1. Decide if EB-5 is right for you
2. Investment-selection process
3. Immigration-lawyer selection process
4. File your EB-5 petition #1 (Form I-526E)
5. Consular processing or adjustment of status
6. File your EB-5 petition #2 (Form I-829)

1. Decide if EB-5 is right for you

Is the EB-5 visa program a good fit for you? Before embarking on the EB-5 journey, you should assess if this program aligns with your immigration and financial goals.

Key considerations include:

Financial Capacity: Do you have the financial resources to make the required minimum investment?

The EB-5 program requires a minimum investment of at least $800,000 for an investment in a rural or high-unemployment area or an infrastructure investment project. But isn't just about having the funds; it's about the origin, management, and allocation of these funds.

• Source of funds: It's vital to prove that your investment capital comes from legitimate and legal sources. Lawful sources include (but are not limited to) employment earnings, capital from income-generating assts or non-income-generating securities, inheritance, gifts, legal settlements, and loans. The U.S. Citizenship and Immigration Services (USCIS) will require you to can show private documents like tax returns, business records, sale documents, or any other financial records that can trace the lawful origins of the funds. Are you prepared for this level of financial scrutiny?
  
  
• Risk tolerance: Investors are always searching for a safe EB-5 investment. But all investments come with risk, and the EB-5 program is no exception. Often a higher rate of return comes with a higher level of risk. Can you stomach the idea that your investment may not yield substantial returns, or that there may be a partial or even complete loss of your money? Your primary goal might be immigration, but the financial implications are real and must be considered.
  
  
• Liquidity and investment duration: EB-5 investments aren't short-term. Are you comfortable with your funds being tied up for a considerable period, often several years, before you might see a return or even recoup your initial investment? Different investment may offer different repayment dates and this is just one of many factors that should be carefully considered.

Residency intent: Do you have the intent to become a permanent U.S. resident?

While the ultimate reward of the EB-5 program is U.S. residency, it's vital to understand the nuances of what this entails. There are financial, legal, and lifestyle factors to consider.

• Understanding conditional permanent residency: Successful EB-5 investors initially receive a two-year conditional Green Card. Do you understand the limitations of this status and the processes involved in moving from conditional to permanent residency?
• Commitment to U.S. residency: As a Green Card holder, there are expectations like tax implications. U.S. permanent residents are taxed on global income. Are you ready for this level of financial and legal commitment?
• Integration into American society: While this might seem more emotional than technical, it's an essential consideration. Are you, and possibly your family, prepared for the cultural, social, and educational shifts that come with living in the U.S.? It's not just about the legal right to live in the country; it's about building a life there.

2. Investment-selection process

This step involves deciding on a suitable EB-5 investment project.

Due diligence

It's essential to research and understand the potential risks, financial projections, and feasibility of your chosen project. And this should often entail a comparison with other available projects.

While an immigration lawyer can advise you on the immigration considerations of an investment, unless that lawyer is a financial advisor, he or she should not be offering professional advice on the financial aspects of an investment.

IMPORTANT: USCIS states the following: “Approval of an EB-5 regional center application does not in any way constitute USCIS endorsement of the activities of that regional center, guarantee compliance with U.S. securities laws, or minimize or eliminate risk to the investor.”

If you’re concerned about the safety of an investment, you should only rely on a registered investment professional experienced with EB-5 investments and the most current regulations.

What should due diligence of an EB-5 investment project entail? Given the significance of the investment in both financial and immigration terms, thorough research is paramount.

• Background checks: Look into the history, successes, and failures of the regional centers and project managements under consideration. How many EB-5 applications have they successfully processed? Are there any legal disputes or controversies in their past?
• TEA qualification: The EB-5 Reform and Integrity Act of 2022 (RIA) provides special advantages to investments made in certain areas such as rural or high unemployment areas. Advantages include lower investment amounts, reserved visas allowing investors from backlogged countries to skip the line, and faster “priority processing” for rural investments.
• Financial projections: Evaluate the project's financial forecasts. Are the estimates realistic? What are the underlying assumptions? How do they compare with similar businesses in a similar market? A due diligence report from a third-party can help with your analysis.
• Job-creation estimates: Essential for EB-5 success. Understand how the regional center intends to create the required jobs. What contingencies are in place and what is the job cushion?
• Timing for return of capital: Understand the plan for the return of your capital. Are there your possible extensions and if so, is the the business likely to take advantage of them? Is the business incentivized to repay sooner than later? Are there provisions for project failure or early sale?
• Rate of return on investment: How does the rate of return compare with other offerings in the market? Does it require more risk? Rates of return can vary depending on the industry and level of risk, but in EB-5, a perception of low risk is often used to provide lower rates of return. It’s important to do your homework.

3. Immigration-lawyer selection process

The EB-5 program has currently evolving regulations and most people are recommended to hire an experienced EB-5 immigration lawyer to simplify the process and guide you through the complexities.

Experience and Track Record

Consider the lawyer’s success rate, experience with EB-5 applications, and client testimonials.

• Specialization: Ensure your lawyer specializes in EB-5 visas. You may also want a lawyer with experience in the specific issues of your country — especially with source of funds, an area of critical importance when it comes to petition approval.
• Success rate: How many EB-5 cases have they handled, and what percentage have been approved? There’s no such thing as a completely safe EB-5 investment but a lawyer’s high success rate can give you added confidence.
• Client testimonials: Past client experiences can offer a clearer picture. Seek out testimonials, reviews, or references to gauge satisfaction levels and understand any issues that may have arisen during the process and how they were resolved.
• Past litigations: It's also worthwhile to find out if the attorney has ever faced disciplinary actions or has been involved in litigation related to an EB-5 case.

Communication

The legal aspects of EB-5 are complex. An attorney who communicates effectively can help ensure you understand the process, any potential pitfalls, and increase your comfort level.

• Responsiveness: Time is of the essence in the EB-5 process. How quickly does the attorney or their firm respond to your queries? If you're communicating across different time zones, factor this in and set clear expectations about response times.
• Regular updates: Regular updates on the status of your application, changes in laws, or potential challenges can be very helpful.
• Tools and platforms: Client portals or other platforms can streamline communication, document sharing, and status tracking. While not essential, it can simplify the process.

Other considerations

• Fees: Is it a flat fee, hourly, or based on the application's success? Does the fee include both the filing of the I-526E and the I-829? Does it include documenting your source of funds?Ensure there are no hidden costs.
• Translation: If your source of funds documents are in a language other than English, you'll need certified translations. Some attorneys might offer this service, or they might recommend a trusted translation service.
• Complex Cases: If your funds come from multiple sources or involve complex transactions, be prepared for a more intricate documentation process. This is where an attorney's expertise becomes invaluable.
• Team: Often, a lawyer is backed by a team. Who else will be working on your case? It's helpful to know their qualifications and role.
• Network: A well-connected attorney might have ties with other professionals in the EB-5 space, such as due diligence analysts and investment brokers.

4. File your EB-5 petition #1 (Form I-526E)

This is the first immigration filing step in the EB-5 process. This form demonstrates the investor's eligibility and commitment to the program's requirements.

I-526E requirements

Capital investment requirements

Capital must be acquired by lawful means. It cannot include capital exchanged with any debt arrangement, or capital invested with a guaranteed rate of return or a contractual right to repayment. Legal sources may include employment earnings, capital from income-generating assets or non-income-generating security, inheritance, gifts, divorce proceeds, and loans.

The required capital must be invested in a new commercial enterprise (NCE), an American for-profit business. Investment in a non-commercial enterprise, such as owning residential real estate does not qualify

The minimum investment amount is $800,000 for an investment made in a targeted employment area (TEA), or $1,050,000 for a non-TEA investment.

TEAs include investment in rural and high-unemployment areas and infrastructure investment projects.

Rural areas must be outside a metropolitan statistical area (MSA) and outside towns with a population of 20,000 or more according to the most recent decennial census.

A high-unemployment area includes a census tract or contiguous census tracts where the new business operates and where the combined unemployment rate is 150% of the national average.

An infrastructure project is an investment project administered by a governmental entity (such as a Federal, State, or local agency or authority) and provides funding for maintaining, improving, or constructing a public works project.

The investment capital must be sustained “at risk” for at least two years after investing

Job-creation

The I-526 petition for the EB-5 program requires proof of creating 10 full-time jobs in the U.S. within two years of the time an investor gains conditional permanent residency. Regional Center investments can fulfill this requirement through direct (operational), indirect (supplier industry), and induced (employment in the local economy created) job creation. Direct investments only consider direct jobs.

It is possible that some Regional Center projects have already created the necessary jobs before the EB-5 investment. However, it is important to be cautious as USCIS may not accept that the jobs created before the investment qualifies. There is an exception to this rule when bridge financing (a loan of one year or less) was used to create the jobs, and then the bridge financing was replaced with EB-5 investment capital.

Visa set-asides

The RIA provides reserved visas that are of particular benefit for investors from backlogged countries (countries with an EB-5 lineup because of oversubscription over the years) and as of now there are no official lineups for reserved visas for any country including China, India, or Vietnam.

Rural investments have a set-aside of 20% of the total number of available EB-5 visas in a given year and also offer priority processing. High-unemployment area investments have a set-aside of 10% of available EB-5 visas. And infrastructure investments receive a set-aside of 2% of EB-5 visas.

Document Preparation

A substantial portion of the EB-5 application's success depends on accurate, comprehensive, and convincing documentation.

• Lawful source and path of funds: This is a vital step in the EB-5 process and is often the reason for petition denial. Acceptable documents include bank statements, employment records, business financials, and more. Beyond the source of funds, it is vital to show how your funds moved from your home country to the new commercial enterprise (NCE).
• Investment details: Outline specifics of your investment. This will include details about the regional center (if applicable and not a direct investment), the nature of the investment project, projected job creation, and more.
• Personal Documentation: This includes personal identification, like passports, birth certificates, and any prior U.S. immigration documents if applicable.
• Business Plan: You will need to present USCIS with a comprehensive business plan showing the viability of the project and the likelihood of job creation according to economic modelling, etc.

I-526E submission and processing time

Once all documents are compiled, reviewed, and prepared:

• Filing fees: The fee for filing an I-526E petition is $3,675.
• Submission: Your lawyer will submit the completed Form I-526E, along with all supporting documentation, to the United States Citizenship and Immigration Services (USCIS).
• Receipt notice: After submission, USCIS will issue a receipt notice confirming they've received your petition. This is not an approval but an acknowledgment of receipt only.
• I-526E processing time: Historically, I-526 processing times have varied and in 2023 most immigration lawyers expect a regular petition to be processed in about four years. And expedited petition, for an investment made in the government interest can take several months. And a rural petition with priority processing can take less than a year from processing. Be prepared for any Request for Evidence (RFE) that USCIS might issue if they need more information or clarification
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5. Consular processing or adjustment of status

Upon approval of your I-526 petition, you and your dependent family members will be issued conditional Green Cards. If you are living outside of the U.S. this will happen via consular processing; if you are living in the U.S. this will happen by adjustment of status.

Consular processing

If you live outside the U.S., once your I-526E petition is approved by USCIS, your case will be forwarded to the National Visa Center. The NVC will then send you a notice indicating that you're eligible for consular processing

You will file Form DS-260 with a U.S. embassy or consulate. After the application, you will attend an interview at the consulate or embassy.

Application documentation includes biographical information such as address history, employment history, military information, and a disclosure of social media for the past five years. The interview will take place at the U.S. consulate or embassy in the petitioner’s country of residence.

DS-260 application

This application documents information such as your residence history, employment history, military information, and a disclosure of social media for the previous five years.

Consulate or embassy interview

You will attend an interview at the U.S. consulate or embassy in your home country.

• Medical examination: Before your interview, you and any accompanying family members must undergo a medical examination by a U.S. embassy or consulate-approved doctor. The results are typically sealed and should not be opened. Instead, they should be presented as-is during the interview.
• Interview preparation: It's essential to review your EB-5 application, investment details, and personal history to answer potential questions confidently.
• Attend the interview: All applicants, including family members, are typically required to attend the interview. The interviewing officer will review the application, ask questions, and determine the eligibility for the visa.
• Potential outcomes: The consular officer may approve the visa immediately after the interview, request additional information (leading to administrative processing), or deny the visa.

Supporting-document preparation

Receiving your visas

• Visa stamping: If approved, the visa will be stamped into your passport, allowing you entry into the U.S.
• Entering the U.S.: Upon arriving in the U.S. with your immigrant visa, you'll be inspected by Customs and Border Protection. Once admitted, you become a conditional permanent resident.
• Payment of USCIS immigrant fee: Before traveling to the U.S., you will need to pay an immigrant fee to USCIS. This fee covers the cost of processing and delivering your physical Green Card.

File Form I-485 for adjustment of status

For individuals already in the U.S. under a different visa category, the EB-5 process allows for an adjustment of status, enabling the transition from your current status to that of a conditional permanent resident without the need to leave the country.

Eligibility check

• Current status: You must be physically present in the U.S. and maintain a lawful non-immigrant status. This means you shouldn’t have overstayed your visa or violated the terms of your status.
• No inadmissibility issues: Ensure there are no grounds on which you could be deemed inadmissible, such as certain criminal convictions or health-related grounds.

Document preparation

• Form I-485, Application to Register Permanent Residence: This is the primary form you'll need to complete for the adjustment of status process. It provides USCIS with details about your background and eligibility.
• Supporting documents: These might include your approved I-526E petition, evidence of lawful entry (like a prior visa or I-94 record), birth and marriage certificates, and medical examination results from a USCIS-approved civil surgeon.
• Application fees: Applicants 14 and under and filing with at least one parent pay $750. Applicants 14 and under and not filing with at least one parent pay $1,140. Applicants 14 to 78 pay $1,140 plus an $85 biometrics fee. Applicants 79 and older pay $1,140.

I-485 submission and processing time

• Receipt notice: After submission, USCIS will send a receipt notice, confirming they've received your application.
• Biometrics appointment: If you are 14 to 78, you must schedule a biometrics appointment, where your fingerprints, photograph, and signature will be taken for background and security checks.
• Interview (if required): Depending on the circumstances, USCIS might schedule an interview. If scheduled, attend the interview and answer questions regarding your application and background.
• I-485 processing time: This application can take between one to two years.

Approval and conditional Green Card:

• Approval notice: Upon successful review, USCIS will approve your I-485 application and send an approval notice.
• Conditional Green Card: Shortly after approval, you'll receive your conditional Green Card, valid for two years. With this, you're now a conditional permanent resident of the U.S.

6. File your EB-5 petition #2 (Form I-829)

The filing of Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status signifies a transition from conditional to permanent U.S. residency. The primary requirements are that the required jobs were created and that the business plan was followed during the conditional permanent residency.

Prove job creation

The petitioner must show proof that least 10 permanent full-time jobs were created.

• Documentation: You'll need to provide comprehensive evidence that your investment directly or indirectly created the required number of jobs.
• Nature of jobs: The jobs created must be full-time positions, meaning at least 35 working hours a week, and have been filled by qualifying U.S. workers.
• Job duration: The created jobs do not need to last any amount of time, but they must be intended to last a minimum of two years. Unless the job creating business has failed, there should be evidence that the jobs will exist for a minimum of two years.

I-829 submission process and processing time

• When to file: The I-829 petition must be filed in the 90-day period prior to the end of conditional permanent residency
• Filing fees: The fee for filing an I-829 petition is $3,750, and the biometrics fee is an additional $85.
• Submission: Your lawyer will submit the completed Form I-526E, along with all supporting documentation, to the United States Citizenship and Immigration Services (USCIS).
• Receipt notice: After submission, USCIS will issue a receipt notice confirming they've received your petition. This is not an approval but an acknowledgment of receipt only.
• Submission: Once you've compiled the necessary evidence and your attorney has completed the I-829 form, it is submitted to USCIS. Remember to also include the required filing fee.
• I-829 processing time: After submission, USCIS will process the petition, which can take around two years..

If the I-829 petition is approved, the petitioner and dependents are issued 10-year Green Cards that can be renewed indefinitely.

This article was originally published on May 3rd, 2021 and has since been updated for accuracy and relevancy.