In general, there are four steps in the EB5 process that an immigrant investor must complete in order to become a U.S. permanent resident through the USCIS EB 5 visa program (though we suggest you start by interviewing and retaining an experienced EB-5 immigration attorney).
Once these four steps have been completed, the EB5 investor, his or her spouse, and their unmarried children under the age of 21 will be eligible to become permanent residents of the United States.
Five years after obtaining their permanent residency status, those individuals will also have the option to become full U.S. citizens.
Step 1: Locating an EB 5 Visa Project
The EB5 applicant must first find a “suitable” project which meets the EB-5 program requirements. EB5 projects are generally sponsored by Regional Centres and EB-5 investors invest in a newly formed company called a New Commercial Enterprise (NCE). The NCE is managed by a Manager or General Partner who makes the decisions on behalf of the NCE.
In order to move the EB5 process forward, the EB5 visa applicant must also ensure that he or she is able to meet the Income requirement and other EB-5 visa program requirements. EB-5 investor must be able to show that the invested capital is from lawful sources. Investor must also invest in a project that meets the EB-5 Program requirements. Some of these requirements include that the business plan is credible and ‘matter-of-ho” compliant. The funds must be invested in a New Commercial Enterprise and spent on qualified expenditures related to job creation. The project must create sufficient jobs to meet the requirement of all EB-5 investors, therefore the project must be able to create ten (10) new American jobs for every EB-5 investor. The investor’s capital must be placed ‘at-risk’ with a chance for gain and risk of loss without any guarantees of return of capital. The investors’ role in the enterprise must be identified to meet the EB-5 visa requirements. If the investment is being made in a Targeted Employment Area (TEA), the TEA designation must be valid at the time of the investment.
Therefore, it is critical to have a due diligence review of all project documents to ensure that the project meets the EB-5 program requirements and the investor will be successful in obtaining a green card.
Step 2: Capital Investment and the I-526 Petition
After choosing an appropriate EB5 project to invest in, the applicant must make the required capital investment in the chosen project. The investment amount must be $1 million if the project is not located within a TEA. If the project is located within a TEA, then the investment amount will be $500,000. In order to make the investment, investor will sign a subscription agreement which will give the investor an ownership interest in the New Commercial Enterprise. Investor’s funds are generally wired to an escrow account controlled by an appointed escrow agent. Then, an immigration attorney will provide proof of this investment by filing an I-526 petition with the USCIS.Typically, after a period of 12 to 18 months, the USCIS will approve or deny the I-526 petition and inform the applicant appropriately. In the event the I-526 petition is denied by the USCIS, most NCEs will refund the capital investment.
EB5 Refund obligation
It is important to read the offering documents, escrow agreement and the limited partnership or operating agreement of the NCE to understand the refund obligations in the event of I-526 petition denial by USCIS. Refund obligations can vary where some NCEs provide a refund guarantee in case of I-526 denial, some NCEs will holdback 10%-20% of all investors funds in an escrow account in order to refund denied investors, some NCEs will promise to use reasonable efforts to replace the investor.
I-526 denial risk can be mitigated if a project has an exemplar approval. An exemplar approval means USCIS has reviewed the project documents and has indicated that the project documents meet the EB-5 program requirements and investor can only be denied if he/she fails to meet the source of funds requirement. An exemplar approval is not binding if there is misrepresentation or the business plan changes materially from the time of approval. An exemplar approval does not mean the project will create the estimated jobs or that it is less risky than a project without exemplar approval. An exemplar approval can provide peace of mind that the project is approvable by USCIS.
Step 3: 2-Year Conditional Permanent Residency
The applicant’s next step in the EB 5 visa process is to become a 2-year conditional resident of the United States. An EB5 investor is eligible to become a U.S. resident once his or her I-526 petition has been approved by USCIS EB5. Residency can be attained in one of two ways:
- If the EB5 investor has already been granted lawful status in the U.S. (i.e. holds an immigrant visa issued by the U.S. Department of State), then they must file Form I-485 to adjust their status to conditional permanent resident.
- If the EB5 investor does not already have lawful status in the U.S., then they must file for an immigrant visa by submitting Form DS-230 to the National Visa Center. This process can be done either through a U.S. consulate or a U.S. embassy in their home country.
In general, either of these steps will require the assistance of an immigration attorney. If approved, the immigrant visa is generally issued, on average, within 6 - 12 months.
During the 2-year conditional residency period, the EB5 investor will be required to fulfill “physical presence requirements,” and cannot remain outside of the United States for more than one year. As per eb 5 visa requirements if the immigrant investor does reside outside of the U.S. for more than one year, they would be required to obtain a re-entry permit.
Step 4: Unconditional Permanent Residency and the I-829 Petition
The final step in the EB 5 visa process is for the applicant to become an unconditional permanent resident. This is done by the removal of his or her 2-year conditional residency status.
The I-829 petition is submitted to the USCIS 90 days prior to the anniversary of the date that the applicant first received his or her conditional residency. This application proves that the EB5 investor has met all of the requirements of the EB5 visa program. The USCIS generally issues a permanent green card six to eight months after the I-829 petition has been submitted.
The EB 5 visa investor, his or her spouse, and their unmarried children under the age of 21 can then permanently live and work in the United States. After five years from the date that initial conditional residency was granted, they will then have the option to become U.S. citizens with all applicable rights and benefits.
Checkout the List of EB5 Projects