USCIS administers the EB-5 Immigrant Investor Program. It was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a program first enacted as a pilot in 1992 and regularly reauthorized since then, investors may also qualify for EB-5 classification by investing through regional centers designated by USCIS based on proposals for promoting economic growth.
On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act as part of the Consolidated Appropriations Act, 2022 (Public Law 117-103), which created new requirements for the EB-5 immigrant visa category and the Regional Center Program. Immigrant visas are authorized under the Regional Center Program through Sep. 30, 2027. The EB-5 Reform and Integrity Act created new EB-5 immigrant visa set-asides for qualified immigrant investors. Each fiscal year, a certain percentage of EB-5 immigrant visas are available to qualified immigrants who invest in specific areas:
Any of these set-aside visas that go unused are held in the same set-aside category for one more fiscal year. After the second fiscal year, any remaining unused immigrant visas in these set-aside categories are released to the unreserved EB-5 immigrant visa numbers during the third fiscal year.
|Area invested in||EB-5 Immigrant Visas Set-Aside Each Fiscal Year|
|High Unemployment Area||10%|
All EB-5 Green Card Investors must invest in a new commercial enterprise that was established:
– After Nov. 29, 1990; or
– On or before Nov. 29, 1990, that was:
A new commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business, including:
This definition does not include noncommercial activity, such as owning and operating a personal residence.
An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees.
– For a new commercial enterprise not located within a regional center? The new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.
– For a new commercial enterprise located within a regional center? The new commercial enterprise can directly or indirectly create the full-time positions. Up to 90% of the job creation requirement for regional center investors may be met using indirect jobs.
In the case of a troubled business, the EB-5 investor may rely on job maintenance.
A troubled business is one that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period before the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20% of the troubled business’s net worth before the loss. When determining whether the troubled business has been in existence for two years, USCIS will consider successors in interest to the troubled business when evaluating whether they have been in existence for the same period of time as the business they succeeded.
A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States. Which includes a conditional resident, temporary resident, asylee, refugee, or a person residing in the United States under suspension of deportation.
This definition does not include:
Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the regional center program, full-time employment also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.
A job-sharing arrangement where two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions even if, when combined, the positions meet the hourly requirement per week.
Jobs that are intermittent, temporary, seasonal, or transient do not qualify as permanent full-time jobs. However, jobs that are expected to last at least two years are generally not considered intermittent, temporary, seasonal, or transient.
Capital means cash and all real, personal, or mixed tangible assets owned and controlled by the immigrant investor. All capital will be valued at fair-market value in U.S. dollars.
The definition of capital does not include:
Note: Immigrant investors must establish that they are the legal owner of the capital invested. Capital can include their promise to pay (a promissory note) in certain circumstances.
The minimum investment amounts by filing date and investment location are:
|Petition Filing Date||Minimum Investment Amount||Targeted Employment Area Investment Amount||High-Employment Area Investment Amount|
|On or After 3/15/2022||$1,050,000||$800,000 (includes infrastructure projects)||N/A|
Future adjustments will be tied to inflation using the change in the Consumer Price Index for All Urban Consumers (CPI-U) from March 15, 2022, to the date of adjustment. These adjustments will occur every five years, with the first such adjustment effective for petitions filed on or after Jan. 1, 2027.
A targeted employment area can be, at the time of investment, either:
A rural area is any area other than an area:
A high-unemployment area consists of the census tract or contiguous census tracts in which the new commercial enterprise is principally doing business which may include any or all directly adjacent census tracts, if the weighted average unemployment for the specified area based on the labor force employment measure for each tract is 150% of the national unemployment average.
Regional center investors may choose to invest in a new commercial enterprise engaged in an infrastructure project. An infrastructure project is a capital investment project in a filed or approved business plan. Which is administered by a governmental entity (such as a Federal, State, or local agency or authority). It is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment under the regional center program from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project. After the second fiscal year, any remaining unused immigrant visas in these set-aside categories are released to the unreserved EB-5 immigrant visa numbers during the third fiscal year.
Based on the USCIS official website, on 01/04/2023, USCIS published Form I-956K, Registration for Direct and Third-Party Promoters. The EB-5 Reform and Integrity Act of 2022 added the requirement for direct and third-party promoters to register with USCIS.
Each person acting as a direct or third-party promoter (including migration agents) of the following must complete Form I-956K:
There is no filing fee for Form I-956K.
On 10/11/2022, USCIS also published their updated policy guidance (PDF, 342.87 KB) in the USCIS Policy Manual based on the vacatur of the EB-5 Modernization Rule and the EB-5 Reform and Integrity Act of 2022.
Some policy highlights include:
Based on the USCIS official pages, there are 4 main steps to get the EB-5 Visa:
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.
After we approve your Form I-526 or Form I-526E petition, either:
From a consulting website about the EB-5 visa called EB5 Bricks, the time to get the EB-5 visa is as follows:
An I-526 application is needed in order to be able to move forward and get a conditional green card from the USCIS. The amount of time it takes for this petition to be processed varies. And it is heavily dependent on the complexity of your case and how busy the service center is that is processing your petition. The waiting period is about 31 months to 50 months (currently). But it could take much shorter or much longer.
DS-260 application allows an investor and their dependents to commence their residency on the Conditional Green Card. U.S. investor visa applicants who are not already in the United States upon approval of their I-526 form have to file a DS-260 application. This is to obtain the conditional permanent residency status during the visa process. It can be filed at a U.S. consulate or embassy abroad. It requires an interview at the U.S. consulate or embassy.
The conditional permanent residency status is given to applicants after their DS-260 is approved. Depending upon your consulate, once NVC/consulate receives all required documents, usually NVC/Consulate will schedule an interview within 60 to 90 days, if the priority date is current. An immigration attorney can also help file your DS-260 application. If they are already in the United States on a different Immigrant visa then they can apply for the form I-485 (Adjustment of Status).
The I-829 application is the final step of the EB-5 visa process for the Immigrant Investors to become lawful permanent residents of the United States. The I-829 petition includes evidence that the immigrant investor successfully met all the United States Citizenship and Immigration Services (USCIS). Once the I-829 is approved, the investor’s conditional residency restriction is removed. So that the investor, their spouse, and their unmarried children under the age of 21 can live in the United States permanently. This can currently take from 22 months to 48.5 months.
The EB-5 investor can file the I-829 petition with USCIS starting 90 days before the end of the two-year conditional permanent status period. The applicant’s conditional residency is extended while the I-829 is in process. The I-829 application must be filed within 21 to 24 months of the investor’s two-year conditional residency period. Otherwise the ability to obtain a permanent residency card can be jeopardized.
The information below comes from the EB-5 diligence website
A direct investment is made directly into the job-creating business. In the past, most direct investments were made into owner-operated businesses, like franchises. But since the expiry of the Regional Center Program after June 30, 2021, a new kind of direct investment model has emerged: investment into companies with proven concepts that are looking to expand with non-dilutive EB-5 capital.
A direct investment in a company is responsible for creating 10 full-time jobs. If they are operating their own business, the EB-5 applicant and family members do not count toward this quota. And direct investors are limited to counting only direct or operational jobs created by the business that received the investment capital.
The nature and structure of direct investments offer many advantages not seen in regional center investments. First, as direct investing is done through the permanent EB-5 investor program, it is never subject to potential expiration dates. This offers greater assurances of long-term stability than the Regional Center Program, which had always relied on short-term extensions – and which has remained expired since July 1, 2021.
For investors, direct investments can have potentially many advantages:
For the U.S. economy, direct investments also have many benefits:
According to USCIS, “An EB-5 regional center is an economic unit, public or private, in the United States that is involved with promoting economic growth.” Regional centers sponsor job-creating projects, and pool together the capital investment of multiple investors for these projects.
The regional center investment structure is far different and more complex than the direct investment structure: the investment is made into the EB-5 fund, otherwise known as the new commercial enterprise (NCE), an entity solely created to raise and lend money. The EB-5 fund then restructures the investment capital as a loan to the business that creates the qualifying jobs, the job-creating entity (JCE). The different entities may or may be under common control.
Regional center investors can count not only direct jobs, but indirect jobs, those created by supplier industries, and induced jobs, employment in the local community that is created by spending of investment-project workers in the area. It should be noted that indirect and induced jobs are not actually counted, but instead projected by economic modelling.
Easier job creation and robust marketing by regional centers led to about 95% of all EB-5 investments having been made in the past through the Regional Center Program.
Regional center investments can count indirect and induced jobs, determined by economic modeling, making it potentially easier to satisfy the job-creation requirement. If the real estate development project spent its budget, the jobs were virtually assured of being credited, regardless of whether or not the project was successful.
Check out our EB-5 direct services if you’d like to invest in a franchise for your EB-5 visa!