To immigrate to the United States in EB-5 status, you must invest between $900,000 and $1.8 million (depending on the location of the investment) into a commercial enterprise or designated regional center, that will create or preserve at least 10 full-time jobs “within a reasonable time.” Four types of jobs can be used to satisfy this requirement, depending on the circumstances — direct jobs, preserved jobs, indirect jobs and induced jobs.
Three types of EB-5 investments can generate jobs: (i) establishment of a brand-new commercial enterprise (ii) purchase of an existing enterprise and transformation of that enterprise by adding capital or employee such that it attains the character of a new enterprise and (iii) investment into a USCIS-designated “regional center”, where the regional center acts as an intermediary between the investor and the investment project.
Direct Jobs
A direct job is generated when the entity in which you invest hires a full-time employee to help carry out the project for which the investment was made. Hire 10 such people within two years of your investment, and you have met the job creation requirement for EB-5 status. The two-year deadline can sometimes be extended.
Job-sharing arrangements are also acceptable under certain circumstances. Under a job-sharing arrangement, two or more employees share the hours of a single full-time job. Under this arrangement, a full-time job shared by two or more employees counts as one job.
Two or more part-time positions, however, cannot be combined to equal two or more full-time jobs regardless of the cumulative total of hours worked.
Preserved Jobs
Suppose that, instead of starting a brand-new enterprise, you opt to purchase an existing enterprise. This investment can count as a “new commercial enterprise” if you increase the entity’s capital by at least 40 percent or increase its workforce by 40 percent. If the entity qualifies as “troubled” under USCIS standards, you can meet the job creation requirement by retaining old positions that would have disappeared if the troubled entity had collapsed.
Indirect Jobs
Under the regional center investment option, the investor does not directly hire employees. Instead, the regional center invests pooled investor funds into a project, and this project can generate jobs indirectly . A third-party company supplying products to the project, for example, might hire new employees to meet the increased demand generated by your investment. The USCIS will count this toward the 10-job requirement as an “indirect job.”
Induced Jobs
Suppose that you invest in a regional center, and it is impossible to identify 10 specific jobs that have been created as a consequence — third-party suppliers, for example did not hire 10 employees to meet the increased demand generated by your investment. In this case you may be able to convince the USCIS that your investment created 10 “induced jobs”, or a combination of indirect and induced jobs that collectively meets the 10-job requirement.
An induced job is a job that has been created as a result of employees spending their wages in the local community. In other words, the investment project stimulates the local economy to the point that jobs are created by companies that have no direct relationship to the original investment.
What is “a Reasonable Time”?
Even after Form I-526 is approved and you are granted “conditional permanent residence”, your “permanent residence” somehow lasts only two years. Within these two years, you must file Form I-829 and have it approved before the condition will be removed and you are granted full permanent residence.
The term “within a reasonable time” is ambiguous. A good rule of thumb is that the required jobs must be created within two years after Form I-526 is filed. The USCIS might grant you a bit of leeway beyond this informal deadline, however. The USCIS has stated that “jobs that will be created within a year of the two-year anniversary of the approved Form I-526 will ordinarily be considered to be created with a reasonable period of time.“
In this comprehensive guide, we will explore the supporting documents for the Form I-526 application process. Whether you’re an immigrant investor, a foreign national, an aspiring investor, or someone already in the EB-5 process for an immigrant visa, understanding these documents is essential for a smooth and successful journey.
By the end of this guide, you will have a clear roadmap for assembling the necessary documentation, ensuring your EB-5 application stands out and your business plan aligns with the program’s stringent requirements. Let’s embark on this informative journey to unlock the doors to your American dream.
Section 1: Attorney’s Involvement
Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative
This form is required only if a lawyer is helping you with your application package (which is highly recommended, due to the complex nature of the applicable legal principles and the required documentation). Your lawyer must complete and sign this form.
Section 2: Form I-526 Application Immigrant Petition by Standalone Investor (Alien Entrepreneur)
Form I-526
- Form I-526, Immigrant Petition by Standalone Investor: Ensure you complete form I-526 correctly, following the provided instructions on the United States Citizenship and Immigration Services (USCIS) website. When completing your form I-526 for submission, ensure accuracy and attention to detail:
- Sign Your Form: Your signature is essential; unsigned forms will be rejected.
- Use Current Edition: Download the latest form from the official website and fill it out electronically. Handwritten answers must be in black ink.
- Form Completeness: Fill out the entire form unless directed otherwise. Incomplete forms may be rejected.
- Avoid Errors: Do not use highlighters, correction fluid, or tape, as these can hinder scanning.
- Consistent Information: Maintain consistency in your name, date of birth, and A-Number across all forms, unless legally changed (provide proof).
- Correct Filing Fee: Pay the exact filing fee; incorrect or incomplete payments lead to rejection. Consider separate payments for multiple applications to avoid rejections affecting others.
- Cover Letter: It introduces your application and lists the supporting documents. Your immigration attorney can draft this for you.
Section 3: Establishing a New Commercial Enterprise (NCE)
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A new commercial enterprises means any for-profit activity formed for the ongoing conduct of lawful business. Evidence of establishment of an (NCE) include the business documents, and evidences depending on the type of organizational entity you are using which must include:
- Organizational Documents
- Articles of Incorporation: If your New Commercial Enterprise is a corporation, these articles outline the entity’s purpose, structure, and shareholders.
- Certificate of Merger or Consolidation: In cases where multiple entities are merging or consolidating to form the New Commercial Enterprise, this certificate formalizes the process.
- Partnership Agreement: For a New Commercial Enterprise structured as partnership, this agreement defines the roles and responsibilities of partners.
- Certificate of Limited Partnership: Specific to limited partnerships, this certificate establishes the roles of general and limited partners.
- Joint Venture Agreement: When two or more entities collaborate on the New Commercial Enterprise, this agreement outlines the terms and goals of the joint venture.
- Business Trust Agreement: In the case of New Commercial Enterprise structured as business trusts, this agreement details the trust’s operations and objectives.
- Certificate Evidencing Authority: This certificate verifies that your New Commercial Enterprise is authorized to conduct business in a specific state or municipality, or it may state that such a certificate is not required.
- Expanded Businesses: Demonstrating Capital Transfer and Growth: For investors involved in expanding existing businesses, it’s crucial to show that the required capital infusion has led to a significant increase in the business’s net worth or the number of employees. To support this claim, gather evidence that includes:
- Stock Purchase Agreements: If applicable, provide agreements outlining the purchase of company stock with the EB-5 capital.
- Investment Agreements: These documents detail the terms of the investment and its impact on the business.
- Certified Financial Reports: Include financial reports that clearly demonstrate the increase in the business’s net worth resulting from the EB-5 investment.
- Payroll Records: Document the hiring of new employees or the increase in existing staff as a direct consequence of the capital injection.
- Similar Instruments and Agreements: Any additional agreements or documents that validate the investment’s substantial impact on the business’s growth.
Section 4: Transactional Documents for the Project (if applicable)
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The legal structure of minimum investment in the project is crucial for both investors and USCIS. Transactional documents establish the foundation for your investment and include:
- Limited Partnership Agreements: When the project is structured as a limited partnership, these agreements define the roles and responsibilities of limited and general partners.
- Operating Agreements: For projects organized as limited liability companies (LLCs), operating agreements detail the management and operational structure.
- Escrow Agreements: These agreements outline the secure handling of investment funds, ensuring they are released to the project in compliance with EB-5 program requirements.
- Subscription Agreements: Investors sign these agreements to confirm their investment in the project, including the amount and terms of their commitment.
- Loan Agreements: If loans fund the project, provide details on terms, repayment schedules, and conditions.
- Offering Memoranda: These documents serve as an informational prospectus for potential investors, providing details about the project’s objectives, risks, and financial projections.
Section 5: Targeted Employment Area (TEA) Evidence
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Targeted Employment Area (TEAs) are areas where investment can have a more significant impact, and they often play a vital role in EB-5 applications, we’ll explore the different types of TEAs and the evidence needed to demonstrate your eligibility:
- TEAs in Rural Areas: If your EB-5 project is located in a rural area, you’ll need to provide evidence that your investment qualifies as such. This typically means showing that the project is situated:
- Outside of Standard Metropolitan Statistical Areas (MSAs): MSAs are urban regions defined by the U.S. Office of Management and Budget. Evidence should indicate that the project is not within an MSA.
- Outside of Cities or Towns with a Population of 20,000 or More: Provide data from the most recent U.S. Census confirming that the project is located outside any city or town with a population exceeding 20,000.
- TEAs in High Unemployment Areas: For projects in high unemployment areas, you must substantiate that the location qualifies. This can be done through:
- Unemployment Data for the Relevant Area: Gather unemployment data for the Metropolitan Statistical Area (MSA) or county where the new commercial enterprise (NCE) is primarily operating. This data should demonstrate an average unemployment rate of at least 150% of the national average rate.
- Certification from State Government: Alternatively, obtain a certification letter from an authorized state government body stating that the area where the NCE operates has been officially designated as a high unemployment area.
Section 6: Investment Capital
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Eb 5 investment capital includes cash and tangible assets owned by the investor, valued in U.S. dollars. The minimum investment amount depend on the filing date and location, on or after 3/15/2022, the minimum investment is $1,050,000 overall, $800,000 in TEA or rural (including infrastructure projects).
The heart of the EB-5 program is demonstrate that the invested capital will lead to the creation of qualifying jobs. To prove your commitment, you must provide the following documents:
- Bank Statements: Provide copies of your bank statements that clearly show the amounts you’ve deposited into the NCE’s U.S. business accounts.
- Evidence of Assets Purchased: If you’ve bought assets for the NCE, such as equipment or inventory, include documents like invoices, sales receipts, and purchase contracts. These papers should mention what was bought, how much it cost, when it was bought, and who made the purchase.
- Property Transfer from Abroad: If you’ve moved property from another country to be used by the NCE, submit documents like U.S. Customs and Border Protection’s commercial entry records, bills of lading (which detail shipments), and transit insurance policies. These should clearly indicate ownership info and the property’s fair market value.
- Money Transfers for Stock: If you’ve given money to the NCE in exchange for shares of stock, provide evidence of these transactions. Note that the stock should not have terms that allow the NCE to buy it back at your request.
- Loans or Mortgages: If you’ve borrowed money, and you’re personally and primarily responsible for repaying it (not the NCE), submit evidence of this arrangement. This may include loan agreements, promissory notes, or security agreements.
- Proof of NCE’s Business Activity: To demonstrate that the NCE is actively engaged in business, provide documents related to its operations:
- Invoices: Any bills or invoices the NCE has issued to clients or customers.
- Purchases: Documents showing what the NCE has bought for its business operations.
- Contracts: Agreements related to the NCE’s business dealings, which may include contracts with suppliers, service providers, or customers.
Section 7: Investor’s Source of Funds Documentation
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When applying for an EB-5 visa, it’s essential to show that your investment was made through lawfully sourced funds. Here’s how you can provide sufficient evidence:
- Foreign Business Registration Records: If your funds are from a foreign business, provide records that show the legal registration of that business in its home country.
- Business Tax returns: If you have any corporate, partnership, or other entity tax returns from the last seven years, include them in your application. These documents demonstrate financial activity and compliance with tax laws.
- Personal Tax Returns: Submit your personal tax returns, including income, franchise, property, or any other types of returns you’ve filed over the last seven years. This shows your financial history and adherence to tax regulations.
- Evidence of Other Funding Sources: If there are other sources of capital contributing to your investment, provide documentation that identifies and explains these sources.
- Judgments and Legal Actions: Include certified copies of any judgments or evidence of ongoing government civil or criminal actions, administrative proceedings, or private civil actions that involve monetary judgments against you, both within and outside the U.S., for the past 15 years.
- Trace Your Funds: Demonstrate the path of your funds from their source to the New Commercial Enterprise (NCE). This can be done with documents like:
- Wire Transfer Records: Provide records that show the movement of funds from their original source to your bank account.
- Bank Statements: Include statements that reveal where the funds originated and their journey to the NCE. This helps confirm the legitimacy of the source.
Section 8: Employment Creation Evidence
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Evidence that the entity’s board will create or preserve at least 10 full-time jobs over the next two years. The eligible employees are typically U.S. citizens, U.S. nationals, lawful permanent residents, or other immigrants authorized to work in the U.S. This definition excludes family members of foreign nationals and nonimmigrant aliens. Here’s how you can prove this:
- Comprehensive Business Plan: Provide a detailed business plan that outlines why and when you’ll hire at least ten qualifying employees. This plan should show how your investment will lead the job creating entity.
- Relevant Tax Records and Forms I-9 (if employees have already been hired)
- Relevant Tax Records: Include copies of tax records that prove the existence of the required number of employees.
- Forms I-9: Submit Form I-9s or similar employment documents for the qualifying employees.
- Regional Centers (if applicable): If you’re working with a regional center, provide evidence of a reasonable plan to indirectly create the necessary jobs through the business
- Troubled Businesses (if applicable)
- Business Existence: Demonstrate that the NCE has been in existence for at least two years.
- Financial Loss: Show that the NCE has incurred a net loss according to generally accepted accounting principles during a specific period before your priority date on Form I-526. This loss should be at least 20% of the troubled business’s net worth before the loss.
- Employee Maintenance: Prove that the NCE will maintain the same number of employees as it had before your investment for a minimum of two years.
Section 9: Proof of Management Involvement
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You need to show that you are actively involved in managing the New Commercial Enterprise. This can be proven by:
- Describing Your Role: Provide a statement that includes your job title and a detailed description of your responsibilities within the NCE.
- Corporate Officer or Board Member (if applicable): Provide evidence of your official role as a corporate officer or board member, such as corporate records or appointment letters.
- For Partnerships (if applicable): Show your direct involvement in day-to-day management or policy-making activities through documents or role descriptions.
Section 10: Regional Center Affiliated Petitions
When pursuing your EB-5 visa through a regional center, specific documentation is crucial. The regional center might also help you with other documentation. If the regional center has established a project in an already-designated TEA, for example, it can provide you with documentation supporting your investment destination’s status as a TEA, thereby relieving you of the burden of proving it on your own.
Here is what you need for Regional Center Affiliated Petitions:
- Form I-924 Approval: Include the Form I-924 approval notice from USCIS, designating the regional center linked to your petition.
- For regional center affiliated petitions seeking deference with previously approved project:
- Business Plan: Detailing the project’s objectives, strategies, and financial projections.
- Economic Analysis: Presenting the economic impact of the project, crucial for demonstrating job creation.
- Organizational and Transactional Documents: Outlining the legal structure, partnerships, and operational plans of the project.
In navigating the complex journey to obtain a U.S. green card through the EB-5 immigrant investor’s only program, seeking professional guidance from immigration services is not just a choice; it’s a strategic decision that can significantly impact your success.
While this guide has provided valuable insights, the importance of consulting an experienced immigration attorney cannot be overstated.
An immigration attorney brings expertise, experience, and a deep understanding of the ever-evolving immigration landscape. They can offer personalized guidance, help you make informed decisions, and ensure that your immigrant visa application package and business plan is meticulously prepared and optimized for success.
The EB-5 investment visa program allows someone who invests a minimum amount of money into a US commercial enterprise or regional center to obtain permanent residence (a “green card”) in the United States.
The investment must take one of two forms — (i) a direct investment into an enterprise and (ii) an indirect investment into an approved regional center. Each of these types of investments has its own requirements as well as its own advantages and drawbacks.
Direct Investment
Two types of direct investments are permissible:
Establishing a brand-new commercial enterprise: An investor can establish a brand-new enterprise, such as a corporation of a limited partnership. The enterprise itself must create at least 10 full-time jobs within “a reasonable time” (typically two years) after it is formed. These 10 employees must be formal W-2 employees of the new enterprise itself, not an affiliated entity.
The investor must also prove that he will be directly engaged in the management of the enterprise, not just a passive investor. The minimum investment is $1.8 million, unless the investment takes place in a TEA (“Targeted Employment Area” — a rural area or an area with high unemployment), in which case the minimum drops to only $900,000.
If the investor is investing between $900,000 and $1.8 million, he must prove that the capital will be invested in a TEA.
Investing in an existing commercial enterprise (established any time after November 29, 1990) and restructuring it into a “new commercial enterprise.” The enterprise will be accepted as “new” if there is at least a 40 percent increase in either the enterprise’s net worth or its number of employees.
If this is established, the 10 new full-time jobs can be jobs that are preserved rather than newly created — in other words, they can be old jobs that would otherwise have been lost.
Regional Center Investment
The US Citizenship and Immigration Services has approved a total of 783 regional centers throughout the United States to absorb EB-5 investments for the benefit of the local economy. Most of these centers are located in Targeted Employment Areas.
Most investors choose to invest indirectly into regional centers rather than investing directly in a new commercial enterprise. The same minimum investment amounts apply, and the regional center will disperse the investment capital to various enterprises.
Cutting Through Red Tape
The relaxed job-creation rules for regional center investments mean that the investor’s burden of proving that his investment will create 10 full-time jobs becomes much easier. A regional center investor does not have to prove that his investment will directly create 10 full-time jobs.
Instead, the 10-job requirement can be met by creating jobs indirectly in enterprises that are affiliated with the regional center. The regional center itself can help document this.
Unlike a direct investment, the investor does not have to prove that he has established a “new commercial enterprise” or its equivalent. Instead, he will act as a passive investor and will not make major decisions except through his voting rights as a shareholder.
Investments are relatively safe, but they typically offer a low return on investment. It is also easier to prove that your investment is located in a Targeted Employment Area, since the regional center has already established this with the USCS.
All in all, the paperwork is considerably simpler when you invest in a regional center rather than investing directly into a new commercial enterprise. Nevertheless, if you seek to invest in a more prosperous area with better economic prospects (not a TEA), your options will be more limited if you invest in a regional center.
Making Up Your Mind
As a general statement, investing in a new commercial enterprise is more suitable if your primary purpose in seeking EB-5 status is to earn money from your business, while investment in a regional center is more suitable if your primary purpose is to secure permanent residence in the United States for yourself and your family.
This is not always the case, however — speak with your immigration lawyer for a full treatment of this issue.
Introduction
Can a foreign investor purchase permanent residency in the United States? Well, not exactly, but the EB-5 US investment visa program is about as close as you can get to purchasing permanent residence. The EB-5 investors visa USA program offers permanent residence to foreign investors much faster than just about any other pathway, but it does require a substantial qualifying investment in a new or existing commercial enterprise (nonprofits don’t count).
How Does the EB-5 Visa Program Work?
The EB-5 investor visa USA is the only US investor visa that allows you to apply for permanent residence through investment in a new or existing US commercial enterprise. It requires immigrant investors to put up a substantial minimum investment, and it must result in a certain number of jobs created or preserved for the U.S. economy.
Please note that a quota system is in effect — no more than 10,000 EB-5 investor visa USA applications will be accepted in any given year, and foreign investors born in any particular country cannot be issued more than a collective total of 700 investment visas.
Conditional Permanent Residence
Once your initial application has been approved by the US Citizenship and Immigraton Services (USCIS), you will be eligible to apply for conditional permanent residence in the US. This conditional permanent residence is valid for only two years, but you can petition the USCIS to remove the condition after two years by proving certain facts, including the continuing validity of your investment. Once the condition is removed, you will be allowed to remain in the US permanently as a lawful permanent resident.
Your family can also receive lawful permanent residency through the same process.
How Much Does an EB-5 Visa Cost?
To qualify for an EB-5 visa, investors must invest a minimum of $1.8 million into a “High Employment Area” (HEA) commercial enterprise or a minimum of US $900,000 into a designated “Targeted Employment Area” (TEA) commercial enterprise. This new minimum was increased from the earlier minimums — $1 million for an HEA and $500,000 for a TEA. The new, higher minimums apply to applications filed on or after November 21, 2019.
An investor must also pay processing fees and legal fees, but these should be negligible compared to the total amount of the investment.
Who Can Apply for the EB-5 Visa?
EB-5 visas are available to investors as well as their spouses and unmarried children who are under 21 years of age. As an EB investor you must:
- Make the necessary investment into a commercial enterprise (which often means simply depositing the funds into escrow before your application is submitted); and
- Issue a realistic plan to create or preserve 10 permanent full-time jobs in the United States.
Please note that you cannot be inadmissible to the United States for independent reasons (unlawful presence in the US, certain criminal offenses, etc.).
How Long Does It Take for a Foreign Investor to Get a Green Card Through EB-5?
The speed of processing of the EB 5 visa is one of its most attractive features. The initial application is usually approved within 60 days of filing, and a conditional permanent residence visa is usually issued within six months of the initial filing date.
Keep in mind that if you were born in mainland Vietnam, India or mainland China (excluding Taiwan and Hong Kong), you might have to wait longer than other nationalities to receive an EB-5 investment visa, due to high demand from these countries and the limit of 700 EB-5 investment visas from any given country. If your spouse is immigrating with you but was not born in one of the foregoing countries, this delay will apply to neither you, your spouse or your children.
Obtaining Unconditional Permanent Residency
When you are first issued permanent residency, you will receive “conditional permanent residency”, which lasts for only two years. That might not seem to make sense — how can residency be “permanent” if it only lasts for two years? Well, it’s just a figure of speech. What’s really going on is that the US Citizenship and Immigration Services (USCIS) needs time to ascertain that your investment is legitimate and that it will produce the required number of jobs.
Before your two-year conditional permanent residency expires, you must apply to have the condition removed. If the condition is removed, you will finally have a “green card” — lawful permanent residency in the United States. To have your condition removed, you must prove to the USCIS that:
- The funds you used for your investment in a US commercial enterprise came from a legitimate source (legitimate real estate investment activities, for example).
- Your entire investment is at-risk. This means that you could lose it all if your business doesn’t work out.
- Your investment in a US commercial enterprise created at least 10 full-time jobs, either directly or indirectly.
The acceptance rate for petitions to remove the conditions on lawful permanent residency has increased from 62 percent in 2005 to well over 90 percent today. These figures include only applicants who were already granted conditional permanent residency — they do not include cases where a prospective immigrant’s petition for conditional permanent residency was denied.
Application Process
Following is a general sequential overview of the entire EB-5 application process:
Step 1: Identify an appropriate investment
Not every investment will qualify you for an EB-5 visa — EB-5 investments must meet certain criteria. There are three ways that you might go about investing your capital — (i) establishing a new commercial enterprise (ii) purchasing an existing business or (iii) investing in an EB-5 regional center project. You may qualify for the $900,000 minimum investment or the $1.8 million minimum investment, depending on the area in which the project is located.
- Establishing a new commercial enterprise will mean making a direct investment by forming your own new commercial enterprise, hiring employees and obtaining any licenses or permits required by any government with jurisdiction over your business.
- Purchasing an existing business will mean purchasing the shares of an existing commercial enterprise and assuming its liabilities. If the business qualifies as a distressed business that would otherwise go bankrupt or lay off its employees, you may be eligible to meet the job creation requirement by preserving jobs at the acquired company that, but for your purchase, would have been lost.
- Investing in a regional center project means investing in one of the USCIS’s 783 approved regional center programs. By taking this route, you will be acting as a passive investor (you will not be involved in the day-to-day operation of the business or its major decisions). Investment risk for a regional center is low, but so is return on investment.
As a regional center investor, you will meet the EB-5 job creation requirement by creating indirect jobs, based on the extent to which your investment helped revitalize the economy of a particular geographic area. Contrast this with the direct jobs you would create if you established a new enterprise and hired workers.The regional center option is ideal for investors who wish to take advantage of the EB-5 program but have no experience managing a business.
“High Employment Areas” (HEAs) vs. “Targeted Employment Areas” (TEAs)
A Targeted Employment Area (TEA), for which a $900,000 minimum is required, is an area of high unemployment (150 percent of the national average or more) or a rural area, that has been designated as a TEA by the USCIS under the EB-5 program.
Formerly, states were given the authority to designate TEAs, but now that authority rests solely with the USCIS. This revision makes it harder to designate urban areas as TEAs. According to the USCIS, this was done to keep states from manipulating the EB-5 program by designating economically healthy areas as TEAs.
A High Employment Area (HEA) for which a $1.8 million investment is required, means a part of a metropolitan statistical area that is not a TEA, that enjoys an unemployment rate that is significantly below the national average.
Step 2: Invest the capital
Cash isn’t the only type of capital you can invest into an existing or new commercial enterprise. Acceptable investments also include equipment, inventory, tangible personal property and cash equivalents. Capital is to be denominated in US dollars and assessed at fair market value. It is acceptable to place your investment into escrow during the visa application process, and even promissory notes are acceptable under limited circumstances.
Special Case–Debt Guarantees: Debt guarantees in favor of the existing or new commercial enterprise that forms your investment project that are supported by assets you own can qualify as capital investment. In order for a debt guarantee to qualify, you must be personally and primarily liable for the debt, and the investment project’s own assets must not be used to secure any part of the debt.
You must establish that you are the legal owner of the capital that you contribute, and you must prove that none of this capital was obtained through unlawful means.
Step 3: File Form I-526
Once you have identified the investment and contributed the capital (at least to the extent of placing it into escrow), it will be time to file Form I-526, Immigration Petition by Alien Investor, with the USCIS. Some of the supporting documents you will need include:
- Evidence that the investment will meet job creation requirements (10 new full-time jobs in a new commercial enterprise, for example);
- A comprehensive business plan that complies with Matter of Ho requirements; and
- Evidence of the source of the capital (to prove that the source was legal);
The waiting time for an approval from the USCIS is typically four to six months.
Step 4: Answer Requests for Additional Evidence (RFEs)
The USCIS might send you a Request for Evidence (RFE) after you send your petition but before it has either approved or rejected it, seeking more information with which to make a decision on your petition. If you receive one, or even if you receive more than one, don’t be alarmed — RFEs are a normal part of the application process, especially in the case of EB-5 investment visa applications. It is important, however, that you respond promptly and thoroughly.
Step 5: Apply for Conditional Permanent Residence
Once your Form I-526 has been approved, you will be eligible to apply for conditional permanent residence — basically, a two-year green card that can be converted into a permanent green card after two years.
If you are in the US when your Form I-526 is approved, you will apply for conditional permanent residence by filing Form I-485, Application to Register Permanent Residence or Adjust Status with the USCIS.
If you are located abroad, you will need to apply for an EB-5 investment visa at the US embassy or consulate nearest you. Your visa will be stamped onto your passport, allowing you to enter the United States.
Step 6: File Form I-829 Seeking Unconditional Permanent Residence
You can file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, no earlier than 90 days prior to the end of your two-year conditional green card status. File it as early as you can — if you delay beyond the expiry of your conditional permanent resident status, your ability to ever adjust to unconditional permanent resident could be jeopardized.
Even if you file the first day you are eligible, the USCIS probably will not have finished adjudicating your petition by the time your two-year conditional residency expires. That’s OK, however, because your stay in the US will be automatically extended for however long it takes the USCIS to adjudicate your petition one way or the other.
Required Documentation
Your application package should include the following documents:
- Completed and signed Form I-829.
- Photocopy of all conditional permanent resident cards for you and your family members (front and back).
- Federal tax returns and other documentation proving that a new commercial enterprise was established (if your investment in the EB-5 program constituted a new commercial enterprise).
- Proof that the investment was actually made, in the form of audited financial statements, bank statements and other similar evidence.
- Proof that the commercial enterprise continued throughout the entire two-year conditional permanent resident period — invoices, bank statements, contracts, business licenses, tax returns and quarterly tax statements, for example.
- Evidence that your investment complied with the job-creation requirement — payroll records and tax documents, for example.
- Evidence that your company actually complied with the business plan that you submitted when you applied for the EB-5 program.
- If you or any member of your family has a criminal record, you must submit arrest records, sentencing records, probation or parole records, and any other documents relating to the criminal record.
- Other documents as necessary and appropriate.
- Include the appropriate fees: The filing fee for Form I-829 is $3,750, and you must also pay a separate $85 biometrics fee for yourself and for each immigrating family member who is between 14 and 79 years of age.
The application package should be sent to a designated USCIS Service Center in Texas. The current processing time averages between 22 and 45 months after the application date.
Step 7: Attend the Biometrics Appointment and the Visa Interview
In addition to submitting your application package, you and your immigrating family members must attend a USCIS biometrics appointment where your fingerprints, signatures and photographs are taken. This can be done at a USCIS office if you are in the United States, or at a US embassy or consulate if you are located outside of the United States. You might also be required to attend an in-person interview after your I-829 petition has been processed.
Step 8: Obtain Your Green Card
If your petition is successful, you and your family will all receive 10-year green cards, most likely mailed to your home address. You can renew your green card an indefinite number of times (for your entire lifetime). Your family members will be able to renew their permanent resident cards indefinitely even if you predecease them.
The Future of the EB-5 Investment Visa
The EB-5 investment visa USA program was created in 1992 to generate jobs for US workers and to bring money into the US economy. It has never been made permanent — it is reauthorized by Congress every few years. As such, there is no absolute guarantee that it will turn out to be a permanent feature of the US uimmigration landscape.
A number of problems have been identified with the EB-5 investor visa program, including:
- Critics charge that some investors have been able to fool the USCIS into believing that they obtained their investment funds legally, when in fact these funds were obtained through unlawful means and then “laundered” to make them appear acceptable to the USCIS.
- A number of schemes have arisen that appear to be designed to defraud investors.
- The minimum investment was too low because the amount had not been modified to account for inflation in nearly 20 years (this was rectified in 2019 with a major upward adjustment of the minimum investment amount, as detailed above).
Due to the 2019 reforms — in particular the increase in the minimum investment amount and the regulatory reforms making it more difficult to invest in areas with healthy economies — investor interest in the EB-5 investment visa USA program appears to be waning.
Many observers expect the number of EB-5 program visas to shrink while the dollar value of each investment project increases. These two trends may cancel each other out, leading to a stable investment amount with a smaller number of investors.
The same observers expect fewer investors from China and an increase in investment from Latin America. Ultimately, however, future trends are difficult to predict. It is unlikely, however, that the EB-5 program will disappear.