in itself, entail service in the U.S. military, but it does mean that any male permanent residents from age 18 to 25 will be subject to the draft.
In addition to paying taxes and registering with Selective Service, permanent residents are expected to be of good moral character. In order to maintain permanent resident status, an immigrant must fulfill the physical presence requirement, which generally entails physically residing within the United States for six months or more in any given year. If a permanent resident spends more than one year outside of the United States, he or she must obtain a reentry permit or face losing permanent resident status.
If outside of the United States for two or more years after being issued a reentry permit, a Returning Resident (SB-1) immigrant visa is necessary. While outside the United States, permanent residents are still required to file U.S. income tax returns, and failure to do so may jeopardize their status. Permanent resident status will be considered abandoned if a green card holder moves to another country and no longer intends to reside in the United States.
After an investor has become a conditional permanent resident, he or she will have two years to prove that the EB-5 investment has created ten full-time jobs. Within 90 days of this deadline, the investor must file an I-829 petition for removal of conditions of permanent residence.
At the end of this process, investors are not guaranteed a green card, as the I-829 petition approval is based on whether the investment funds have created the requisite number of jobs (latest I-829 approval rates = 96% for FY 2016).
The EB-5 Program requires that the investment be at risk throughout this time period, meaning each investor faces some level of uncertainty. Therefore, if a new enterprise fails before the investor has filed his or her I-829 petition, USCIS may deny the petition because the jobs no longer exist, meaning the investor may lose the investment and will additionally be ineligible for a green card.
The I-829 petition is the final step in the EB-5 Immigrant Investor Program. Investors and their attorneys file this petition with USCIS and provide evidence that the investor has successfully fulfilled all of the program’s requirements, particularly that investor funds resulted in the creation of at least ten jobs. Upon approval of the petition, investors and their family members receive permanent green cards.
The spouse of the investor and any unmarried children under the age of 21 at the time of application. It is possible for adopted children to be included in the family. Upon approval you will receive a form evidencing approval and a travel document. You should also receive a temporary green card in the mail.
In this case, the second parent may take over as the Principal Applicant and application continues. However, if you wish to not proceed with the application at all, then the second parent may refuse to step in as principal applicant, in which case the application itself will be denied by the USCIS.
Follow to join (FTJ) applications are usually pursued when the petitioner either processes for her green card at the U.S. Consulate and qualifying family members that are in the U.S. “follow to join” by filing adjustment of status green card applications or vice Versa. In the context of an EB-5 case, a qualifying family member (spouse or child under 21) can safely follow to join during the 2 years of conditional residency status of the principle.
Family members may interview in different countries. The country of origin or where the family has current ties is the standard interview site. However, a student attending school in the U.S. would not have to return to the country of origin; status can be adjusted in the United States at the district office of the USCIS.
The purpose of the Consular application is to ensure that the investor and family members undergo medical, police, security and immigration history checks before the conditional permanent resident visas are issued. At the interview, the Consular Officer may address these issues and information printed on the I-526E petition, including the nature of the investment. If the investor and family are in the United States, they may apply to adjust their status at the appropriate office of the USCIS.
Yes, exactly the same benefits except that they do not become permanent until the I-829 petition is approved.
An investor who is approved for the EB-5 immigrant visa receives a conditional green card, which means that the investor still has to satisfy the conditions established by the EB-5 Visa Program (job creation, investment sustainment, etc.). After two years the investor files a petition to remove the conditions. Otherwise, the two cards offer the same rights and privileges.
I-526E PETITION RELATED QUESTIONS
The unmarried child, if a part of the I-526E petition, will retain the green card. Once granted, the green card is not rescinded if the person later gets married.
If the I-526E petition has been filed, then the principal applicant’s spouse may also obtain a visa.
However, spouses of children (dependent applicants) are not eligible to join the petition. As per the EB-5 Visa Program regulations, the green card may be given to only children below the age of 21 and unmarried at the time of application filing. However, the spouses of children may be benefited through other processes.
USCIS evaluates an investor’s I-526E petition based on the following five (5) criteria:
1) Investment Amount Meets EB-5 Requirements
An EB-5 investor’s I-526E petition must demonstrate that the minimum required capital was invested in a new qualifying business enterprise. For projects located within a TEA, the minimum investment amount is $800,000. Projects not located in a TEA, however, require a minimum investment of $1,050,000. In order to meet USCIS requirements, the invested capital must also be considered “at risk” and irrevocably committed to the project.
2) Investment Capital Was Lawfully Obtained
The EB-5 investor must also be able to clearly demonstrate on his or her I-526E petition that the invested capital was obtained lawfully. The investor must trace the capital from its source—a salary, investment distribution, sale of property, loan against property, inheritance, margin loan based on marketable securities portfolio, etc.—to the NCE. Funds given to the investor must also be traced back to their source.
3) Capital Was Invested in a New Commercial Enterprise
An EB-5 investor’s I-526E petition must demonstrate that the necessary amount of lawfully obtained capital was invested in a NCE. An NCE is defined as a for-profit entity engaged in ongoing, lawful commercial business activity. The enterprise must have been established after November 29, 1990.
4) New Commercial Enterprise Creates Required Number of Jobs and Business Plan is Compliant
Investing in an NCE is not, by itself, sufficient for EB-5 visa approval. USCIS requires that the Job Creating Entity (JCE) or Entities to which investor capital is provided must create at least ten full-time jobs for each EB-5 investor involved. The business plan underlying the project must also meet USCIS requirements.
For those who make direct investments, these ten positions must be created directly by the JCE and they must be permanent, full time (at least 35 hours per week), and filled by W-2 employees. Positions filled by the investor’s family cannot be counted toward the minimum job creation requirement. The investor’s I-526E petition must demonstrate that at least ten jobs have been or will be created. To demonstrate future job creation, the I- I-526E must include a clear description of the NCE’s hiring plan, including which positions will be created and when they will be filled.
When sponsored by a regional center, an NCE must still create a minimum of ten positions per EB-5 investor, and these must also be full-time, but they can be created either directly or indirectly through investment in a JCE. Indirect jobs are those created through the operations of the JCE. Any indirect jobs counted toward an investor’s minimum job creation requirement must be predicted and described in the investor’s I-526E petition through an economic report.
5) Investor Is Actively Involved in the New Commercial Enterprise
In addition to demonstrating that enough lawfully obtained capital was invested in an NCE—and that the investment was responsible for the creation of ten job positions—an I-526E petition must demonstrate that the EB-5 investor is actively engaged in managing the NCE. Those who make direct investments in an NCE may manage the enterprise, act as a member of the entity’s Board of Directors, maintain voting control, or otherwise demonstrate day-to-day involvement with the business. Typically, NCEs sponsored by a regional center are structured as limited partnerships. In such cases, an EB-5 investor is a limited partner, and within the framework of the Uniform Limited Partnership Act, he or she is considered sufficiently engaged in managing the NCE to satisfy the requirements of USCIS. The same applies for limited liability companies.
Once an EB-5 investor has selected a project and made the necessary investment, he or she must complete Form I-526E, Immigration Petition by Alien Entrepreneur, and submit it, along with all supporting documents, to U.S. Citizenship and Immigration Services (USCIS). USCIS will then evaluate the I-526E petition and determine whether the applicant is eligible for an EB-5 visa.
Immigration attorneys compile and submit I-526E petitions on behalf of their clients.
Once the investor files the I-526E petition, within 7-10 days they receive an acknowledgement or receipt number for the petition from the USCIS. This is called the I-797 (C). This serves as an acknowledgement that the USCIS has received all the paperwork submitted and will start reviewing the investor’s application.
If any information is missing or inadequate, USCIS may send a Request for Evidence (RFE), which will delay the approval of the petition.
It is highly recommended that an investor obtains legal services for their immigration petition submission. The documentation needed for the I-526E petition package is extensive, and an experienced immigration attorney can provide valuable assistance with the petition, consular interview, and visa processing.
Once the I-526E petition is filed, the processing time can be verified directly in the USCIS website through this link: https://egov.uscis.gov/processing-times/. As of January 2023, the average processing time was 58.5 months, except for China and India petitioners. Once approved, the time for an investor to schedule and pass the U.S. Consulate interview may vary from a few to several months, depending on the U.S. Consulate’s schedule availability. After that, once the visa holder enters the U.S. with the EB-5 visa, the conditional green card should be received by mail in a few weeks.
The I-526E petition is the initial application for the EB-5 Immigrant Investor Program. Prospective investors and their attorneys file this petition with the USCIS and include documentation demonstrating the investor’s eligibility.
DENIAL, WITHDRAWAL, FAIL, AND REFUND RELATED QUESTIONS
Applicants (via counsel) may withdraw their I-526E at any time prior to adjudication by mailing a letter requesting withdrawal to the USCIS.
Withdrawal or denial should not have any negative impact on future visas or travels to the U.S.
a) If the project does not create the jobs required
If an investor cannot demonstrate that the project has created ten qualifying jobs, then the I-829 can be denied.
b) Failure to travel to U.S. (maintaining residency) by the investor.
Once the conditional green card is obtained, the principal applicant must fulfill basic continued presence conditions. Investors should consult with immigration counsel how best to meet these requirements.
Requirement of Maintaining Green Card During the Conditional Green Card Period:
For simply maintaining residency status and your green card active, an investor must spend no more than 180 CONSECUTIVE days OUTSIDE of the U.S. EB-5 visa holders should consult with their immigration attorney about continued presence requirements. The conditional Green Card does permit a holder to travel freely in and out of the United States.
Once the I-829 (permanent green card) petition is adjudicated, investment capital may be returned.
Failure by a project to return capital, in part or in full, can occur for several reasons, including:
- The project goes into trouble, cannot maintain cash flows, and is not successful.
- The fund does not have collateral on the project, ability to force withdrawal / repayment.
It has to be noted that a project may fail from the economic/financial standpoint, and still support the approval of the investors’ I-829 petition, as far as it can be demonstrated that the necessary jobs were created, and the qualified EB-5 investments were maintained for the required 2 years.
I-526E petitions are most commonly rejected due to the applicant’s failure to demonstrate that investment funds were lawfully obtained, or for project-related issues.
No, it does not.
In the event of an unforeseen denial by USCIS, the offering documents for the investment will specify how funds are returned. These procedures are usually specified in the Limited Partnership Agreement and the Escrow Agreement.
AGE AND SPONSORSHIP
The child status protection act (CSPA) provides some relief for children who would have maintained eligibility but for the time USCIS took to adjudicate the immigrant visa petition. This relief takes the form of subtracting the time the petition was pending from the child’s age; this is the child’s “CSPA age.”
Provided that the child’s CSPA age is under 21 at the time the immigrant visa is issued to the principal, the child will be eligible to receive a visa based on age, even if the child’s real age has reached 21.
So, assuming the I-526E takes 14 months to adjudicate, the son won’t ‘age’ during that period. When the green card (either AOS or consular processing) is approved, the son will be his actual age minus the 14 months, if that puts him over 21, which will be likely, then he will not be eligible.
We can prevent any age out issues by filing the case before the child’s 21st birthday. Upon filing the I-526E petition, the child’s age will freeze for immigration purposes and remain that way until the I-526E is approved.
It depends on the specific state’s requirements. In most cases, the student would move to the U.S. after their junior year of high school and spend their final year in the state and may qualify for in-state-tuition.
Yes. This is a very common option; in fact, it is one of the most popular ones. It is important to note that BEFORE this transaction occurs (the gift), the couple should engage their financial adviser and immigration counsel so that this gifting process is done correctly.
CITIZENSHIP
One of the most important rights legal permanent residents possess is the right to obtain U.S. citizenship after five years. There are two ways to become a U.S. citizen. One is by being born in the U.S. or being born to a U.S. citizen.
The other way is by naturalization. The first step in becoming a U.S. citizen through naturalization is to become a Legal Permanent Resident (LPR). Being an LPR for 5 years is one of the basic requirements for qualifying the naturalization. A second requirement is being physically present in the U.S. for 30 months during the 5 years prior to the naturalization application. Once becoming a U.S. citizen, an individual is entitled to benefits including the right to vote and hold public office.
Permanent resident status is not the same as U.S. citizenship. While permanent residents can live and work in the United States, they remain citizens of their home nation. As such, permanent residents cannot obtain U.S. passports, cannot vote in U.S. elections, and are not allowed to run for U.S. elected office.
U.S. citizens may be able to more easily bring into the United States family members who are foreign nationals. Citizens also have more access to federal jobs as well as federal assistance and benefits—including Social Security and Medicare. To become a citizen of the United States, a permanent resident must file for citizenship through USCIS.
EB-5 investors may apply for citizenship after maintaining their permanent resident status for five years. This five-year period starts when an EB-5 investor is granted conditional permanent resident status.
Husband, wife and any unmarried children under the age of 21. It is possible for adopted children to be included in the family. Upon approval you will receive a form evidencing approval and a travel document. You should also receive a temporary green card in the mail.
If you are interested in obtaining U.S. Citizenship as soon as possible and become a naturalized U.S. citizen, then as you receive conditional green card and enter country, you should aim to spend at least 180 days per year in the U.S. for a period of 5 years.
For Naturalization – the individual must be physically present in the U.S. at least 50% of the time + 1 day for the last five years (so about 181 days per year). The clock for the five years of residence starts on the date of issuance of the first green card (during the conditional residence). Continuous residence is essentially that the individual does not have any trips outside of the U.S. greater than 180 days.
USCIS counts days out of the U.S. differently than we do. For USCIS, if you go on a cruise and leave Friday and come back Monday at 8:00AM, then you have been gone for four days. That is how they count, the day you left, the days in between, and the day you arrive back in the U.S. If you have a trip out of the U.S. greater than 180 days, you are presumed to have broken your “continuous residence” for naturalization purposes.
TIMELINE AND COSTS FOR THE EB-5 PROGRAM
Visa backlogs mean that investors must wait to obtain their EB-5 visas after I-526E petition approval. The duration of the wait is determined broadly speaking by how many visa applicants are ahead of a particular investor in the visa queue. Because children keep aging until the parent-investor’s place in the queue is reached, in-depth discussion with immigration advisors is essential to informed decision-making and planning before investment.
The U.S. immigration system is quota-based, meaning there are generally limits on how many visas may be allocated in a year. There are approximately 10,000 visas available a year in the EB-5 category. Whenever demand by visa applicants exceeds the supply of visas, there is a backlog. While there have been long-standing backlogs in other green card categories, the backlog in the EB-5 category is relatively recent, having onset in mid-2015. As of January 2023, there is a visa backlog for nationals from China and India.
The EB-5 process timing depends on a number of moving variables. These variables include investor preparation for filing, USCIS processing times after filing, visa wait times after approval, time for investor and family members to enter the U.S., and USCIS processing times for petitions to remove conditions.
The standard Administrative Fee in the EB-5 industry is between US$60,000 and US$90,000, which is what an EB-5 investor is typically charged by the issuer or the regional center.
See table below for total fees/costs (and the timing) incurred by a new EB-5 investor across their 5-year investment, as of January 2023:
I-I-526E Filing Fees
USCIS Filing Fee: $3,675
Attorney Fee: Approximately $15,000-$25,000
Administrative Fee: $50,000 – $100,000
Principal Investment: $800,000
I-829 Filing Fees
USCIS Filing Fee: $3,750
Attorney Fee: Approximately US$5,000-US$8,000
CHANGES SURROUNDING THE EB-5 PROGRAM
On the USCIS website at the following page: USCIS Policy and Procedural Memoranda for EB-5 Immigrant Investors.
There is a statutory cap of 10,000 Investor Visas per year for the EB-5 program in the EB-5 immigration law. Each country has a quota of 7 percent of the 10,000 visas allocated each year. A principal investor’s derivative family members count against the annual cap.
RFE-RELATED QUESTIONS
A Request for Evidence (RFE) from USCIS is a request for additional evidence to address and support specific parts of the pending I-526E petition. The petitioner may have a certain number of days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner (investor) does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives your response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.
USCIS may issue an RFE for virtually ANY reason, although the following reasons for an RFE are not unusual:
a) Source of Funds:
The USCIS may ask the Investor for further clarifications / paperwork that the money they are using to invest in the fund are absolutely clean and they had control over that money when they invested that amount. All of this paperwork is done by lawyers on behalf of the investors and hence the SOF is the most important check for this. If the lawyer himself does not approve the SOF, then the application must not be made, In which case we will not take the case until we are fully satisfied.
b) Job Creation or other project-related issues:
The USCIS may raise an RFE relating to the investment for evidence that the jobs were or are or will be created before the money is returned, or other business aspects of the investment. This is where the project due diligence plays such an important role and hence one must look at mature projects, which are nearing completion. Such an RFE requires the funds to prove that the at least 10 jobs per investor have been created.
The first thing to do is to notify your immigration attorney. They will work with the USCIS and you to ensure that the concerns of USCIS are appropriately addressed. Not answering the RFE is not an option, within the time period provided by USCIS, it may automatically mean that the investor does not intend to carry the case forward.
JOB CREATION QUESTIONS
Each EB-5 Visa investment must create at least 10 full-time jobs for U.S. workers, lawful permanent residents, or immigrants authorized to work in the United States. Job creation must occur over a period of two years. By pooling funds with other investors in a Regional Center through the EB-5 Regional Center Program, investors receive the benefit of indirect job creation.
The 10 jobs need to be created before the positive adjudication of the I-829 petition (the conversion of the Conditional Green Card to the Permanent Green Card).
TARGETED EMPLOYMENT AREA (TEA) RELATED QUESTIONS
A TEA is a geographical area that is considered rural or has an unemployment rate of at least 1.5 times the national average. When EB-5 Visa applicants invest in a TEA, they can invest $800,000 rather than $1,050,000. Individual states issue letters confirming a location as a TEA.
TEA designation by USCIS requires the applicant to submit evidence (examples given above) that the location of the NCE in which the applicant is investing has an average unemployment rate of 150 percent of the national average, as shown by a letter issued by a state authority. The applicant can submit a letter from an authorized state government body stating that the location of the NCE has been designated a high unemployment area.
DIRECT EB-5 VS INDIRECT (REGIONAL CENTER) EB-5
If you want to manage your own business, consider a “direct investment” approach to EB-5 by investing $1,050,000 (or $800,000 in a TEA) into your own business, which you control, and creating the necessary 10 new jobs within that new enterprise. If your goal is to have a Green Card and not to actively manage a business, it is more often more convenient and possibly with much less risk to utilize a structured investment program in the Regional Center EB-5 category rather than to start and maintain your own business.
KEY EB-5 REQUIREMENTS
1. Minimum Capital Requirements:
- $800,000 investment in a new business: 90% of EB-5 applicants invest through the Regional Center Program at the $800,000 level, in a Targeted Employment Area (TEA)
- $1,050,000 option available for non-TEA areas
2. New U.S. Jobs Requirements:
- Create or preserve at least ten (10) full-time jobs for American workers
3. “At Risk” Investment:
- Investment must be “At-Risk” (i.e., fully invested in the project, fund or new company) for the duration of the investor’s conditional residency period
- Per U.S. law, the EB-5 investor cannot be offered any guaranteed return on or of principal nor possess any redemption rights
4. Legally Sourced Investment:
Acceptable options include (but are not limited to):
- Salary earned through lawful employment
- Sale of Portfolio or Property
- Gifts of money from family members, friends, employers
- Profits made from sale of a house, real estate or other assets
- Loan against Collateral (Margin Loan or Loan Against Property)
In order for a project to qualify as an EB-5 Project with USCIS, the project manager must prepare multiple documents as evidence to determine whether or not the project is compliant with EB-5 Rules and Regulations. These include the Business Plan, PPM, Jobs reports, and all supporting documentation, which are provided by the project manager, and are all submitted to USCIS with the investor’s petition.
No. An EB-5 investor is not required to be majority owner of the NCE, or to be the sole owner of the NCE
I-829 RELATED QUESTIONS
The I-829 petition is the final step in the EB-5 Immigrant Investor Program. Investors and their attorneys file this petition with USCIS and provide evidence that the investor has successfully fulfilled all of the program’s requirements, particularly that investor funds resulted in the creation of at least ten jobs. Upon approval of the petition, investors and their family members receive permanent green cards.
Investor Visa Key Facts
EB-5 Investor
Must either invest $800,000, or $1,050,000 in a new commercial enterprise, directly or indirectly (passively) and employ at least 10 qualifying jobs within 2 years
No English language or work visa requirement
Direct Path to Green Card (permanent residency) and Citizenship for petitioner, spouse and unmarried children under 21 years of age
Any citizen almost any country qualifies for an EB-5 visa, so long as they can show the source and traceability of the funds they are using for their EB5 capital investment
If the petitioner qualifies, can choose to legally reside in the USA from the day they apply
Can either invest the capital passively in a project and be entitled to receive the investment back within 5 to 7 years plus interest, or actively in an operating business
- Must either invest $800,000, or $1,050,000 in a new commercial enterprise, directly or indirectly (passively) and employ at least 10 qualifying jobs within 2 years
- No English language or work visa requirement
- Direct Path to Green Card (permanent residency) and Citizenship for petitioner, spouse and unmarried children under 21 years of age.
- Any citizen almost any country qualifies for an EB-5 visa, so long as they can show the source and traceability of the funds they are using for their EB5 capital investment.
- If the petitioner qualifies, can choose to legally reside in the USA from the day they apply.
- Can either invest the capital passively in a project and be entitled to receive the investment back within 5 to 7 years plus interest, or actively in an operating business
E-2 Investor
No defined investment minimum amount, however, at least $100,000 in the acquisition of an existing business or starting of a new business
The success of the business will always be directly tied to the immigration status of you and your family, with no possibility for a green card or citizenship
Must speak English at a level of working proficiency as a language requirement
Must put all the capital at risk and commit to the business financially before applying to USCIS
Your immigration attorney must renew your E-2 visa every 1 to 5 years
The business must continue being successful or USCIS will deny your renewal petition
You and your spouse can obtain social security numbers, and your spouse can work legally in the U.S.
Your children can access the free public school system until the end of high school
Usually takes less than 90 days, unless a specific U.S. Consulate is experiencing unusual delays due to a country’s current economic or social situation
- No defined investment minimum amount, however, at least $100,000 in the acquisition of an existing business or starting of a new business
- The success of the business will always be directly tied to the immigration status of you and your family, with no possibility for a green card or citizenship
- Must speak English at a level of working proficiency as a language requirement
- Must investor visa comparison your immigration attorney every 1 to 5 years
- The business must continue being successful or USCIS will deny your renewal petition
- You and your spouse can obtain social security numbers, and your spouse can work legally in the U.S.
- Your children can access the free public school system until the end of high school