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The EB-5 Immigrant Investor Visa Program is a U.S. immigration pathway that allows eligible investors and their immediate families to obtain permanent residency (a green card) in the United States by making a substantial investment in a commercial enterprise. The program is designed to stimulate the U.S. economy through job creation and capital investment.

EB-5 investors do not have to rely on someone else to file a petition for them (such as an employer or family member). Rather, they get to file their immigration petition on their own behalf, through self-petition. 

EB-5 Investor Program has two basic requirements:

(1) You are required to invest a minimum of $1,050,000 in a New commercial US enterprise. If your investment is located in an economically depressed area called a "Targeted Employment Area," you may be eligible to invest a reduced amount of $800,000.

(2) The business must create or preserve at least 10 permanent full-time jobs for qualified U.S. workers for a minimum of 2 years. 

1. Investment

Open to any national who can invest a minimum investment of $1,050,000. The initial investment may be reduced to $800,000 if invested within a Targeted Employment Area (TEA), which is either a rural or with experiencing high unemployment levels area. 

• The investment must be in a “New Commercial Enterprise”

• Your investment funds must be "at risk”. Non-profit enterprises do not qualify for EB-5.

• The funds must have been lawfully obtained.

(a) New commercial enterprise – for the purposes of the EB-5 visa, are all for-profit businesses established after November 29, 1990.

This includes all lawful for-profit businesses like:

• Start a new business; 
• Invest in an existing business; 
• Buy an existing business; 
• Invest in a Regional Center Project (this are indirect investments)

A direct investment is when you start a new business or purchase an existing business. 

An indirect investment is when you use a Regional Center Project which are specialized companies, regulated by USCIS, that collect investment funds from multiple EB-5 investors to fund large-scale projects such as resorts or sporting arenas. 

If you decide to buy or invest in businesses established on or before November 29, 1990 it still can qualify as a New commercial enterprise if: 

• the investor substantially reorganizes or restructures the business; or
• if the investor increases the size of the business so that there will be a 40% increase in the number of employees of the business; or a 40% increase in the net worth of the business.

(b) Your investment funds must be "At risk." 

While the regulations are not very clear, here are a few things to be aware of: 

• Your investment must be subject to profit or loss. 
• You cannot get any guarantee that the capital you invest will be returned to you. 
• You may not be granted the right to redeem any part of your interest in the business. 
• Your funds cannot just sit in a bank account.

(c) The funds used for your investment must have been lawfully obtained.

Funds invested in the enterprise must have been obtained through lawful activity. To prove this, you must submit many documents showing how the funds were obtained. Sale of property or business, loans, inheritance are examples of acceptable funds. 

Gifts are also lawful but you have to prove the path of the money and to show that the person who gives you the funds obtained the money lawfully. The same is valid when the investment comes from an inheritance.

Keep in mind that you must prove the funds were in your possession before they are invested in the EB-5 enterprise. 

Targeted Employment Area

To qualify for the reduced investment amount of $800,000, the new commercial enterprise must be principally doing business in the Targeted Employment Area. This is an area of high unemployment or a rural area (not located within a metropolitan and is not located within any city or town having a population of 20,000 people or more).

2. The business invested in must create at least 10 full-time jobs for US workers.

The EB-5 program requires your investment to create at least 10 new full-time jobs for US workers. There are differences in the job calculation if the investor makes a direct investment or the investment is in a Regional Center Project.

• For direct investments, the only jobs that count are the jobs that are directly created by the new commercial enterprise, meaning that if you purchase a business that already has 10 employees, you are required to create at least 10 new jobs.

• Regional Centers can count direct jobs and indirect jobs. Indirect jobs are jobs that are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise. 

It means that Regional Centers are able to take credit for jobs that they don’t directly create. This includes jobs created as a result of the project the Regional Center is developing.

For example, if a Regional Center develops a major hotel, it can take credit for all the employees of the hotel. These are direct jobs. 

To build the hotel, the Regional Center would need suppliers for concrete, furniture, and other goods. These workers may get counted as indirect jobs.

But, if the same hotel investment is made as a direct investment, (not through a Regional Center), then the project cannot take credit for the indirect jobs. The hotel investment would only be able to take credit for the direct jobs they create, like the hotel staff.

Additionally:

• The EB-5 investor, their spouse, and children do not count as qualifying employees.

• Nonimmigrants and people that are not authorized to work in the US do not count as qualifying employees.

• The jobs are expected to last for at least 2 years and cannot be seasonal, temporary, or intermittent jobs.

There is an exception to 10-job-creation rule for Troubled Businesses.

A Troubled Business is a business that has been in existence for at least 2 years and has experienced a net loss of at least 20 percent of its net worth for the 12- or 24-month period before the date the EB-5 investor filed their Form I-526. 

• If a business is a troubled business, the investor may count the jobs they are saving as part of the 10 jobs they are required to create.

• Keep in mind: If the troubled business doesn't have 10 employees, you will still have to hire more employees to reach the 10-employee minimum.

• For example: if a troubled business only has 6 full-time employees, then you are responsible to preserve those 6 jobs and create another 4 full-time jobs.

Processing

1. Select an investment!

It is solely your choice! If you need investment advice, you should consider using a Registered Investment Advisor or a Broker/Dealer. Make sure they are competent in the EB-5 program.

2. Invest your funds.

To start the EB-5 application process you must be ready to show that you have invested or are actively in the process of investing your capital into the new commercial enterprise.

3. File the petition form with USCIS.

After you are ready with the documentation and the details, you may file Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor.

Note that you do not need to be in the USA to initiate the application process. 

If you are legally in the USA and an immigrant visa is immediately available to you, you may file Form I-485, Application to Register Permanent Residence or Adjust Status, together with your Form I-526 or Form I-526E, or while they are still pending. To make sure that an immigrant visa is immediately available to you when you file your Form I-485, see the Visa Availability and Priority Dates and Adjustment of Status Filing Charts from the Visa Bulletin pages. Or, just contact us!

4. When your I-526 or I-526E petition is approved, you are eligible to apply for conditional permanent residency (a 2-year conditional green card). This process is different depending on whether you are in or outside the US.

• If you are in the USA, you need to file Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS (if you did not already file it prior to Form I-526 or Form I-526E approval)

• If you are outside USA, you will be properly informed about the approval and will be instructed haw to apply for an EB-5 Immigrant Investor Visa. You will need to complete DS-260, Application for Immigrant Visa and Alien Registration, to pay the application fee,  undergo medical examinations, collect some additional civil documents and to schedule a visa interview.

Note that the visa application process varies between US consulates around the world and depends on their internal regulations.

Once your Form I-485 is approved or upon admission into the United States with an EB-5 Immigrant Visa, you will be granted conditional permanent residence to the EB-5 investor for a two-year period.

Your green card is conditional for 2 years to allow for you to complete the EB-5 requirements. The requirements include the implementation of the investment, creation of 10 full-time jobs, and maintaining an “at risk” investment in the new commercial enterprise for the period of 2 years.

5. Within the 90-day period immediately before the second anniversary of your adjustment of status or admission to the United States you may file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, 

If you meet all EB-5 requirements and USCIS approves this petition, the conditions from your lawful permanent resident status will be removed. 

6.  Naturalization (Optional)

• After you’ve been a permanent resident for at least 5 years, you may be eligible to apply for Naturalization to become a US citizen.

• The 5-year clock starts from when you become a conditional lawful permanent resident.

Everything You Need to Know about Naturalization – link will be added soon. 

EB-5 Family Members

Based on your approved petition, your spouse and minor unmarried children, younger than 21, can also qualify to get their green cards (if in the USA), or to apply for immigrant visas with you. Like you, they must also fill out required application forms, obtain required civil documents, pay the required fees, and undergo medical examinations.

EB-5 dependent children have access to a US education, and spouses have access to the US labor market.

The appropriate documentation accompanying your EB-5 application, whether you are applying for a visa from abroad or changing your status within the U.S., is essential for a favorable outcome. We are available to discuss your situation and assist you in preparing the necessary documentation tailored to the specifics of your case.