EB-5 Investor Green Card

EB-5 IMMIGRANT INVESTOR PROGRAM: INTRODUCTION

EB-5 is the employment-based fifth preference visa. This visa is available to foreign investors, along with their spouses and unmarried children under 21, who (1) make the necessary capital investment in a commercial enterprise in the U.S.; and (2) plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers. The EB-5 immigrant investor program is a path to Green Card (lawful permanent residence) for immigrants who invest in the United States (in a new commercial venture) and provide employment (at least 10 full-time jobs) for United States citizens.

The immigrant investor program is administered by U.S. Citizenship and Immigration Services, which designates EB-5 regional centers that participate in the program. Form I-956, Application for Regional Center Designation, is used by entities to apply for designation as a regional center. U.S. Citizenship and Immigration Services defines an EB-5 regional center as “an economic unit, public or private, in the United States, involved with promoting economic growth.”

U.S. Citizenship and Immigration Services specifies the following steps for the EB-5 petition and application process:

1. File Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor.

If an immigrant visa is immediately available to you, you may file Form I-485, Application to Register Permanent Residence or Adjust Status, together with your Form I-526 or Form I-526E, while your Form I-526 or Form I-526E is pending, or after your Form I-526 or Form I-526E is approved. To make sure that an immigrant visa is immediately available to you when you file your Form I-485, see the Visa Availability and Priority Dates and Adjustment of Status Filing Charts from the Visa Bulletin pages on our website as well as the Visa Bulletin.

2. After we approve your Form I-526 or Form I-526E petition, either:
   • File DS-260, Application for Immigrant Visa and Alien Registration, with the U.S. Department of State to obtain an EB-5 visa abroad to seek admission to the United States; or
   • File Form I-485, Application to Register Permanent Residence or Adjust Status,with USCIS (if you did not already file Form I-485 prior to Form I-526 or Form I-526E approval) to adjust status to a conditional permanent resident within the United States. Once we approve your Form I-485 application or upon admission into the United States with an EB-5 immigrant visa, we will grant conditional permanent residence to the EB-5 investor and derivative family members for a two-year period.
3. File Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, within the 90-day period immediately before the second anniversary of your adjustment of status or admission to the United States as a conditional permanent resident.
4. If USCIS approves this petition, we will remove the conditions from your lawful permanent resident status and from that of any dependents you included.

Depending on the location, foreign investors are required to spend a minimum of $800,000 in a rural area or an area of high unemployment, or $1,050,000 in all other locations, on a project that meets the program's requirements. Investors must prove that the funds came from lawful sources. The project must have a base in the United States. The capital investment must be in a new commercial enterprise and must lead to employment of 10 full-time U.S. workers.

In their immigrant petition, investors must demonstrate that (1) the new business has received or is actively in the process of receiving the necessary capital investment, (2) the funds came from lawful sources, (3) at least 10 full-time jobs for qualified workers will be created, and (2) the investor is currently managing or in the near future will manage the new business.

EB-5 IMMIGRANT INVESTOR PROGRAM

The EB-5 visa, established by the Immigration Act of 1990, offers permanent residency in the United States to immigrant investors. In addition, the visa extends the opportunity for the spouse and unmarried children under 21 years old to obtain permanent residency as well.

To be eligible for the EB-5 visa, individuals must invest either $1,050,000 in a "Non-Targeted Employment Area" or at least $800,000 in a "Targeted Employment Area" or a Regional Center. Alongside the investment, investors must create ten jobs for U.S. workers, either directly or indirectly. It is necessary for the applicant to demonstrate that the funds used for the EB-5 petition were acquired lawfully, supported by evidence of legal business earnings, salary, investments, property sales, inheritance, gifts, loans, or other lawful sources of income.

Once the application is approved, the applicant and their dependents must undergo police, medical, security, and immigration history background checks before attending a visa interview at the U.S. Consulate abroad. This step is fundamental to ensure that all conditions for conditional permanent residence are met.

EB-5 Project Located In	Investment Amount
Targeted Employment Area (TEA)	$800,000
Non-Targeted Employment Area (Non-TEA)	$1,050,000
Regional Center	$800,000

What is an EB-5 Visa?

An EB-5 Visa is a form of visa available for immigrant investors in the United States. It was established by the Immigration Act of 1990. The EB-5 visa allows foreign nationals to obtain permanent residency in the United States, making it one of the quickest ways to establish permanent residency aside from marrying a U.S. citizen.

Who Qualifies for EB-5 Visa?

To be eligible for an EB-5 visa, individuals must meet the following criteria:

1. Make an investment of $1.05 million in a Non-Targeted Employment Area or $800,000 in a Targeted Employment Area or a Regional Center.
2. Create or preserve at least ten full-time jobs for U.S. workers within the United States for a minimum of two years.
3. Demonstrate that the funds used for the EB-5 petition were obtained lawfully.
4. Provide evidence that the investments were acquired through legitimate means such as business income, salary, investments, property sales, inheritance, gifts, loans, or other lawful sources of revenue.
5. Establish a lawful business entity in the United States and actively participate in the business.

Meeting these requirements allows individuals to pursue an EB-5 visa and potentially obtain permanent residency in the United States.

What are the benefited of an EB-5 Visa?

• Fastest method of getting a Green Card without having to marry a U.S. Citizen
• Dependents are able to get a Green Card as well

What are the requirements for an EB-5 Visa?

To apply for an EB-5 Visa, the following documentation needs to be submitted:

1. Documentation specifying the geographic region in the U.S. where the Regional Center will focus its investments.
2. Evidence demonstrating how jobs will be created directly or indirectly as a result of the investment.
3. Detailed information about the amount and source of capital being invested.
4. A comprehensive business plan showcasing the positive impact the business will have on the regional or federal economy.

Is there an annual limit on EB-5 Visas?

Yes, there is an annual cap of 10,000 investor Green Cards. If the number of applications exceeds 10,000 in a given year or if there is a high volume of applicants from a particular country, it is possible that applicants may be placed on a waiting list. Approximately 3,000 of the annual EB-5 visas are reserved for individuals who have invested in Targeted Employment Areas (TEAs).

What documents are necessary for an EB-5 Visa application?

Applicants must submit Form I-526, Immigrant Petition by Alien Entrepreneur to USCIS, along with the following documents:

1. Filing fee.
2. Tax returns for the past five years, bank account records, and financial statements for each business, including business licenses.
3. Proof of entity establishment, such as certificates of merger or consolidation, business licenses, and certified financial reports.
4. Evidence of investments, such as recent bank statements, mortgages or loans, or any other suitable documentation showing that the applicant possesses the assets.
5. Proof of creating or securing ten full-time positions for U.S. workers, which may include Form I-9, copies of tax returns, or other supporting documents.
6. Verification of the applicant's involvement in management, including a statement of job title and description, as well as proof of holding a position on the board of directors.

Does the applicant need to visit a U.S. Consulate for a visa?

Yes, after approval, the applicant is required to attend a visa interview at a U.S. Consulate. This interview involves undergoing background checks related to police records, medical history, security, and immigration. Upon successful completion of the interview and clearance of the visa, the applicant will have six months to enter the U.S. as a lawful permanent resident. If the applicant is already in the U.S., they will need to apply for Form I-485, Application for Adjustment of Status to Permanent Residence.

What happens after obtaining a Green Card through the EB-5 Visa?

After receiving a Green Card through the EB-5 Visa, USCIS typically grants the applicant two years of permanent residence. The applicant must then file Form I-829, Petition by Entrepreneur to Remove Conditions. During this process, investors must demonstrate that their funds have not been withdrawn and that ten jobs have been created. Once the conditions are removed, the Green Card will be valid for the next ten years.

When can an EB-5 Visa holder become a U.S. Citizen?

An EB-5 Visa holder can apply for U.S. citizenship after completing five years of Permanent Residence in the U.S. By submitting Form N-400, Application for Naturalization, the applicant can begin the process. This involves attending an interview and subsequently participating in an Oath Ceremony to be sworn in as a U.S. Citizen.

What is the Regional Center Program?

The Regional Center Program offers an alternative pathway to obtaining the EB-5 visa. A Regional Center is a government-approved entity that sponsors investment projects aimed at creating the required ten jobs per investor, either directly or indirectly. Regional Centers must receive approval and designation from USCIS.

One benefit of investing in Regional Centers is that investors may be able to recoup their investment funds after maintaining the investment for two years and completing the conditional residency requirement. Regional Centers can be a suitable option for investors who prefer a more passive role, while direct investment models are ideal for those who wish to be actively involved in their investment.

What documents are necessary to apply for an EB-5 Regional Center Designation?

To apply for an EB-5 Regional Center Designation, the following documents are required:

Form I-956, Application for Regional Center Designation

Supporting documentation for Form I-956, including:

• A comprehensive business plan
• Relevant operating and partnership agreements
• Job-creation forecasts report
• Transactional, corporate, and/or loan documents

Are there alternative investment options within Regional Centers?

Instead of establishing their own Regional Center, individuals have the option to affiliate with or lease an existing USCIS-approved Regional Center. There are numerous Regional Centers available for this purpose. Renting a Regional Center allows investors to benefit from the Regional Center requirements while saving on the additional costs associated with creating their own Regional Center.

What documents are required for EB-5 memo preparation?

In order to prepare an EB-5 memo, the following documents are necessary:

• Copies of previous I-797 approval notices, passport, visa, and I-94 for each applicant/dependent
• Copies of outstanding stock certificates and/or other proof of ownership
• Articles of Incorporation and IRS Tax ID number confirmation
• Business License(s)
• Business Lease
• Tax returns of the qualifying company for the past two years (if applicable)
• Accountant's financial statements, including profit, loss, and balance sheet of the qualifying company for the past two years
• Proof of investment, such as canceled checks, wire transfer receipts, purchase agreements, and receipts
• Proof of the source of investment, including bank statements, sales receipts, pay stubs, and foreign tax returns
• Payroll records for the past two years, including Form I-9s and employment contracts
• Organizational chart
• Comprehensive business plan with cash flow projections for the next three years
• Entrepreneur's resume, copies of degrees and certificates
• Documents demonstrating the sufficiency of the investment for new businesses, such as market surveys, trade association statistics, or reports from qualified business consultants

Source of Funds:

For the lawful source of funds, if certain documents are not available due to their age, an affidavit can be written explaining the unavailability and efforts made to obtain them. It may also be helpful to have a letter from the bank confirming their inability to provide the old documents. Alternatively, a third-party witness can accompany the applicant to the bank and provide a supplementary affidavit attesting to the explanation.

The records of the lawful source of funds should include:

• Records of sale of applicable land, including contract/deed of sale and bank records showing receipt of money
• Records of ownership of the land, including original purchase documents
• Records showing income of money used to purchase the land
• Employment records to substantiate employment income
• Applicable tax records

Qualified Immigrants:

Multiple individuals can join together to make an EB-5 investment, and a single new commercial enterprise can be used by more than one investor, as long as each investor meets the required investment amount and creates at least ten jobs.

Buying an Existing Business:

Restructuring an existing business can create a "new commercial enterprise" that qualifies for the EB-5 visa. The focus should be on creating ten or more new jobs for U.S. workers.

Investing or Actively in the Process of Investing Capital:

To meet the EB-5 requirements, the petitioner must invest capital, which includes cash and cash equivalents, equipment, inventory, and other tangible property. Loans from the petitioner or other parties are not considered capital.

Benefitting the U.S. Economy:

The investment should benefit the U.S. economy, and it is necessary to show that the new enterprise provides goods or services to U.S. markets. Compliance with federal regulations and limitations on foreign investments is crucial.

Designation of a High Unemployment Area:

A high unemployment area can be designated by the state government if it has an unemployment rate of at least 150 percent of the national average. Evidence must be provided to support the designation.

Creating or Saving Jobs:

An EB-5 investment should create full-time employment for at least ten U.S. citizens, lawful permanent residents, or other authorized immigrants. The investor, investor's spouse, or children cannot be counted towards the minimum number of employees. Full-time employment is defined as a minimum of 35 working hours per week.

Troubled Businesses:

Investments in troubled businesses have specific rules. A troubled business must have been in existence for at least two years, and its loss during that period must be equal to at least 20 percent of its net worth before the loss.

 The job requirements for troubled businesses involve preserving existing jobs and potentially hiring additional employees.

Failure to File Form I-829:

Failure to submit Form I-829 within the specified timeframe can result in the termination of conditional resident status and initiation of removal proceedings.

EB-5 Regional Center Program:

The EB-5 Regional Center Program has been fully reauthorized until September 30, 2027. Foreign nationals can invest in EB-5 regional center projects and file Form I-526. Reserved EB-5 visas are available for investors in targeted employment areas (TEAs) and public infrastructure projects. Different percentages of visas are allocated for rural TEAs, high unemployment TEAs, and infrastructure projects.

Adjustment of Status:

EB-5 applicants already residing in the U.S. under non-resident visas may use Form I-485 to adjust their immigrant status after making an EB-5 investment. Concurrent filing of Forms I-526 and I-485 allows investors to live, work, and study in the U.S. before receiving their EB-5 visas.

EB-5 Regional Center Program Reauthorized

The EB-5 Regional Center Program has been fully reauthorized by the U.S. District Court for the Northern District of California on June 24, 2022. Regional centers that had their certification revoked by USCIS can now resume operations and accept new investors. The program has been authorized until September 30, 2027. Grandfathering provisions ensure that USCIS will continue processing EB-5 petitions filed by September 30, 2026, even if the program lapses in the future.

Foreign nationals have the opportunity to invest in EB-5 regional center projects and initiate the EB-5 immigration process by filing Form I-526. The EB-5 Reform and Integrity Act (RIA) of 2022 introduces significant benefits, including reserved EB-5 visas and concurrent filing of Forms I-526 and I-485. The RIA mandates that 32% of the EB-5 visas each fiscal year be set aside for investors in targeted employment areas (TEAs) and public infrastructure projects. Of these, rural TEAs receive 20% of the visas, high unemployment TEAs receive 10%, and infrastructure projects receive 2%.

Each participating country is limited to obtaining no more than 7% of the total visa supply per fiscal year. However, foreign nationals who invest in the reserved visa categories will be eligible for a visa as soon as their I-526 petitions are approved, regardless of whether their country has reached its annual limit.

EB-5 applicants who already reside in the U.S. under non-resident visas such as H-1B, F-1, E-2, T-N, or L-1, can use Form I-485 to adjust their immigrant status after making an EB-5 investment. Concurrent filing of Forms I-526 and I-485 allows investors to live, work, and study in the United States before receiving their EB-5 visas.

The Law Office of Keshab Raj Seadie is dedicated to assisting investors in achieving their immigration goals under the EB-5 visa category. Call us today.