EB5 Visa: A Comprehensive Guide to U.S. Investment Immigration

EB-5 Green Card

The EB-5 visa is a popular option for foreign investors who are looking to live and work in the United States. This program was created by the U.S. government to encourage foreign investment in the country and to create jobs for American workers. In exchange for their investment, foreign investors can receive a green card, which gives them permanent residency in the United States.

The EB-5 visa is designed for individuals who are willing to invest a minimum of $1 million in a U.S. business, or $500,000 in a targeted employment area (TEA). A TEA is defined as a rural area or one that has experienced high unemployment. The investment must create at least 10 full-time jobs for U.S. workers within two years.

The  EB-5 visa allows eligible investors to become permanent residents of the United States. They can become green card holders by investing substantial capital to finance a U.S. business. There are numerous EB-5 visa requirements we will review in depth.

On March 15, President Biden signed an EB-5 Reform and Integrity Act of 2022 that includes an EB-5 Regional Immigrant Investor Center Program authorization and several effective implementation dates for the program. This program will be effective until September 30, 2027. 

The required investment amount is in the range of US$800,000 to US$1,050,000.

EB-5 Visa Requirements Enforced by United States Citizenship and Immigration Services (USCIS) 

The USCIS manages the EB-5 Immigrant Investor Program. EB-5 visas, also known as Fifth Preference Work Visas, are Immigrant visas. This means that EB-5 visa applicants are granted a green card. The green card allows them to live and work in the United States permanently. EB-5 Green Card applicants can also bring their spouses and unmarried children under the age of 21. 

The EB-5 program is very popular because it provides a direct path to permanent residency and U.S. citizenship. 

Originally, this visa was created by Congress in 1990 to encourage foreign investment in the U.S., create jobs, and promote the growth of the U.S. economy. 

It is a common misconception that this program means buying a green card, but in fact, it does not. Applicants must follow a rigorous process. In addition, there is a limit of only 10,000 visas available each year for these cases. 

U.S. Citizenship and Immigration Services (USCIS) is responsible for administering the Immigrant Investor Program. 

What is Needed to Apply for the EB-5 Visa

To apply for the EB-5 visa, foreign investors must first find a qualifying investment opportunity. This can be a new business or an existing one that is looking to expand. The investment must be made in a legal and operational enterprise, and the investor must be actively involved in the management of the business.

Once the investment has been made, the foreign investor must file a petition with U.S. Citizenship and Immigration Services (USCIS). This petition must include evidence of the investment and proof that the investment will create jobs for U.S. workers. If the petition is approved, the investor will receive a conditional green card, which is valid for two years.

During the two-year period, the foreign investor must prove that the investment has been successful and that the required jobs have been created. If the conditions of the EB-5 visa are met, the investor’s green card will become permanent. With a permanent green card, the investor can live and work in the United States permanently and can apply for U.S. citizenship after five years.

All EB-5 Visa Investors Must Invest in a New Business Enterprise That Has been Established: 

– After November 29, 1990, or 

– On or before November 29, 1990, and which: 

• Has been purchased and the existing type of business is restructured or reorganized. In such a way as to result in a new business enterprise; or 
•  Has expanded through investment. So that there is at least a 40% increase in net worth or a number of employees. 

A business enterprise is any for-profit activity aimed at the ongoing conduct of lawful business. Including, but not limited to: 

– Sole proprietorship; 

– Partnership (partnership) whether limited or general; 

– Parent company; 

– Business alliance (joint venture); 

– Corporation; 

– Business trust; or 

– Other business entities, whether public or private. 

This definition includes a business enterprise consisting of a parent company and all of its wholly-owned subsidiaries. Provided that every subsidiary is carrying on a business for profit. 

This definition does not include non-business activities such as owning and operating a personal residence. 

Who Can Apply for an EB-5 Visa? 

Any foreign national may apply for an EB.5 Green Card through the investor program if he or she can demonstrate certain conditions. 

If the foreign investor is successful in obtaining the EB-5 visa, he/she has 180 days to move to the United States. With his or her family members included in the application. 

Once in the U.S. he/she will be able to file his/her petition for a conditional permanent resident card. And 90 days before the second anniversary of the residency, you can then apply to remove the green card conditions, to become a permanent legal resident. 

EB-5 investors will also be eligible to become U.S. citizens under immigration law. 

The EB-5 visa program has been successful in attracting foreign investment to the United States and has created thousands of jobs for American workers. However, it is important for foreign investors to carefully consider the risks and benefits of the program before making an investment. A qualified immigration attorney can provide guidance and assist with the EB-5 visa application process.

EB-5 Green Card Requirements (2023)

To apply for an EB-5 visa, foreign investors must follow some strict rules. They will have to invest at least $800,000 in a U.S. business that they intend to run once they are granted residency status. In addition, 10 full-time, two-year investment jobs are required. And all approved projects should have been vetted by regional centers that ensure quality management practices across the board so that nothing is lost on this path ahead. 

How to Obtain an EB-5 Visa 

Applicants for the EB-5 visa must follow these four basic steps to apply for the visa. 

The first step is to find your investment in the United States. This can be done by searching for businesses near your place of residence. Or through other means of research such as immigration websites and guides available online. Next, it is necessary for investors to put up money as a guarantee so that they have an incentive. Not only because this will help their chances later on. But also because if there is any claim filed against them after the application, at least a part would still belong to someone else (the bank). Finally, after going through all those exhausting processes, we get our final result: conditional permanent residency! 

Third, applicants must obtain their conditional permanent residency. This allows them to move to the United States to oversee their investment for two years. Applicants are granted conditional permanent residency for two years. This is after their I-526 application is approved. If the investor is already in the United States by virtue of nonimmigrant status, or the DS-230 application, if the investor is outside the United States. Finally, applicants must prove that they successfully meet the requirements of the EB-5 program by completing the I-829 application after those two years. EB-5 investors are granted unconditional permanent residence only after the I-829 application has been approved. 

The EB-5 visa application process consists of several steps, including the following:

• Choose a qualifying commercial enterprise: The first step in obtaining an EB-5 visa is to choose a qualifying commercial enterprise. This can be a new commercial enterprise that was established after Nov. 29, 1990, or an existing business that has been reorganized or expanded to meet the requirements of the EB-5 program.
• Invest the required amount of capital: The next step is to invest the required amount of capital into the chosen commercial enterprise. The minimum investment amount is $1.05 million, or $800,000 if the investment is made in a targeted employment area (TEA). The investment must be at-risk and actively managed by the investor.
• File Form I-526: After the investment has been made, the next step is to file Form I-526, Immigrant Petition by Alien Entrepreneur, with the U.S. Citizenship and Immigration Services (USCIS). This form is used to demonstrate that the investment meets the requirements of the EB-5 program, including the creation of at least 10 full-time jobs for U.S. workers.
• Obtain conditional permanent residency: If Form I-526 is approved, the next step is to obtain conditional permanent residency. This is typically done by filing Form I-485, Application to Register Permanent Residence or Adjust Status, or by consular processing if the investor is outside the U.S.
• Remove conditions on permanent residency: The final step in the EB-5 visa process is to remove the conditions on permanent residency. This is done by filing Form I-829, Petition by Entrepreneur to Remove Conditions, with USCIS within 90 days before the second anniversary of the grant of conditional permanent residency. The form must demonstrate that the commercial enterprise has been established, that the required investment has been made, and that at least 10 full-time jobs have been created for U.S. workers.

Exceptions and limitations for EB-5:

• Annual quotas: There is an annual quota of 10,000 EB-5 visas available each year, with a set number reserved for investments in targeted employment areas (TEAs). This means that not all applicants will be able to obtain an EB-5 visa each year.
• Job creation requirement: The EB-5 visa requires the creation of at least 10 full-time jobs for U.S. workers within two years of the grant of conditional permanent residency. This requirement can be challenging for some investors, especially for those who are investing in smaller or start-up businesses.
• Investment amount: The minimum investment amount for the EB-5 visa is $1.05 million (or $800,000 in targeted employment areas), which may be a barrier for some investors.
• Source of funds: The EB-5 visa requires that the investment capital be obtained from lawful sources. This means that the funds must be derived from legitimate, verifiable sources and must not be obtained through illegal or unethical means.
• Due diligence: The EB-5 visa application process includes extensive due diligence, including background checks and financial assessments, to ensure that the investment meets the requirements of the program and that the investor is a bona fide entrepreneur.
• Regional center investment: The EB-5 visa allows for investment through regional centers, which are designated entities that pool capital from multiple investors to finance commercial enterprises. However, the regional center investment carries additional risks, including the possibility of fraud or mismanagement, and it is important for investors to carefully evaluate the regional center and its projects before investing.

U.S. Visas and Residency 

Immigrants who successfully complete the EB-5 visa program through the approval of the I-829 application become lawful permanent residents of the United States. Permanent residents receive a green card that allows them to live and work in the United States permanently. Thus, Permanent residents may live and work anywhere they want in the United States. Permanent residents may travel without the need for a visa and may work in the United States without the need to be sponsored by a U.S. employer. Permanent residency may also be granted to spouses and unmarried children under the age of 21 of EB-5 investors. 

United States Citizenship 

EB-5 investors have the opportunity to become U.S. citizens once they have completed the EB-5 program process. To be eligible to become U.S. citizens, EB-5 visa holders must first be permanent residents for at least five years. At this point, EB-5 visa holders can undergo the naturalization process which allows them to become U.S. citizens. U.S. citizens enjoy more rights than permanent residents. Citizens are allowed the right to vote and to participate in federal, state, and local public elections. Sponsoring foreign relatives is also much easier for U.S. citizens. Citizens are also eligible for certain state benefit programs 

Job Creation Requirements 

An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time jobs for at least 10 qualified employees. 

– In the case of a new commercial enterprise not located in a regional center, the new commercial enterprise must directly create the full-time jobs that will be counted. This means that the new business enterprise (or wholly-owned subsidiaries) must be the employer of the qualified employees. 

– In the case of a new business enterprise that is located in a regional center, the new business enterprise may directly or indirectly create full-time jobs. 

o “Direct jobs” are those jobs that demonstrate an employer-employee relationship between the new commercial enterprise and the persons it employs. 

o “Indirect jobs” are those jobs that are outside the new commercial enterprise but were created as a result of the new commercial enterprise. 

– In the case of troubled enterprises, the EB-5 investor may rely on the preservation of jobs. 

o The investor must demonstrate that the number of existing employees is or will be preserved at no less than the pre-investment level for a period of two years. 

A Troubled Enterprise: 

An enterprise that has been in existence for at least two years and has incurred net losses during the 12- or 24-month period preceding the priority date shown on the foreign investor’s Form I-526. The losses for this period must be at least 20 percent of the net worth of the business before the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the business will be considered to have been in business for the same period of time as the business to which they are successors. 

A Qualified Employee is: 

A U.S. citizen, permanent resident, or other immigrant authorized to work in the United States. The person may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include an immigrant investor, his or her spouse, sons or daughters, or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States. 

Full-Time Employment Means That: 

employment of a qualified employee by the new commercial enterprise in a position requiring a minimum of 35 hours of work per week.  In the case of the Regional Center Pilot Program, “full-time employment” also means employment of a qualified employee in a position that has been indirectly created and requires a minimum of 35 hours of work per week 

An Employment Sharing Agreement: 

Is one in which two or more qualified employees share a full-time position that will count as full-time employment provided the required weekly hours are completed. This definition does not include combinations of part-time or full-time equivalent positions if even when combined, these positions comply with the hours per week required. 

Jobs That: 

Are intermittent, temporary, seasonal, or transient in nature and do not qualify as full-time jobs. However, jobs that are expected to last at least two years are generally not considered intermittent, temporary, seasonal, or transient in nature. 

How Many EB-5 Visas Are Issued Each Year? 

The U.S. Citizenship and Immigration Services sets aside 10,000 EB-5 visas for investors every fiscal year. There was a drastic growth in the number of participants in the EB-5 program in 2011. There were more than 3,000 investors applying through the program. Approximately 3,500 EB-5 visas were extended in the fiscal year 2011 and marking an 80% increase over 2010. This growth can be attributed to increased confidence in the program due to USCIS’ transparency of the program, as well as to the efficiencies in the application process, and the growth in the number of Regional Centers established throughout the United States. 

Our direct EB-5 clients are able to connect to our accumulated franchise network of over 100 EB-5 eligible franchises to drive their business search and analysis. 

We have vetted operators. Generally, the franchisor itself can support the day-to-day operations of the business, while the EB-5 investor oversees the financial and strategic direction of the business. This is vital for those investors who cannot reside in the United States on another type of visa (such as the E-2 visa) while the EB-5 visa is being awarded. 

In Summary 

In conclusion, the EB-5 visa is a valuable option for foreign investors who are looking to live and work in the United States. The program provides a path to a green card and permanent residency in the country. With careful planning and the right investment opportunity, foreign investors can achieve their goal of living and working in the United States.

* The Content of This Web Site Is for Informational And General Information Only. Please Consult a Licensed Immigration Attorney for Advice on Your Individual Situation. 

Pros 

• There are many types of businesses and investments that qualify for this type of visa. 
• The Green Card does not expire, and minors do not lose it when they turn 21. 
• Allows you to live anywhere in the U.S. and work for any company. 
• Can change status from another visa category allowing work/travel (in about 6 months)

Cons 

• High initial investment. 
• Job creation requirements must be met within two years. 
• Lengthy processing time (more than 48 months). 

Conclusion

In conclusion, the EB-5 visa program offers a unique opportunity for foreign investors to obtain permanent residency in the United States by investing in new commercial enterprises that create jobs in the country. With detailed information on the eligibility requirements, benefits, and application process, we hope this comprehensive guide has provided you with the necessary knowledge to pursue your EB-5 visa application successfully.

* The content on this website is informational only and general in nature. Please consult a licensed immigration attorney for advice about your individual situation.