To obtain permanent residency status (i.e. a Green Card) through the United States Citizenship and Immigration Services (USCIS), the EB-5 investor must meet specific EB5 visa requirements.
First and foremost, a potential investor must meet the USCIS’ capital investment amount requirements. USCIS must also be satisfied that the business that will receive the investment “qualifies” for the EB-5 visa program. Learn more about EB5 process step-by-step.
Finally, there must be a minimum of ten (10) new jobs created, as further defined by the USCIS. Once all of the requirements have been deemed satisfied by the USCIS, the EB-5 visa applicant, his or her spouse and any children under the age of 21 will be able to obtain permanent residency status via an EB 5 visa.
1 - EB5 Investment Amounts
Currently, the capital investment amount required under the EB-5 green card program is $1 million; however, that amount may be decreased to $500,000 provided that the investment is made in a commercial entity located within a designated Targeted Employment Area (TEA).
Note: On July 23, 2019, the new EB-5 regulations were published:
As of November 21, 2019, investment amounts will rise substantially, as per the new rule published by the U.S. Department of Homeland Security. The TEA investment amount is rising 80% to $900,000. And the non-TEA amount is also rising 80% to $1.8 million.
The capital investment can include cash, inventory, equipment, tangible property, or secured indebtedness. The non-cash investments are valued at fair-market prices in U.S. Dollars.
Targeted Employment Area
Currently, to qualify for TEA designation, the EB5 project must be located within a rural area or within an area of high unemployment.
A high unemployment area is one wherein the local unemployment rate is at least 150% of the national unemployment rate at the time of the EB-5 investment.
Rural areas are defined as geographic regions that are outside of a city with a population of at least 20,000 residents. Rural areas can also be geographic regions that are outside of “metropolitan statistical areas,” as designated by the U.S. Office of Management and Budget.
Note: as of November 21, 2019, new regulations will impact TEA designations. Designation will then be made on the federal level and not by individual states.
The new criteria will be much more strict, with fewer urban EB-5 projects in particular and fewer projects overall receiving such status. Most projects will require an increase from $500,000 to $1.8 million (a 260% increase).
The new TEA requirements will also be more challenging to define than they are at present, and will likely require an economist to accurately determine.
While the majority of EB-5 applicants today are invested in lower-cost TEA projects, potential investors and EB-5 stakeholders can expect a considerable shift as of November 21, 2019.
Concerned about the right EB5 investment project ?
2 - Source of funds
For EB-5 investors, proving the primary source and path of their investment capital is critical. They must, as per United States Citizenship and Immigration Services (USCIS), provide documentation to prove that this capital was earned lawfully.
Where can EB-5 investment money come from?
An EB-5 applicant may have various potential sources of the money they invest. Salaried income may be one. Stocks, securities, and bank account deposits are other potentially lawful sources. For any and all sources, all investment funds must clearly show their original source.
To combat money-laundering and address security concerns, USCIS thoroughly examines where an applicant’s money came from as well as the path of that money. This means investors and their immigration lawyers must be strategic in deciding what funds to use. Documentation must be complete and valid. If an applicant’s documents are not in English, they should ensure their documentation provides a translation.
Loans as a source of funds for EB5 investment
Most often, a loan for an EB5 investment comes from a financial institution. The collateral for the loan must be cited. Contrary to an earlier regulation, USCIS now only allows a loan as a source of funds if the investor is primarily liable for the loan. Also, the value of the collateral must be at least equal to the loan amount. An applicant can expect USCIS to make a request for evidence (RFE) if the value of the collateral is close to amount of the loan. Best practices advise that the loan amount is no more than 70% of the value of the collateral property.
Tax returns & other financial documentation
An applicant must have individual and corporate/partnership tax returns filed in any jurisdiction for the last five years. When an applicant’s preceding years’ tax returns indicate higher income, he or should should also submit tax returns for the three years with the highest income.
Can gifts, inheritance, or divorce proceeds be a source of funds?
Sometimes a petitioner investing in an EB5 project has received their investment capital by means of an inheritance. In such a case, the applicant must provide all documents related to that inheritance, including estate settlements of the deceased.
Gifts are another potentially valid source of funds. All documents related to that gift must be shared, including the registration of the gift money for tax purposes, and the source of income of the gift giver.
Money derived from divorce and other legal proceedings may be used. This includes alimony, and proceeds of civil lawsuits, along with official court judgments.
What happens when documentation is missing?
Sometimes an investor in pursuit of an EB5 visa cannot obtain certain documents. In such cases, the applicant can file a declaration with a thorough explanation of why they cannot provide the missing documentation.
Though USCIS has, on occasion, accepted declarations of missing documents, this practice should be avoided wherever possible.
3 - EB5 Job Creation Requirements
For the immigrant investor program, USCIS requires that each EB-5 investment result in the creation or preservation of at least ten (10) full-time jobs for U.S. workers. These jobs must be created within a 2-year period after the immigrant investor has received his or her conditional permanent residency.
In some cases, i.e. a direct investment into the EB5 project, the investor must be able to prove that his or her investment led to the creation of direct jobs for employees who work directly within the commercial entity that received the investment.
However, those investors who invested through a regional center may only have to show that ten (10) full-time direct, indirect or induced jobs were created with their investment. Indirect jobs are those created in businesses that supply goods or services to the EB5 project. Induced jobs are jobs created within the greater community as a result of income being spent by EB5 project employees.
EB5 Business Entities
The EB-5 visa applicant is permitted to invest in several different types of business entities. Generally, the applicant can directly invest in a New Commercial Enterprise (NCE) or else within an approved EB-5 regional center. An NCE is a lawful U.S. for-profit entity that can take one of many different business structures; they include corporations, partnerships (general or limited), sole proprietorships, business trusts, or other privately or publicly owned business structures.
All New Commercial Enterprises must have been established after November 29, 1990. However, older commercial enterprises may qualify under certain conditions, for example, if the capital investment leads to a 40% increase in the number of employees or the company’s net worth. If an older business is restructured in such a way that a new commercial enterprise result that entity may then qualify, as well.
Besides investment in business enterprises, the applicant may also invest in a designated regional center which will administer the EB5 project. Generally, it is more advantageous for an immigrant investor to invest in an EB5 project through an EB5 regional center. Otherwise the investor would have to independently set up the EB5 project and ensure that all USCIS EB5 project requirements are satisfied.
EB-5 Visa Requirements Summary
(New changes mentioned above to be applicable from 21st November, 2019)
- EB 5 visa cost: $1 million capital investment in an EB5 project in a non-TEA designated area.
- Or, $500,000 capital investment in an EB5 project located within a TEA designated area.
- The investment must be made in a for-profit U.S. commercial entity.
- The investment must create ten (10) full-time U.S. jobs within the first two (2) years that conditional residency is granted.