To secure permanent residency status, also known as a Green Card, through the EB-5 program,...
A primary requirement for the EB-5 program is an initial investment in a new commercial enterprise....
I-526 petition investor petition requirements
For an immigrant investor hoping to obtain a Green...
EB-5 Green Card process: from investment to U.S. permanent residency
- Decide if EB-5 is right for you
- Investment-selection process
- Immigration-lawyer selection process
- File your EB-5 petition #1 (Form I-526E)
- Consular processing or adjustment of status
- 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?
Liquidity and investment duration:
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:
Commitment to U.S. residency:
Integration into American society:
2. Investment-selection process
This step involves deciding on a suitable EB-5 investment project.
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:
Timing for return of capital:
Rate of return on investment:
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:
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:
Tools and platforms:
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.
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
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.
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.
A substantial portion of the EB-5 application's success depends on accurate, comprehensive, and convincing documentation.Lawful source and path of funds:
I-526E submission and processing time
Once all documents are compiled, reviewed, and prepared:Filing fees:
I-526E processing time:
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.
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.
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:
Attend the interview:
Supporting-document preparationAssemble required documentation, including passports, birth and marriage certificates, police clearance certificates, financial and investment proof related to the EB-5 process, and any other specified documents.
Receiving your visasVisa stamping:
Entering the U.S.:
Payment of USCIS immigrant fee:
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 checkCurrent status:
No inadmissibility issues:
Document preparationForm I-485, Application to Register Permanent Residence:
I-485 submission and processing timeReceipt notice:
Interview (if required):
Approval and conditional Green Card:Approval notice:
Conditional Green Card:
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:
Nature of jobs:
I-829 submission process and processing timeWhen to file:
I-829 processing time:
This article was originally published on May 3rd, 2021 and has since been updated for accuracy and relevancy.
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