The EB-5 Program provides qualified foreign investors with the opportunity to earn a conditional, or temporary, two-year green card. EB-5 Visa means you can live and work anywhere in the United States. The EB-5 Program gives qualified foreign investors and their family (spouse and unmarried children under the age of 21 years) green cards in exchange for investing in job creating new commercial enterprises in the U.S. The EB-5 visa (Fifth Employment Based Preference) for immigrant investors is a United States visa created by the Immigration Act of 1990. It was designed to stimulate U.S. economic activity and job growth, while enabling eligible immigrants to become lawful permanent residents. EB-5 visas (up to 10,000 annually) are set aside for investors in projects sponsored by Regional Centers designated by the United States Citizenship and Immigration Services (USCIS).
EB-5 Frequently Asked Questions
get answers to the most common EB-5 questions
A EB-5 Regional Center is generally a for profit enterprise that has received USCIS approval to operate in this capacity. Regional Center’s are associated with a particular geographic area and coordinate EB-5 foreign investment within that area. Regional Centers ensure that the capital investments are EB-5 compliant and that the projects promote local economic growth. To become approved by the USCIS, the Regional Center must submit a comprehensive business plan as part of its initial I-924 application for approval. The plan outlines the proposed project, the economic benefits, and expected job creation analysis. The Regional Center is subject to review annually by the USCIS, over 250 Center have been removed from the program in the last 5 years.
Targeted Employment Area designation is adjudicated as part of the I-526 application. The EB-5 visa applicant must provide sufficient evidence that their project is located within a rural or high unemployment area. Under the new rules, States are no longer permitted to certify high unemployment TEAs, and so each I-526 must include evidence documenting that the area where the petitioner has invested or is actively in the process of investing is a high unemployment area at the applicable time of determination. According to USCIS, this evidence for high unemployment TEAs should be reliable and verifiable and could consist of the following:
- Location where the project is principally doing business
- Map that clearly demonstrates the census tract or tracts that are included in the proposed TEA (limited to directly adjacent tracts only, if proposing multiple tracts).
- Detail behind the calculations of the weighted average of the unemployment rate for the proposed TEA.
- The source of the unemployment statistics for the proposed TEA (data and methods must be “reliable and verifiable”)
The amount of required investments for each EB-5 applicant varies depending on the location of the business an investor selects The EB-5 Program requires an applicant to make a capital investment of $900,000 in a project located in a targeted employment area or $1,800,000 in a non-targeted employment area. A targeted employment area (TEA) is a rural or high-unemployment area. Both direct investment projects and regional center projects can be located in TEAs or non-TEAs, but regional center’s more often than not work with projects located in TEAs.
An EB-5 investor’s capital must be maintained at-risk during their two-year conditional permanent residency but is likely to be tied up for five years or longer. Depending on the exit procedures laid out in the regional center’s paperwork, an EB-5 investor’s capital may be returned partially or in full. It’s important to select a viable EB-5 project to invest in, as an EB-5 investor’s money is not only at risk, but their family’s future – if a project does not fulfill the EB-5 requirements they will not receive lawful permanent residency.
USCIS also requires that EB-5 investors maintain their investment “at risk” during the two years of conditional permanent residency, but by conducting thorough due diligence and assembling a strong team, an EB-5 investor may be able to minimize risk. While past histories of success do not guarantee future outcomes, when it comes to EB-5 regional centers and developers, it may show a strong amount of experience and knowledge. EB-5 investors may get the full or part of their invested money back when their immigration and investment cycles are completed. Many regional centers would include the terms and conditions of this exit procedures in the investment agreement or other documents.
Simple answer is Yes, this question has been disputed since 2015 and recently been resolved. EB-5 applicants may use an unsecured loan for their investment. As of October 27 2020, this issue has been clarified and no longer in dispute, a three-judge panel ruled in the D.C. Circuit court that EB-5 investors can use the proceeds of unsecured loans for their investment capital, upholding an 2018 D.C. federal court decision. Circuit Judge Gregory G. Katsas made this statement:” Cash is fungible, and it passes from buyer to seller without imposing on the seller any of the buyer’s obligations to his own creditors. The buyer’s source of cash — whether paycheck, gift, or loan — makes no legal or practical difference.” Gifted money could also be authenticated for the purpose of EB-5 when the donor can provide clear documentation on the source of the gifted funds.
There are no language, skills, education, managerial, or business requirements that the foreign national must possess. EB-5 investors likely must qualify as accredited investors. This means that a foreign national must either; have an annual income of at least $200,000 (or $300,000 joint income with spouse) for the previous two years as well as an expectation of the same income or higher income for the current year, or have a net worth exceeding $1 million (excluding the value of their primary residence).
An EB-5 investor is eligible to work for any U.S. employees after becoming a conditional permanent resident or obtaining work authorizations. Investors do not need to work for the regional center through which they make the investment. If investors or dependents want to work for the very EB-5 business they invest in, they should be aware that their positions may not be used to fulfill the job creation criteria.
In addition to the amount of investment and filing fees required by USCIS for the EB-5 program, investors may also need to pay for the legal, administrative, and due diligence services associated with an EB-5 application. The required EB-5 investment is $900,000 for a project located in a Targeted Employment Area (TEA) and $1.8 million for a project in a non-TEA. Investors must also pay the filing fees for the EB-5 forms – I-526, I-485 or DS-260, and I-829. Many investors retain an immigration attorney to help them handle the processing and filing of their applications, and some might hire taxation experts for pre-immigration tax planning and due diligence teams to conduct research on project candidates, which might incur extra costs.
An I-526 (Immigrant Petition by Alien Entrepreneur) is the form used by an applicant to petition the USCIS for status as an immigrant to the United States. Typically, the investor’s immigration attorney files the form to demonstrate that the immigrant is in the process of investing or has already invested the required amount into a suitable EB-5 project. The I-829 (Petition by Entrepreneur to Remove Conditions) is the final application submitted to the USCIS by an investor before he/she can become a lawful permanent resident of the United States. This petition includes evidence that the investor successfully met all of the USCIS EB-5 requirements.
The visa availability approach was recently implemented by USCIS. The Immigrant Investor Program Office (IPO), where EB-5 petitions are adjudicated, used to state that they used a first-in, first-out approach to processing EB-5 petitions, but in March of 2020, they changed over to a visa availability approach. The visa availability approach prioritizes applicants from countries without visa-backlogs. This new approach affects EB-5 investors from Mainland China who are suffering from long visa-backlogs and have been waiting years for their I-526 petition to be processed. Applicants from all other countries, and who have visas immediately available, would have their petitions prioritized at IPO under this new approach.
Under the Child Status Protection Act (CSPA) as long as an EB-5 investor’s child was under the age of 21 when they filed their I-526 Petition, their child’s age may be able to be frozen until the petition is approved. The EB-5 investor then may have to quickly file their visa application to avoid their child aging out. If their child marries prior to I-526 Petition approval, their child may become ineligible as they are no longer the EB-5 investor’s derivative beneficiary. It’s important to consult with an EB-5 immigration attorney to determine the best course of action, as long EB-5 wait times and backlogs have many investors concerned about their child’s EB-5 future.
An H, L, J and EB-2,3 visa holder can apply for an EB-5 visa while working in the United States and remain in valid status. If the I-526 petition is approved and a visa number is available when the H-1b visa holder is legally working in the U.S., an I-485 petition can be filed to adjust the applicant’s status to become a conditional permanent resident.