Everything You Need to Know About the EB-5 Visa

The EB-5 is a conditional visa that requires a significant investment with a U.S.-based business, usually made through an accredited regional center.

Last updated on March 26th, 2019

U.S. Citizenship and Immigration Services (USCIS) offers several visa options to individuals who want to live and work in the country permanently. If you’re interested in investing in a U.S. business, the most attractive of these options is the EB-5 visa.

The EB-5 is a conditional visa requiring an investment of either $500,000 or $1,000,000 in a U.S.-based company. It also requires that you create and maintain at least 10 full-time positions staffed by U.S. workers.

An EB-5 visa is an excellent option for those interested in personally investing in, and maintaining, a U.S.-based company.

However, most investors choose to take a more hands-off approach, and instead invest in EB-5 Regional Centers. These centers make EB-5 visas available to those who do not wish to personally manage their investments, thus making the whole process much easier.

In fact, around 95% of all EB-5 applicants choose to invest their money in a Regional Center.

What are the Requirements for an EB-5 Visa?

In order to apply for an EB-5 investor visa, you must fulfill the following requirements:

  • You must invest at least $500,000 (for rural Targeted Employment Areas) or $1,000,000 of at-risk capital in a U.S.-based new commercial enterprise.
    • Additionally, you will be required to prove the legitimacy of the funds you used to do so.
  • You must create at least ten full-time positions for U.S.-based employees. These positions may be filled by citizens or permanent residents, but not temporary green card holders.
    • Your immediate family does not count towards the employment requirement.
  • After making your investment, you must play an active part in managing the new business. This may include anything from intensive day-to-day management to simply helping shape company policy. In most cases, you must be at least a limited partner to fulfill the management requirement.

There is no country of origin requirement for an EB-5 visa. However, individuals from countries with many EB-5 applicants may have to wait years for USCIS to approve their applications.

This is most relevant for applicants from China, which is currently experiencing a significant backlog of EB-5 applications.

What counts as a “new commercial enterprise?”

According to USCIS, a commercial enterprise must fulfill at least one of the following requirements to be considered new:

  • The business was established after 1990.
  • It was majorly restructured and reorganized following your purchase of the business.
  • The scope of the business was significantly expanded through your investment, resulting in a minimum 40% increase in either (1) the business’s net worth, or (2) the number of employees.

If you invest with an EB-5 Regional Center, you automatically meet this requirement. Investments with EB-5 Regional Centers always count as new commercial enterprises.

How much do I need to invest?

By default, you must invest at least $1,000,000 to qualify for an EB-5 visa. However, that requirement goes down to $500,000 in a Targeted Employment Area (TEA). This includes a number of rural locations as well as regions experiencing high levels of unemployment.

Keep in mind that $500,000 is a very small amount of money for starting a new business with a high employment requirement.

If you can only afford the minimum investment, consider investing with an EB-5 Regional Center. This will significantly lower your risk and improve your chances of qualifying for a green card.

What is “at-risk” capital?

In order to qualify for a green card with an EB-5 visa, your capital must remain at-risk for the entire length of the visa process.

This doesn’t mean that you have to make a risky or dangerous investment. You only need to risk losing a certain amount of capital if your investment project fails. If another entity agrees to refund your money should your investment fail, you do not have capital-at-risk, and will not qualify for an EB-5 visa.

The “at-risk” definition is most relevant when it comes to funding projects with general-obligation bonds. That’s because general-obligation bonds may or may not qualify as at-risk capital, depending on the terms of the bond agreement.

For this reason, it’s important to consult with an immigration lawyer before undertaking an EB-5 project funded by general-obligation bonds.

General Questions

There are a few common questions that you should know the answers to. We’ll answer these in the sections below.

How long does an EB-5 visa last?

An EB-5 visa is a conditional visa lasting for two years. 90 days before the end of that two-year period, you may file an I-829 petition demonstrating that you have fulfilled the conditions of the EB-5 visa.

If USCIS accepts this petition, they will grant permanent resident green cards to you and qualifying family members.

After you have been a permanent resident for five years, you may also qualify for U.S. citizenship. There are a number of advantages to doing so, such as gaining the right to vote.

Notably, your immediate and distant relatives will qualify for an expedited green card process after you’ve gained U.S. citizenship status.

Can my family come with me?

Immediate family members may accompany you to the United States on a conditional EB-5 visa. This includes:

  • Spouses, provided that you married before applying for your visa.
  • Unmarried children under the age of 21.

USCIS will grant your family permanent resident status after accepting your I-829 petition.

Where can my funds come from?

Proving the legitimacy of your funds is one of the hardest parts of qualifying for an EB-5 visa. The following sources are considered legitimate:

  • Salaries or other wages.
  • Proceeds from the sale of stocks, securities, or real estate.
  • Proceeds from the sale of a previous business.
  • Retirement Funds.
  • Inheritance or gifts.
  • Loans, under certain circumstances.

In each case, you will need to prove that the funds were originally acquired in a lawful manner. This often involves submitting tax returns, bank statements, and the like.

In general, you will want to consult an EB-5 attorney regarding the sources of your funds, and the amount of evidence you will have to provide.

Are loans a valid source of funds?

Personal loans are a valid source of funds for EB-5 investments. However, you must be solely responsible for repaying the funds, and they must be secured by your personal property.

Thus, funds backed by the company you work for are not valid for EB-5 investment purposes. Additionally, you may not invest any funds secured by the financial enterprise you are investing in.

What is an EB-5 Regional Center?

The large majority of EB-5 applicants choose to invest through an EB-5 regional center. Doing so lowers the risks involved with investing in a new business, and in general, makes the whole immigration process much easier.

An EB-5 Regional Center is a private investment company that pools the resources of several EB-5 applicants to create large-scale capital investment projects. EB-5 Regional Centers are licensed by USCIS, and working with them has many benefits.

The main benefit is that investors with EB-5 Regional Centers can benefit from both direct and indirect job creation.

Most EB-5 applicants choose to invest with Regional Centers. That’s because, in addition to helping fulfill the job creation requirement, Regional Centers offer a greater sense of security. Finally, most Regional Centers offer limited partnership investment models, allowing you to fulfill the active management requirement without working at your project full-time.

You can find a list of legitimate EB-5 Regional Centers on USCIS’s website.

What is indirect job creation?

Normally, you can only use individuals that your company directly employs to fulfill the EB-5 employment requirement.

If you invest with an EB-5 Regional Center, however, you can use indirect and induced jobs to fulfill the requirement. Essentially, this means that you can count jobs created by the wealth that your EB-5 investment brings to the local community as part of your total.

For example, let’s say that you invested in a hotel service with an EB-5 Regional Center. Your hotel service is doing well, but your investment only creates 6 new jobs. However, as a result of the increased business your investment caused, a coffee shop opened right next door, creating 4 new jobs.

By investing with the Regional Center, you can count these indirect jobs towards the “create 10 jobs” requirement.

How Can I Apply for an EB-5 Visa?

Applying for an EB-5 visa is a relatively straightforward process with five basic steps. We’ll briefly discuss these steps below.

However, it’s also important to have an immigration lawyer involved throughout the process. An experienced immigration lawyer can check your source of funds, business plan, and application against previous EB-5 applications. By doing so, you can improve your overall chances of having your application accepted.

Step 1: Contact an EB-5 Regional Center or Make a Direct Investment

First, you’ll need to actually prepare to make an investment in the United States. Most EB-5 investors choose to do so by contacting a reputable EB-5 Regional Center. Regional Centers will work with you to create a safe investment that fulfills the EB-5 visa’s employment and active management requirements.

Furthermore, a reputable EB-5 Regional Center will refund your initial investment if USCIS denies your petition.

On the other hand, you may choose to invest directly in a new enterprise. In most cases, this is significantly riskier than investing with an EB-5 Regional Center. However, it can be a great option if you have always wanted to manage a business in the United States.

Step 2: File an I-526 Petition

Next, you’ll need to file an I-526 petition. This is a form detailing your personal information and the nature of your investment. It must include a thorough description of your sources of funding, as well as a comprehensive business plan.

Your petition and business plan must both be in English. If any element of your source of funding report is in a language other than English, you must accompany it with a certified translation.

It may take 7 months or longer to hear back from USCIS. Once you do, you will be assigned a visa number. Once this number becomes current on the U.S. visa bulletin, you can proceed to the next step.

Step 3: Apply for Residency

Once your visa number is current, it’s time to apply to become a U.S. resident.

  • If you are already in the United States, you must file Form I-485. This will allow you to adjust your residency status to conditional permanent resident.
  • If you reside outside the United States, you will have to file an electronic Form DS-260. This is an application for an immigrant visa.

The processing times for these forms can vary significantly depending on your country of origin. However, USCIS provides a rough guide to processing times through their online case status tool.

Step 4: Receive your Visa and Green Card

If you have been residing outside of the United States, USCIS will eventually mail you an EB-5 visa. This will allow you to enter the United States during a specific window of time and live there for up to two years. After a period of about 45 days, USCIS will mail you a conditional green card. USCIS will never mail a green card outside of the United States.

After two years, your EB-5 visa and conditional green card will expire. Once this happens, you will be out of luck—you will have to start the process over with a new investment if you want to become a permanent resident. To prevent this from happening, make sure you move on to step 5 before your visa expires.

Step 5: Apply for Removal of Conditions

Starting 90 days before the expiration date on your visa, you may petition USCIS to remove the conditions on it. You can do so by filing an I-829 form. This is a document proving that you have fulfilled each one of the EB-5 requirements over the previous two years. You will also have to show that the positions you have created are all filled by U.S. citizens or permanent residents other than your immediate family.

If USCIS accepts your I-829 petition, you will become an unconditional permanent resident. This will allow you to stay in the United States indefinitely, and to apply for citizenship after five years.

Conclusion

Applying for an EB-5 visa can be an excellent move for you, your family, and your career. However, it’s important to invest in legal counsel going in.

Failing to consult an immigration lawyer when applying for an EB-5 visa can result in a massive loss of time and money on your part. Meanwhile, a good immigration lawyer can provide invaluable advice and assistance over the entire EB-5 application process.

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