To secure permanent residency status, also known as a Green Card, through the EB-5 program, investors must fulfill specific requirements set by the United States Citizenship and Immigration Services (USCIS).

This article provides an overview of the requirements for obtaining permanent U.S. residency through the EB-5 program and the rules and considerations for Targeted Employment Areas (TEAs) with their lower investment amount and faster visa processing and the different types of business entities that qualify for EB-5 investments.

It highlights the key criteria investors must meet, such as the investment amount, job creation requirements, and lawful source of funds that are acceptable including loans, and various financial documentation that can should be used.

This article provides recommendations and emphasizes the importance of due diligence and expert guidance to ensure compliance.

To obtain U.S. permanent residency, immigrant investors, along with their spouse and unmarried children under the age of 21, must navigate through four crucial steps in the EB-5 petitioning process. These steps are essential for attaining permanent residency status in the United States.

Historically, EB-5 petitioners could make an investment in one of two ways: a direct investment, or a regional center investment.

A primary EB-5 requirement is an initial investment in a new commercial enterprise. That investment must be $800,000 (USD) in a Targeted Employment Area or $1,050,000 in a non-TEA area. As per United States Citizenship and Immigration Services (USCIS) regulations, investors must provide appropriate documentation in their I-526 petition to show the capital for their EB-5 investment has been obtained or earned through lawful means.

I-526 petition investor petition requirements

For an immigrant investor hoping to obtain a Green Card through the EB-5 program, the path begins with choosing an investment project and then filing Form I-526, the Immigration Petition by Alien Investor.

This article features securities attorneys Clem Turner and Jackie Prester, and registered securities broker Kurt Reuss, who works exclusively with EB-5 investments.

Redeployment of EB-5 Capital

An important consideration facing EB-5 investors, especially those from countries that don't have EB-5 visas currently available, is how they can maintain their investment at risk, in order to satisfy their 'at-risk' program requirement, when the job creating enterprise (JCE) is ready to repay the loan made to them by the entity representing investors. Failure to do so would jeopardize their I-829 approval for permanent green cards.

1. Real estate projects had advantages historically — what’s changed

Real estate construction projects often require a substantial investment with abundant job creation that EB-5 investors can rely on. 

EB-5 regional center projects are allowed to count direct, indirect and induced jobs based on the construction budget; an economic study will determine how many total jobs will be created. One needs only spend the project budget to ensure jobs will be created.

Making an investment of $800,000 - $1,050,000 in one of the EB-5 projects that ultimately fails, jeopardizes both the investor’s funds and the U.S. residency of the investor’s family, therefore every investor would be wise to know as much as possible about the investments they’re considering.

What is EB-5 due diligence?

Due diligence is an investigation of an investment prior to signing a contract. Due diligence contributes significantly to informed decision making by enhancing the amount and quality of information available to the investor allowing him or her to better understand the benefits and risks.

What is included in an EB-5 Immigrant Visa due diligence review?

Due diligence begins with a thorough analysis of the investment documents including the capital structure, project viability, exit strategy and job creation potential as it relates to the the EB-5 green card program.

The due diligence review should also identify risk mitigation strategies that have been implemented by the Manager or General Partner to protect investors. These include use of a fund administrator to oversee all transfers of investor funds, and construction monitoring to ensure transfers to the Developer are in-line with construction progress.

The Manager of the NCE (EB-5 investors) should consider the following loan administration checklist. 

1. Retain Independent Counsel. The loan documentation should be in accordance with industry standards and consider the EB-5 Immigration program's unique requirements.
2. Undertake the same due diligence as a financial institution.  This includes obtaining a feasibility of current market conditions, appraisers, title reports and potentially title insurance, a survey, zoning and environmental reports.