EB-5 Visas: Immigrant Investors

Overview

The EB-5 Visa is specifically designed to attract foreign investors to the U.S, to create jobs for American workers. It provides a direct route to receiving a green card, granting permanent residency for the investor and his immediate family, including children under 21 years of age.

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 10,000 EB-5 visas are available annually for qualified individuals who are engaged in a new commercial business. Of these 10,000 visas, 3,000 are set aside for designated regional centers.

Who is Eligible?

This visa is available for non-U.S. citizens who make any of the following types of business investments:

1. Create an original business, or
purchase an existing business, thereby creating a new commercial enterprise

2. Invest at least either $1,000,000 or $500,000 into a new business or an ongoing project that will create revenue for a particular city or county;

3. Expand an existing business by at least 140 percent of the pre-investment number of jobs; or

4. Provide investment assistance to an existing business that has lost 20 percent of its net worth in the past 12 to 24 months.

Note that for the first four types of business investments to qualify, they must create at least ten direct jobs for the United States workers. Investments in troubled businesses are a special case, which we describe below.

How Do I Apply?

To apply as an immigrant investor, you must file a USCIS Form I-526, Immigrant Petition by Alien Entrepreneur, together with supporting documents that clearly states that your investment meets specified requirements, as described in the following section. Once the Form I-526 is approved, you may obtain conditional resident status by filing the USCIS Form I-485, Application to Register Permanent Residence or Adjust Status, if you reside within the United States; or by applying for an immigrant visa at a U.S. consulate abroad, if you reside outside the U.S. To become a permanent resident, you must then file a USCIS Form I-829, Petition by Entrepreneur to Remove Conditions, within 90 days before the second anniversary of receiving your visa to the United States as a conditional resident.

The USCIS Form I-526 should be filed at the designated USCIS Service Center where the new commercial enterprise will be principally doing business.

Evidence Requirements: New Commercial Enterprises

To apply for an EB-5 visa in connection with an investment in a new commercial enterprise, you must submit the following evidence:

1. Evidence that you have in fact established a new commercial enterprise - for example, copies of the business’s organizational documents or Federal tax returns.
2. Evidence that you have invested the required amount of funds.
3. Evidence that you have sustained your investment in the new commercial enterprise throughout your two-year period of conditional permanent residence - for example:
  • Business invoices and receipts
  • Bank statements
  • Contracts
  • Business licensees
  • Audited or reviewed financial statements
  • Complete copies of Federal or State income tax returns or quarterly tax statements.
4. Evidence of the number of full-time employees at the beginning of your business and at present. Examples of such evidence include:
  • Business payroll records
  • Relevant tax documents
  • Employee tax form I-9s

Evidence Requirements: Troubled Business

Visas connected with investments in troubled businesses have same documentary evidence requirements as outlined above, except that instead of the evidence that the business will create at least ten new jobs, you must submit evidence that the number of existing jobs is being or will be maintained at no less than the pre-investment level for a period of at least two years - for example tax records, I-9 forms, or other relevant documents for the qualifying employees, and a comprehensive business plan.

Dependents

Your spouse and unmarried children under the age of 21 may be admitted to the U.S. with you on a two-year conditional period. Once your I-829 petition to remove conditions is approved, then the conditions will also be removed from your spouse and children’s Green Card status. Once you are a permanent resident, your spouse and children will be authorized to work or attend school in the U.S.

The EB-5 Pilot Program

The Immigrant Investor Pilot Program (“Pilot Program”) was created by Section 610 of Public Law 102-395 (October 6, 1992), and was recently extended.

Visa requirements for an investor under the Pilot Program are essentially the same as in the basic EB-5 investor program, except the Pilot Program provides for investments that are affiliated with an economic unit known as a “Regional Center”. These investments allow for a less restrictive job creation requirement based upon the creation of both direct and indirect jobs.

A Regional Center is defined as any economic unit, public or private, that is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The organizers of a Regional Center must apply for and receive a Regional Center designation from USCIS in order to qualify under this program.

To qualify for a Pilot Program you must:

Invest at least $1,000,000 or $500,000 in a Regional Center affiliated with new commercial enterprise or a troubled business; and
Create at least ten new full-time direct or indirect jobs.
The documentary evidence requirements for the Pilot Program are similar to those outlined above for EB-5 generally. American Corporate Services, Inc. has extensive experience working with regional centers; contact us for more details.

Choosing Your Investment

If you are considering making an investment in the U.S. in order to qualify for an EB-5 visa, you should carefully consider the following questions:

Is the regional center liable to be able to create ten direct or indirect jobs from your investment?
Are these jobs likely to last for at least two years?
How many others have invested in that center?
How long until the full investment needed is achieved?
Is the value of your investment likely to rise, or fall?
Will you have any say in the management of the investment?
What will happen to your application if the jobs fail?
Do the people who are advising you seem credible?

In deciding on the program with which your EB-5 immigration investment should be entrusted, and on what advice you should take, pay particular attention to the last of these questions. If your advisors focus only on the positive aspects of your application and pay little or no attention to the negatives or the potential problems, you should proceed with caution.

You should have all of the questions above answered to your satisfaction, and a reliable and independent adviser will have no problem responding to any of them. The application is the simple part, but should anything go wrong after that then keep in mind that this might be your only chance for permanent residency for many years.

Make your EB-5 immigration investment only when you are completely convinced that the program in which you are investing can keep to its part of the agreement. Usually it will be able to, but some centers may be better investments than others. Our adviser will be able to help you to come to the right decision—one that leads to your permanent residency within the year.


? Can all of the invested funds be a gift?

Yes, the person who gives the money needs to show how he/she obtained it. They need to prove source of funds.


? How are EB-5 funds usually returned after I-829 approval?

It depends on the project, and some projects’ funds return after 6 months or later. Some project may not be returned at all. You can invest in your own project also, and will be able to control 100% of your funds.


? How can I stay in the United States for EB-5 if my J-1 visa will expire?

You need to be transferred to another visa and it also depends on the country of your citizenship and the terms of your J-1 visa. You can come to have a consultation with ACS, and we can suggest you the solutions.


? How can someone without an employment history apply for EB-5?

EB-5 visa does not require any employment history or any educational background.


? How much time it takes to process I-526 Petition?

It depends on the country of citizenship. You can have a consultation with ACS and we will give you more details about the process.


? I’ve heard about foreign immigration brokers/agents. How is ACS different from foreign finders?

You do not need a foreign broker/ finder / agent. ACS is a licensed in the USA Immigration Law Firm. You just need to contact us directly and we can help you.


? Is an investment in a regional center guaranteed?

All the investments for EB-5 visa are not guaranteed. Investments in a regional center is usually risky. Therefore, we suggest you have a consultation with immigration attorney to determine the best and more secure investments.


? Should I have the same attorney for all EB-5 applications?

Not necessary by preferably.


? What happen if a conditional permanent resident leaves the U.S. for six months?

There are several options that you can do. First of all, you need to show you have a tight with the United States which could be real estate, house or any kind of business. Secondly, if you plan to be absent in the United States, you need to ask your attorney to help you obtain reentry permit which will allow you to travel for 6 months or more but not more than 1 year. Also, you need to provide the reasons why you are absent. For example, you have to take care of your family member or your business. Overall, you need to consult with your immigration attorney first, before you leave - just to make sure you will be able to come back.


? What happens if the necessary jobs are not created?

You will be disqualified. You have to make sure that at least 10 new jobs were created to follow EB-5 visa requirements. Eventually, you will have 2.5 – 3 years after filing your I-526 to create these 10 jobs.


? When is it possible to apply for U.S. citizenship?

You can apply for U.S. citizenship when you have your green card. In order to be eligible to apply for U.S. citizenship, you have to live in U.S. at least 30 months during the last 5 years.


? What must be proved in order to obtain removal of conditions on permanent residence?

You have to prove that you invested at least $500K and created at least ten new jobs. Those are the most important requirements.


? What is the I-829 approval rate for the EB-5 program?

It depends on many factors; we recommend you have a consultation with our immigration attorney for more accurate answer.


? What are EB-5 fees?

You may have to consider several payments. First payment is your investment, which is $500K now but may increase in the future. The second one is immigration attorney fee and government fees. The third one is Regional Center fee. However, you can totally invest the money in your own project without going to Regional Center or anybody’s project. In that case, you can take all control of your money.


Projects for investment


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