EB-5 Explained: What Is the EB-5 Visa Program and Who Is Eligible?

What is the EB-5 Visa Program and Who Is Eligible?‍

The EB-5 visa program, established in 1990, provides a pathway for foreign investors and their families to obtain a green card (lawful permanent residence) in the U.S. 

The program requires that applicants invest in a U.S. business and create or preserve at least 10 full-time jobs for U.S. workers within a specified timeframe. By contributing foreign capital, investors help stimulate the U.S. economy and support job creation.

This guide covers the eligibility requirements, investment amounts, the application process, and benefits of the EB-5 visa.

Who is Eligible for the EB-5 Visa?

To qualify for the EB-5 visa, applicants must meet the following requirements:

• Investment: The investor must invest the required amount of capital in a new commercial enterprise in the U.S. This investment must be at risk with no guarantees of return.
• Job Creation: The investment must create or preserve at least 10 full-time jobs for qualifying U.S. workers within a specific period.
• Capital Requirement: The capital must be irrevocably committed to a lawful commercial enterprise. The investor, along with their spouse and unmarried children under 21, can qualify for permanent residency through this program.

Investment Options:
There are two primary ways to make an investment under the EB-5 program:

1. Direct Investment: Investors can directly invest in a new or existing business where they will actively create jobs.
2. Regional Center Investment: This option allows investors to pool their funds with others in USCIS-approved regional centers, enabling the counting of indirect and induced job creation toward the job creation requirement. About 95% of EB-5 investments are made through regional centers.

How Much Money Do I Need to Invest for an EB-5 Visa?

The minimum investment amounts for the EB-5 visa are set by law and have been updated periodically. The EB-5 Reform and Integrity Act of 2022 codified these amounts and clarified the definitions of Targeted Employment Areas (TEAs) to improve program integrity. 

Here’s the breakdown:

• $1,050,000 for investments in a non-targeted employment area.
• $800,000 for investments in a Targeted Employment Area (TEA), which is a rural area or a region with high unemployment (at least 150% of the national average).

Understanding "At Risk" Capital: The investment must be at risk, meaning there are no guarantees of return, and the capital must be actively employed in the business. The funds can include cash, equipment, inventory, or other tangible assets.

Pro Tip: Check the current TEA designations for your project, as these can vary by state and change over time. Always ensure that the location you choose qualifies for the reduced investment amount.

What Types of Businesses Qualify for EB-5 Investment?

To qualify for the EB-5 visa, the business in which the investor invests must be a new commercial enterprise. Here’s a breakdown of eligible businesses:

1. New Commercial Enterprises: These must be established after November 29, 1990.
2. Existing Businesses: These can be eligible if they are expanded by at least 40% in net worth or number of employees.
3. Troubled Businesses: Businesses that have been in operation for at least two years and have incurred a net loss of at least 20% of their net worth are eligible for EB-5 investment.

Common EB-5 Projects:

• Real estate developments: Hotels, resorts, commercial buildings, and retail centers.
• Infrastructure projects: Highways, bridges, or other large-scale projects.
• Manufacturing companies: Especially those creating jobs in economically depressed areas.
• Service businesses: From healthcare to consulting firms.

Regional Centers: When investing through a USCIS-approved regional center, investors can include indirect and induced job creation (jobs created outside the direct scope of the business) to meet the 10-job requirement.

Do I Need to Have Invested the Money Before Applying?

Yes, investors must demonstrate that their capital is irrevocably committed and "at risk" when filing Form I-526 (Immigrant Petition by Alien Entrepreneur). The funds must be actively invested or in the process of investment at the time of filing. Funds held in escrow may be acceptable, but only if the sole contingency is approval of the visa.

Documents Required:

• Source of Funds: Investors must provide evidence that the capital used for investment comes from a lawful source. This can include bank statements, wire transfers, purchase agreements, and business formation documents.
• Investment Evidence: Documentation of the funds being irrevocably committed to the business, such as purchase agreements, leases, or investment contracts.

Pro Tip: USCIS rigorously reviews the source of funds to prevent fraud. Ensure that all documents are complete and traceable.

How Long Does the EB-5 Visa Process Take?

Processing Times for EB-5 Visa Applications: The processing times for the EB-5 visa can vary based on a variety of factors. Here’s a general timeline:

• Form I-526 Processing: Typically takes 18–24 months, but this can vary depending on the USCIS workload and the complexity of your petition.
• Consular Processing: If applying from outside the U.S., immigrant visa issuance takes an additional 3–6 months after I-526 approval.
  
• Adjustment of Status (Form I-485): If you are in the U.S., this step can take 8–14 months.

Applicants from countries with high demand, such as China, may face visa retrogression, which can add delays between I-526 approval and visa issuance.

Pro Tip: The entire process often takes 2–3 years or more. Be prepared for potential delays, especially if you are applying through a regional center or from a high-demand country.

What Happens After I Invest and File Form I-526?

Once USCIS approves your Form I-526, the next steps depend on your location:

1. Outside the U.S.: You must apply for an immigrant visa through consular processing by submitting Form DS-260 and attending an interview at a U.S. embassy or consulate.
2. Inside the U.S.: You may file Form I-485 to adjust your status to conditional permanent resident.

Upon approval, you and your eligible family members will receive conditional green cards valid for two years.

What Is the Conditional Green Card and How Do I Remove Conditions?

The EB-5 green card is conditional for two years. To remove the conditions and obtain permanent resident status, you must file Form I-829 (Petition by Entrepreneur to Remove Conditions) within 90 days of the two-year anniversary of your green card issuance.

Requirements for Form I-829:

• Proof that the investment was sustained throughout the two years.
• Evidence that the investment created or preserved at least 10 full-time jobs for U.S. workers.

Once Form I-829 is approved, the conditions are removed, and you and your family become lawful permanent residents.

Can My Family Accompany Me on the EB-5 Visa?

Yes, your spouse and unmarried children under 21 are eligible as derivative beneficiaries under the EB-5 program. They will receive the same conditional and permanent resident status as you.

Family Benefits:

• Your family members can live, work, and study freely in the U.S. during and after the EB-5 process.

What Are the Chances of Approval for EB-5 Petitions?

Approval rates vary based on petition quality and evidence:

• Most common reason for denial: Insufficient evidence of the source of funds.
• Regional Center Projects: Tend to have higher approval rates due to pooled resources and professional management.
• Historically, Form I-526 approval rates have ranged from 70% to 85%.

Pro Tip: Consulting with an experienced immigration attorney can significantly improve your chances of approval.

Does Owning Property Qualify for EB-5?

No, simply owning property does not qualify as an EB-5 investment. The EB-5 program requires active business operations that create jobs. However, commercial real estate projects that involve construction and ongoing operations may qualify if they meet the job creation requirement.

What Questions Should I Expect at the EB-5 Visa Interview?

Typical Consular Interview Questions:

• What is the source of your investment funds?
• What is your role in the business?
• How will your investment create or preserve 10 jobs?
• Can you explain the business plan and financial projections?
• Do you understand the risks involved?

Be prepared to provide original documents and answer these questions clearly and honestly.

What If My EB-5 Application Is Denied?

If your application is denied, you will receive a notice explaining the reasons. Common reasons include insufficient investment, failure to prove lawful source of funds, or failure to demonstrate job creation. 

You may respond to a Notice of Intent to Deny (NOID) with additional evidence or reapply with corrected documentation.