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 get a green card to become full U.S. citizens.
Step 1: Locating an EB5 Project
The EB5 applicant must first find a “suitable” project which meets the EB-5 program requirements. EB5 projects are generally sponsored by EB5 Regional Centres and 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.
Learn about Eb-5 Regional Centres
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.
What are the EB5 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 an eb5 green card.
What, in practical terms, does choosing a suitable EB5 project entail? What should a prospective investor look for in an EB-5 investment? Are certain industries generally more likely to meet program requirements?
There are two outcomes an EB-5 investor wants: a Green Card, and return of capital. The first is an immigration issue, the second is financial one.
What risks are involved in getting an EB5 visa?
Regarding immigration risk, job creation is a requirement that is critical to EB-5 success and an investor wants to feel confident his or her project will create the requisite number of jobs. To that end, real estate projects very often fulfill the required numbers of jobs. This is because real estate projects create many jobs during the construction phase, as opposed to other projects that depend on job creation from operations. So if a real estate project spends its construction budget — and almost all do — the required jobs will be most likely be created.
Regarding an investor’s financial risk, the capital stack (the measure and repayment position of EB-5 money and developer equity and other loans) is an important factor that must be considered when contemplating the chances of a full return of capital. Ideally, EB-5 money is in “first position” to be repaid, and is secured fully by developer equity.
Either exemplar approval (approval of project documents by USCIS before they are filed with a petition) or a previous I-526 approval will give confidence to an investor that a project meets program requirements.
Another aspect to look for is exit strategy: you want your exit strategy to match up with your I-829 filing date, the time at which an investment no longer must be “at risk.”
Lastly, when choosing an EB-5 project know that immigration benefits and a high rate of return don’t often coincide. A higher the rate of return generally indicates a higher risk level. As an investor’s primary goal is an EB5 Green Card, remember that when looking at the possible ROI of a project.
Step 2: EB-5 Investment amount and the I-526 Petition
How much money do I need to invest to qualify for an EB5 visa?
EB-5 visa applicants are required to make either a $900,000 or $1.8 million capital investment into a U.S. business venture. This investment can appear as money, stock, tangible property, or cash equivalents acceptable in the U.S. market.
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 $1.8 million if the project is not located within a TEA. If the project is located within a TEA, then the investment amount will be $900,000. The project must be in a rural area or in an area that is considered to be a high unemployment zone to qualify as a TEA.
How do I make the EB5 investment?
In order to make the investment, investors 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.
Concerned about the right EB5 investment project ?
Do I get my investment back if my I-526 petition is denied by USCIS?
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 investment 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 (replaced with the electronic version, DS-260) 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. On May 31, 2019, Department of State (DOS) updated its requirement for DS-260 forms applicants, to fully disclose the social media activity of the last five years under a Social Media Disclosure.
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 visa 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.
Here is a more detailed breakdown of the I-485 and DS-260 application process.
I-485: Adjustment of Status
When an EB-5 applicant has his or her I-526 approved and is already living in the U.S., they can then adjust their status from non-immigrant to permanent resident. This form only applies to those investors living in the States — investors living outside the U.S. must file a DS-260 petition and do that through their country’s U.S. consulate.
Filing an I-485
This petition can be filed immediately after I-526 approval. It is six pages long and has a filing fee of $1,140 (not including the $85 fee for bio metric services). It is highly advisable to have an immigration attorney do the filing for you. The documentation that must be submitted includes the following:
What documents are required for the I-485 petition?
- birth certificate
- marriage certificate and, when applicable, divorce certificate
- criminal history
- two photographs of the petitioner
- passport copy & copy of non-immigrant visa showing current U.S. status
After filing, biometric screening ($85 fee) including fingerprinting is required for petitioners between 14 and 79.
U.S. Citizenship and Immigration Services (USCIS) generally takes six to 12 months to process an I-485 application. Most petitions result in approval. Denial, though not very common, happens usually happens in cases of criminal or immigration law violations. A petitioner may file an I-765 Application for Employment Authorisation or and I-131 Application for Travel Document while they wait for their I-485 to be processed.
I-485 approval: Green Card and next steps
Approval of an I-485 means a Green Card — the applicant is now a conditional permanent resident in America. This status is good for two years. Three months before the expiration of the conditional permanent resident status, the investor will want to remove the conditions of permanent residency. This requires the investor to file an I-829 petition. Approval of this petition means the applicant and his or her spouse and children under 21 can live and work permanently in the U.S.
If an EB-5 investor has their I-526 petition approved and they are not living in the U.S. then they must file a DS-260 application for conditional permanent residency. This is done instead of an I-485 petition which is only for applicants living in the U.S. at the time of I-526 approval.
Filing a DS-260 form & interview
It is highly advisable to file this form with an immigration attorney. This petition is processed at a U.S. consulate or embassy in the petitioner’s country. The application consists of two parts. The first part consists of the application submitted by the petitioner. The application documents biographical information, including previous residences, job history, and military service history (if applicable).
The second part of the application is the interview, which is held at the U.S. consulate or embassy of the applicant’s country. A consular worker assists in completing this part of the application process. The applicant may be aksed to bring documents such as birth certificates, passport, and marriage certificate (if applicable). When the interview is done, the application process is complete.
Once a DS-260 application is approved, the EB-5 investor attains conditional permanent resident status and they and their family members can move to the U.S. and enjoy the benefits of living and working in this country.
DS-230 vs. DS-260
The U.S Department of State (DOS), in 2013, replaced the form DS-230, a paper application, with the electronic version, DS-260. Here are some differences between the two forms:
- the paper DS-230 required the applicant to list City, State/Province, Country for all residences since the age of 16 lasting more than half a year; the DS-260 requires the address of all residences since the age of 16 regardless of period of stay at that address
- the DS-230 only required month and year of prior residences; the DS-260 asks for exact dates
- the DS-230 required dates of prior visits to the U.S.; the DS-260 asks only for dates of U.S. visits in the last 5 years
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 after an I-829 application is filed, adjudicated, and approved. This application provides documented evidence that the petitioner has met all of the requirements of the EB-5 program, as per the United States Citizenship and Immigration Services (USCIS).
What documents are required to file an I-829 petition?
- conditional permanent resident card
- evidence that a commercial enterprise was created, as per federal tax returns
- documentation that the new commercial enterprise received the petitioner’s capital investment
- documentation showing the commercial enterprise was maintained for the entire conditional residency period of two years
- Proof that at least 10 fulltime jobs were created according to the business plan, as per payroll and tax records
- biometric documentation including fingerprints, photograph, and signature
- legal documents pertaining to the applicant’s criminal history (if applicable)
Filing an I-829 petition
The I-829 petition is submitted to USCIS 90 days prior to the anniversary of the date that the applicant first received his or her conditional residency. While the EB5 visa petition is being processed, the immigrant investor will have his or her conditional residency extended. If the I-829 is not filed according to such timelines, the investor may not be granted permanent residency.
The I-829 petition is typically filed by an EB-5 investor’s immigration attorney. There is a $3,750 filing fee and $85 biometrics fee associated with the filing. Here is a link to the I-829 petition on the USCIS website.
While these processing times are always changing, currently USCIS issues a permanent green card at least 21 months after the I-829 petition has been submitted. Wait times in some cases may be as long as 45.5 months, according to currently published USCIS data. USCIS claims to generally process I-829 applications in the order they receive them.
Note that USCIS may request an interview after the I-829 petition is processed.
Upon successful approval of an I-829 petition, the EB 5 visa investor, his or her spouse, and their unmarried children under the age of 21 are issued 10-year Green Cards that can always be renewed. Therefore, they can permanently live and work in the United States. Five years from the date they were issued initial conditional residency, they will have the option to become U.S. citizens with all applicable rights and benefits.
EB-5 processing time
How long will it take to get my EB-5 application approved?
Investor Program Office (IPO) publishes statistics that that can help us identify historical trends in the number of people applying for an EB 5 visa and the number of processed petitions.
I-526 processing time, fiscal years 2012 – 2018
(Receipts / Adjudications)
FY 2012 — 6,041 / 4,634
FY 2013— 6,346 / 4,642
FY 2014 — 10,950 / 6,381
FY 2015 — 14,373 / 9,817
FY 2016 — 14,147 / 9,367
FY 2017 — 12,165 / 12,243
FY 2018 — 6,424 / 15,122
We see receipts have risen but then declined to almost the same number in FY18 as there were in FY 2012. But adjudications (petitions processed) have risen steadily. So IPO at the end of this period was not receiving nearly as many petitions as in the past — but processing more than triple the number it did in FY 2012.
I-829 processing, fiscal years 2012 – 2018
(Receipts / Adjudications)
FY 2012 — 712 / 796
FY 2013 — 1,217 / 888
FY 2014 — 2,516 / 1,781
FY 2015 — 2,767 / 1,078
FY 2016 — 3,474 / 1,860
FY2017 — 2,625 / 2,644
FY2018 — 3,283 / 2,741
I-829 receipts, in contrast to I-526 receipts, have trended upwards with some minor fluctuations. However, as with I-526 adjudications, I-829 processing has very obviously increased over that span. This seems to suggest IPO has grown much more efficient regarding EB 5 processing time.