EB-5 Investor Green Card

EB-5 Investor Green Card

The EB-5 visa was created by the Immigration Act of 1990 for immigrant investors. The EB-5 visa permits a foreign national to obtain permanent residency in the United States. The EB-5 visa also enables the spouse of the visa holder and the unmarried children under the age of 21 to obtain permanent residency in the United States.

To qualify for an EB-5 Visa, individuals must invest $1,050,000.00 in a "Non-Targeted Employment Area" or at least $800,000.00 in a “Targeted Employment Area” or $800,000 in a Regional Center. Along with their investment, investors must also create 10 jobs for U.S. workers, either directly or indirectly. The applicant must project that the funds used as investment for the EB-5 petition were earned in a lawful manner. The applicant must prove that all the investments were earned via lawful business, salary, investments, property sales, inheritance, gift, loan, or other lawful revenues.

Upon the approval of the application, the applicant must then attend the visa interview at the U.S. Consulate abroad to confirm that both the applicant and the dependents go through a police, medical, security and immigration history background checks prior to being approved for conditional permanent residence. 

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 United States Visa for Immigrant Investors that was created by the Immigration Act of 1990. The EB-5 visa permits a foreign national to obtain permanent residency in the United States. Aside from marrying a U.S. Citizen, an EB-5 Visa is the fastest way to establish Permanent Residency in the United States.

Who qualifies for EB-5 Visa?

To qualify for EB-5 Visa, one must:

• Invest $1.05 Million in a Non-Targeted Employment Area or $800,000 in Targeted Employment Area or $800,000 in a Regional Center.
• Create or save ten (10) full time jobs for U.S. workers in the United States for at least two (2) years.
• Project that the funds used as investment for the EB-5 petition were earned in a lawful manner.
• Prove that all the investments were earned via lawful business, salary, investments, property sales, inheritance, gift, loan, or other lawful revenues.
• Establish a lawful business entity in the U.S and prove that they are actively partaking in the business.

What are the benefits of an EB-5 Visa?

• Fastest way to obtain a Green Card without marrying a citizen
• Allows dependents to gain a Green Card

What are the requirements?

• Must submit documentation illustrating:

• The geographic region in the U.S. where the Regional Center will focus
• How jobs will be created directly or indirectly
• The amount and source of capital being invested
• How the business plan will have a positive effect on the regional economy or federal economy

Is there an annual limit on EB-5 Visas?

There is a cap of 10,000 per year for investor Green Cards. If more than 10,000 people apply in one year, or a large amount of people from your country apply that year, then it may be likely that one is placed on a waiting list. About 3,000 of the annual 10,000 EB-5 visas are set aside for foreigners who have invested in TEAs or targeted employment areas.

What documents are necessary in order to apply for an EB-5 Visa?

Applicants will need to submit Form I-526, Immigrant Petition by Alien Entrepreneur to USCIS along with the documents such as:

• Filing fee
• Tax returns for the recent five years, bank account records, financial statements for each business along with business licenses.
• Proof of entity establishment such as certificate of merger or consolidation, business license, certified financial reports, etc.
• Proof of investments such as copies of recent bank statements, mortgages or loans, or any other suitable evidence that the assets are securely in the applicant's possession.
• Proof of creating or securing ten full-time positions for U.S. workers. The individual must provide Form I-9, copies of tax returns or other supporting documents.
• Proof that the applicant will be involved with management by providing a statement of job title and description, and proof that the applicant holds a position on the board of directors.

Does the applicant have to go to a U.S. Consulate for a visa?

Yes! Upon approval, the applicant is required to attend a visa interview at the U.S. Consulate to go through a police, medical, security and immigration history background check prior to being approved for conditional permanent residence. After the visa is cleared, 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., then he or she will need to apply for Form I-485, Application for Adjustment of Status to Permanent Residence.

What happens after you get your Green Card through EB-5 Visa?

USCIS will usually grant the applicant two years of permanent residence. After which the applicant must submit an I-829, Petitioner by Entrepreneur to Remove Conditions. As a part of this process, investors must prove that they have not retracted their funds, and that ten jobs have been created. Once conditions are removed, Green Cards will be valid for next (10) years.

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

After completing five (5) years of Permanent Residence in the U.S., the applicant may submit Form N-400, Application for Naturalization to become a U.S. Citizen. The applicant will be required to appear for an interview followed by an Oath Ceremony to be sworn as a U.S. Citizen.

What is the Regional Center Program?

The Regional Center Program is another avenue to obtain the EB-5 visa. A Regional Center is a government approved entity that sponsors investment projects which will create the necessary ten jobs per investor, whether directly or indirectly. Regional Centers must be approved and designated by USCIS.

A benefit of investing in Regional Centers is that investors can get their investment money back after the investment has been maintained for two years and their conditional residency has been completed. Regional Centers may also be more suitable for investors who prefer a more passive role while direct investment models are ideal for those who prefer to be heavily involved in their investment.

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

• Form I-956, Application for Regional Center Designation
• Form I-956 Supporting Documentation, including:
  • A detailed business plan
  • Relevant operating and partnership agreements
  • Report that shows job-creation forecasts
  • Transactional, corporate, and/or loan documents

Are there any alternative Regional Center investment options?

Instead of establishing a Regional Center, one may choose to affiliate with or rent an EB-5 Regional Center. There are hundreds of USCIS approved Regional Centers. Renting a Regional Center allows investors to take advantage of Regional Center requirements, while also saving on the additional costs of creating a Regional Center themselves.

What documents are required for EB-5 memo preparation?

• Copies of all previous I-797 approval notices, passport, visa, and I-94 for each applicant/dependent
• Copies of all 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 qualifying company for past 2 years (if any)
• Accountant's financial statements, including profit, loss, and balance sheet of the qualifying company for past 2 years
• Copies of proof of investment: canceled check from bank account, wire transfer for purchase of company, company purchase agreement and receipts
• Copy of source of investment: foreign bank account statement, sales receipts of assets sold, pay stubs, and foreign tax return filings
• Payroll records for past 2 years of the enterprise, including Form I-9's and any contracts of employment
• Organizational chart
• Comprehensive business plan with cash flow projections for the next 3 years
• Entrepreneur's resume, copy of degree(s), and/or certificates of accomplishment
• If it's a new business, documents showing that the investment made is sufficient, such as market surveys, written trade association statistics or written reports from qualified business consultants

Source of Funds

In regards to the lawful source of funds, it is okay if you do not have certain documents because they are from years ago. Many investors cannot obtain old bank or tax records because banks do not keep very old documents. In these cases, you should write an affidavit and explain that you went to the bank to request documents but were informed that the bank does not hold such old documents. It is also helpful if the bank can issue a letter explaining the situation. It is rare that the bank will agree to do this, but sometimes they do. Alternatively, you can take third party friend or relative with you to the bank, and then that person can also write a supplementary affidavit confirming that they witnessed your explanation.

Records of the lawful source should be showed as follows:

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

Qualified Immigrants

Two or more individuals may join to make an EB-5 investment. A single, new commercial enterprise may be used by more than one investor, granted each petitioning investor has separately invested the required amount and each investment results in the creation of at least 10 jobs.

Buying an Existing Business

By restructuring an existing business, an investor may create a “new commercial enterprise” and qualify for a visa. The focus should be on creating 10 or more new jobs for United States workers.

“Investing” or “Actively in the Process of Investing” “Capital”

The statute requires an EB-5 petitioner to have invested or be in the process of investing. The term “invest” means to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the entrepreneur and the new commercial enterprise does not constitute a contribution of capital and will not constitute an investment. The regulations define “capital” as cash and cash equivalents, equipment, inventory, and other tangible property. Capital does not include loans by the petitioner or other parties.

Benefitting the U.S. Economy

The statute requires that investments “benefit the U.S. economy” to qualify the investor for an EB-5 visa or status. The statute provides no guidance on which investments benefit the economy. USCIS adjudicators are left to their subjective interpretations of the investment and its relative benefits when reviewing the petition. Arguably, the petitioner has benefited the economy by merely meeting the employment and investment requirements of the visa classification. However, because the statute specifically identifies the “benefit” element as distinct from other components of the visa, it appears that the applicant must independently show that the enterprise, in the conduct of its business, will benefit the U.S. economy. Therefore, a consulting firm exclusively serving customers abroad with no return benefit to the U.S. economy (other than employing the requisite number of workers), might not support an EB-5 petition. In contrast, showing that the new enterprise provides goods or services to U.S. markets should satisfy this requirement.

Federal regulation of foreign investments is extensive. Some regulations restrict foreign investments in aviation, banking, shipping, communications, land use, energy resources, and government contracting. Additionally, Congress has imposed several disclosure and data requirements on foreign investments. An investment may not be deemed beneficial to the U.S. economy if it runs afoul of any statutory limitation on foreign investment.

Designation of a High Unemployment Area

The state government may designate a particular geographic or political subdivision as an area of high unemployment if it has an unemployment of at least 150 percent of the national average rate. Evidence for a high unemployment area must include:

• Form I-526
• Date of designation
• Methods by which the statistics were gathered

Creation of Employment in a Targeted Employment Area

To show that the new commercial enterprise has created or will create employment in a targeted employment area, the petition must be accompanied by:

• For a rural area, there must be evidence that the commercial enterprise is not located within any standard metropolitan statistical area, or within any city or town having a population of 20,000 or more; or
• For a high unemployment area, evidence that the metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150 percent of the national average rate; or a letter from the state in which the new commercial enterprise is located which certifies that the area has been designated as a high unemployment area.

Creating or Saving Jobs

To qualify for EB-5 status, an investment generally should create full-time employment for at least 10 U.S. citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the United States. Neither the investor, investor's spouse, or children may count towards the minimum count of 10 employees. Nonimmigrants are excluded from the count. Immigrants including conditional residents, temporary residents, asylees, refugees, and recipients of suspension of deportation or cancellation of removal may all be considered employees for EB-5 purposes.

The EB-5 Regional Center Program does not require the investment to create 10 direct jobs. Instead, it is permittable to create direct or indirect jobs and improvement of the economy.

The Types of Jobs

The jobs must be created full-time which means a minimum of 35 working hours per week. Job-sharing arrangements, where two or more qualifying employees share a full-time position, will also serve as full-time employment if the hourly requirement per week is met.

Troubled Businesses

Special rules govern investments in “troubled” businesses. A troubled business is one that has been in existence for at least two years, and the loss for such period is at least equal to 20 percent of the business's net worth before the loss. To establish an investment in a troubled business, the petitioner is still required to invest the full amount, dependent on whether they invest in a TEA, non-TEA, or Regional Center. To meet the job requirements, the total number of jobs created and/or preserved must total ten. If the troubled business has four employees when you invest in it, then you must preserve those jobs and hire six more employees. If the troubled business has ten employees, then those jobs need to be preserved and no new employees should be hired.

Failure to File Form I-829

A foreign investor in conditional resident status must submit Form I-829 to the appropriate service center within the 90-day period immediately preceding the second anniversary of his or her admission to the United States as a conditional permanent resident. Failure to do so will result in automatic termination of the conditional resident's status and initiation of removal proceedings.

EB-5 Regional Center Program Fully Reauthorized

On June 24, 2022, the U.S. District Court for the Northern District of California fully reauthorized the EB-5 Regional Center Program. Regional centers whose certification had been revoked by the United States Citizenship and Immigration Services (USCIS), can now resume operations, and accept new investors. It has been authorized until September 30, 2027. Grandfathering laws require USCIS to continue processing EB-5 petitions if the EB-5 Program lapses in the future, if the petition has been filed by September 30, 2026.

Foreign nationals can invest in EB-5 regional center projects and file Form I-526, the first step in the EB-5 immigration process. A significant benefit introduced in the EB-5 Reform and Integrity Act (RIA) of 2022 is reserved EB-5 visas and concurrent filing of Forms I-526 and I-485. The EB-5 RIA states that, each fiscal year, the Department of State must set aside 32% of the EB-5 visas for investors in TEAs and public infrastructure projects. Rural TEAs are allotted 20% of the EB-5 visas, high unemployment TEAs receive 10%, and infrastructure projects receive 2%.

Each participating country may not obtain more than 7% of the total visa supply each fiscal year. However, foreign nationals who invest in one of the reserved visa categories will be eligible for a visa as soon as their I-526 petitions are approved, even if their country has exceeded its annual limit.

EB-5 applicants who already reside in the country under a non-resident visa such s H-1B, F-1, E-2, T-N OR L-1, may use Form I-485 to adjust their immigrant status after making an EB-5 investment. Since Forms I-526 and I-485 may be filed concurrently, investors can live, work, and study in the United States before receiving their EB-5 visas.

The Law Office of Keshab Raj Seadie is committed to helping investors immigrate to the United States as quickly as possible under the EB-5 visa category.