EB-5 Visas

• Q: Are you eligible for a Green Card through the EB-5 immigration process?
• Q: What are the advantages and disadvantages of applying for an EB-5 Green Card?
• Q: What is Filing for Adjustment of Status/Consular Processing when I am on an EB-5 visa?
• Q: How do I apply for the EB-5, Immigrant Petition (I-526)?
• Q: Once I have an EB-5 visa, do I have to file for the removal of my Conditional Residency (I-829)?
• Q: What is the EB-5 Job Creation Requirement?
• Q: What are the steps to set up an EB-5 investor Visa Regional Center?
• Q: What are the EB-5 Targeted Employment Areas (TEAs)?
• Q: Can I change my EB-5 business plan?
• Q: What are some common EB-5 definitions?

A: Green cards through the EB-5 immigration process are only issued to people who have the ability and the resources to invest a minimum of $1 million to create and start a business in the U.S. or to expand an existing one. Where you get the money from does not matter. For example, if you get this amount in the form of a gift or an inheritance then it is fine, but it is important that you obtain the sum of money via lawful means.

However, the minimum amount needed to be eligible for the immigration process can be reduced to half, i.e. $500,000, but this happens under specific circumstances. The USCIS is also authorized to increase the amount of minimum investment. For instance, it can raise the amount to $2 million. But this only happens when the applicant is intending to invest in an area that is economically strong and thriving and has a low unemployment rate. However, currently, the USCIS policy states that the minimum amount will not be raised purely in the above-mentioned scenario.

It is also necessary that the business that you intend to set up in the U.S. should at least employ 10 full-time workers (this figure does not include independently hired contractors). The workers you hire should work to perform a service or aid in the creation of a product from which the economy of the U.S. would benefit. The full-time workers you hire must at least work 35 hours per week.

The investor’s family members, for example his/her spouse and children, will not and cannot be counted as ‘employees’ of that business. That being said, investors can hire other family members; for example, brothers or uncles. Also, the ten employees that the investor hires do not have to necessarily be U.S. citizens. In case they are non-citizens, they must have a valid non-immigrant visa.

Workers who are U.S. citizens or those who have a Green Card can also be employed by the investor. It is important to remember that you cannot just send the required sum of funds and just relax and wait patiently for the Green Card. You have to be consistently be engaged in the business either by becoming the supervisor of operation or a policy reformer for the company.

Passive investments, for example land speculation, cannot be deemed eligible for a green card in this group, except if the sum of money required is lowered due to any specific circumstance. This is at the total discretion of the USCIS.

The EB-5 applicant must invest his/her money in a commercial enterprise. You have the choice of either starting a genuine company or buying an existing one. You can buy businesses that were formed after November 29, 1990. You can also acquire a business, re-organize, and structure it to form a new business entity.

However, there are two exceptions to the rule mentioned above - that it is necessary to invest in a new commercial business. The first one is that you can buy a current commercial business entity and expand it. Here, you would have to either hire more employees or increase the capitalization of the business by 40%. But first you will have to invest the required amount of money in the business and hire at least 10 full-time workers.

The second exception deals with the fact that you can also invest in a sinking business and save it from shutting down. But, to do this, you will have to prove that the business you are investing in has been in business for at least two years and that it has been incurring a 20% annual net loss at a certain point over the 2 years, driving it towards being acquired.

In order to do this, you will still have to invest the required amount, but in this case you will not have to prove that you have hired 10 full-time workers. Instead, you will asked to show, from the two years after you bought the business, that you have successfully employed the services of as many people as there were employed when you first invested in the business.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

Back to the Top

A: Here are some pros and cons of applying for an investment-based green card:

USCIS rejects more EB-5 green card applicants than it accepts. That is primarily due to the fact that the requirements for eligibility are extremely narrow and also because of this particular category’s misuse in the form of fraud. Lawyers of various investors in this category advise their clients to invest a part of their wealth strategically that would allow them to fit themselves in to a different category that has a good chance of success. For instance, by investing the required sum of money in a business that is located outside the U.S. but has an affiliation, an applicant may stand eligible to immigrate to the U.S. as an executive of the company or as the manager.

As long as you have the finances to fund your investment and show that you are currently in the process of investing the money in a profitable venture, you do not necessarily have to be qualified in a specific area of business. Nor is it necessary that you have a certain amount of experience.

The law does not even prohibit applicants entering from a specific group of countries, although the immigration authorities have full discretion whether to deal with people coming from countries that have had a history of fraud with suspicion or not.

You have the choice of selecting where you want to invest in the U.S. But on one condition: you will have to prove that you can sustain your investments for 3 additional years and that you will actively engage in matters concerning your business.

After the 3-year time limit passes, you have the choice of either working for some other company or sit back and relax at home doing nothing. You should understand that should you live in the U.S., you will not be allowed to use your green card for travel or work purposes.

Green cards will be provided to your spouse and your unmarried children who are under the age of 21 as relatives. Initially, your green card will only be restrictive, that is it will carry a 2-year expiration date after which you will have to apply for renewal.

It is important to realize that if you misuse your green card, it will be taken away from you without warning. For example, if you reside outside of the U.S. for an extended period of time, take part in a crime ,or fail to issue a notification to the U.S. immigration services that you have changed addresses, you may be deported without warning.

However, if you live in the U.S. with your green card for 5 consecutive years, which includes the two conditional years, you will be eligible to apply for U.S. citizenship.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

Back to the Top

A: Once an EB-5 visa applicant has been granted his I-526 approval, he can now apply for the Conditional Permanent Residence through either the consular processing or filing an I-485 Form. Here are the conditions for filing for Conditional Permanent Residence:

If You Reside Outside the U.S.

Through the consular processing programs, you can apply for permanent residency in the U.S. even if you do not live in the U.S. Consular processing initiates when the two governing bodies, the USCIS and the U.S. Department of State, work together to issue a residency visa, provided that your I-526 Form (Immigrant Petition by Alien Entrepreneur Petition) is approved when the visa is available.

As of 2014, the EB-5 visas have been made available without delay. However, because of the fact that there has been a significant increase in the demand for EB-5 visas, the number of visas is assumed to be returning to their original state by the end of 2014 or at the start of 2015.

The period of consular processing is between 6 months to a year and the timeline is at the total discretion of the office undertaking it. The consular process involves and requires an interview for visa, biometrics, vital documents, and a medical checkup by a Department of State Panel Physician. The state allows the family members (spouse and kids under the age of 21) of the primary applicant to go through the consular processing at the same time as him.

If You Reside in the U.S.

You can also apply for the conditional permanent residency program via an adjustment of status if you reside in the U.S. But, it also requires an approved I-526 Form when a visa number is available. Once you have the visa number and the I-526 Form approved, you can then apply for change in status using the I-485 Form, which is the Application to Register Permanent Residence of Adjust Status.

The adjustment of status process requires one file per applicant residing in the U.S. with the USCIS. The spouse and the children (under 21) can also apply for the adjustment in status in tandem with the EB-5 visa applicant if his family is already living in the U.S.

The processing time for applying within the U.S. can by anywhere between 6 months and 1 year. Depending on the acceptance of the I-485 Form and an approval of admission on the EB-5 immigrant visa, the investor and his family (spouse and kids) are given 2 years of conditional permanent resident status. Note that the children of the primary applicant should be under the age of 21 and unmarried in order to be considered derivatives when the I-526 Form is filed.

Usually, when the applicants get the 2-year conditional permanents residency, there is a lot of confusion regarding when the 2-year period starts in which the primary applicant must uphold his job requirement. As per the memo published by the USCIS “AF M Update AD 09-04”, the 2-year period begins 6 months after the settlement or arbitration of the I-526 Form.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

Back to the Top

A: The procedure for the EB-5 immigrant visa is divided into three steps. The person applying for the visa is the one who has to file a petition for it. This includes the Forms I-526, the I-485, and the I-829.

The first step is filing the I-526 Form. This officially declares the applicant’s intention to invest in the U.S. The filing fee for the form is $1500, which has to be paid to the USCIS. Then, apply for adjustment in immigrant status through the I-485 if the primary applicant is in the U.S. But, if the primary investor is living outside the U.S., then he must go through consular processing.

Both I-526 and I-485 Forms cannot be concurrently applied for. You have to show that you have indeed invested the sum of money required for the EB-5 visa in a company that operates in the U.S. And, you will have to show that the money you have invested will be sufficient to create 10 full-time jobs for workers in the U.S.

Mentioned below is general evidence you have to show for the entire process:

• Evidence of the investor’s enterprise including past three years worth of tax returns

Proof for Lawful Capital:

• Tax returns filed in the past 5 years, whether as a corporation, a partnership or as an individual.
• Records and registration of international business or any other documents revealing source of capital.
• Other evidence of the income of the investor over the past few years.
• Any monetary judgments the investor has been subjected to over the past 15 years have to be proved.
• Sales agreements, if the funds to be invested in the U.S. have been secured through the sale of an asset.
• Bank statements, proof of transfer of property from overseas, proof of assets bought, certificates of stocks issued for investments, and loan documents.

Proof Pertaining to the Required Investment

• Proof of everyday operations of the investor and day to day proceedings of the investor’s enterprise.
• The full description and title of the investors and his responsibilities pertaining to his enterprise.

Proof Pertaining to the Employment of 10 U.S. Workers or a Solid Business Plan that will Result in the Employment of 10 U.S. Workers:

• If the investor has hired workers, he should provide I-9 forms and tax records of the employees.
• If the investor has not employed 10 workers yet, he should provide a viable business plan that will result in the employment of 10 workers within the next 2 years.

If The Applicant Of The EB-5 Visa Is In The Category That Requires A $500,000 Investment:

• Proof that the business plan will develop a targeted area of employment and that you will hire 10 workers in the U.S.
• Statistical evidence that the area of employment you are targeting indeed has a high employment rate and a letter issued by the state agency showing that the area is classified as a high employment region.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

Back to the Top

A: Within 3 months of the expiration date of the 2-year conditional green card of an applicant, it is required that the investor files the I-829 Form. The form is necessary to request deletion of ‘conditional permanent residency.’ Along with this form, the investor must also pay a filing fee of $3,835 USD. The spouse and children of the primary applicant can also file for the I-829 Form concurrently. However, the investor will have to pay a separate biometrics fee ($85) for his family.

The request for removal will be determined within 90 days of filing. The petition will be allowed if the primary applicant successfully meets all the requirements of the EB-5 in relation to the business plan which has to be approved via the I-526 petition Form. In case of failing to successfully file for the I-829 Form, immediate termination of the conditional resident’s status will be exercised and the primary applicant along with his family may be deported.

Alien investors and immigrants applying for the EB-5 visa are given a ‘valid’ status until their petition, via the I-829, is being filed and approved. The applicant’s status is also subject to an automatic extension in one-year increments until the USCIS considers the petition. During the time they are waiting for the petition to be authorized, investors are allowed to travel.

When the conditions are removed, the applicant and his derivative family are given a full green card and are indefinitely considered U.S. residents. The investor can then also apply for U.S. citizenship 3 months before the fifth anniversary of the applicant’s permanent status. This includes the two conditional years. However, in order to apply for U.S. citizenship, it is first important to meet other requirements pertaining to the case. The applicant must show:

New Commercial Enterprise

• Proof that he developed a new enterprise by sending copies of important documents pertaining to your business, for example federal tax returns, etc.
• Evidence that you invested the exact amount of money required as per the EB-5 immigrant visa requirements.
• Proof that you maintained your investment in the new business that you have created through the two-year conditional residency given to you. You must do this by declaring your business invoices, receipts, bank statements, contracts, copies of federal income tax return, etc.

Troubled Business

If you plan to invest in a troubled business, you must first show proof mentioned above under the New Enterprise Commercial option, but here you would also need to provide evidence ascertaining that your business has at least sustained 10 existing jobs as opposed to 10 jobs being offered. A troubled enterprise is defined as a business that has been functioning for at least 2 years and has suffered a net loss of 20% per year during the preceding 2-year period.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

Back to the Top

A: It is important for the applicant of the EB-5 visa to at least create 10 jobs in the U.S. through his funding in order to get a successful EB-5 petition. An ‘employee’ is someone who works or provides certain specialized services in exchange of getting paid for providing that service. In order to qualify for the EB-5 visa, the applicant must hire at least 10 workers on a full-time basis, which means a minimum of 35 hours worth of work per week. Note that independent contractors cannot be included in the ‘full-time’ category. Also, non-immigrant workers who have E, H, L, and other short-term workers’ visas cannot qualify to work full-time for an EB-5 petitioner and are not considered official U.S. workers.

Furthermore, an EB-5 investor cannot hire his derivative family, i.e. his spouse or kids who are under the ages of 21. However, the investor can employ his brothers or uncles or other relatives as full-time workers. However, the investor is not required to immediately start hiring 10 people as soon as the investment is made. They may ask for time by providing an argument pertaining to the scope of the business and how it will help to generate 10 jobs in the area.

If the investor plans to invest his money in a troubled business in the U.S., where a company has been incurring a 20% net loss for the past two consecutive years, the numerical requirement of creating a job does not change. Rather, instead of hiring 10 workers, the investor will need to retain or preserve 10 jobs from within that business.

The Regional Center Program permits the applicant to stand eligible for an EB-5 green card by either hiring 10 legitimate people, directly or indirectly. USCIS describes creating direct jobs as those that result in developing an employer and employee relationship between the newly formed commercial business and the people who are newly employed.

USCIS now takes into account direct and indirect jobs created by the investor that last for two years or more. This counts towards the job creation for EB-5 investors.

Proof Required for Job Creation

In order to prove that a new commercial business will create at least 10 full–time jobs in the U.S. employing qualified and legitimate workers, mentioned below is what an immigrant investor must provide as evidence:

• Authentic documentation consisting of tax record photocopies, the I-9 Form, and similar paperwork for all ten newly employed workers.
• If the workers have been hired immediately following the establishment of the new business, the investor must provide a copy of a complete business plan identifying the whole nature and size of the business enterprise and why the business would require no less than 10 full-time workers.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

Back to the Top

A: Businessmen and entrepreneurs in the U.S. desire to create their own regional center to benefit from USCIS pilot programs so that they can entice foreign investors to invest in potentially profitable ventures. The advantage of creating a regional center to get foreign investment provides a number of opportunities for the entrepreneur to accept large investments from across borders from investors who do not think that they can get a higher return on their investments.

Most foreign investors invest for the sake of becoming a permanent resident of the U.S. Moreover, the expenditure for establishing a regional center can be considerably low as compared to the center’s associated costs. There are a total of 400 regional centers in the United States. According to the definition provided by the USCIS, a regional center is a sort of economic unit, private or public, dedicated to promoting economic growth throughout the country. They aid in improving regional productivity, creating jobs and increasing domestic investment.

It is important to have a team of professionals accompanying you throughout the entire business plan and the various I-924 applications and stages:

Immigration Attorney:

To confirm the investor’s business plans and all the documents with the USCIS policy along with reviewing and making sure all the documentation is authentic.

Bank Escrow Agent:

To provide protection for the investor’s money till the approval of the EB-5 application. The bank escrow agent will hold the funds under the investor’s name and return them if the application is rejected.

Economist:

For evaluation and forecasting of direct and indirect job creation, project the targeted employment area, etc.

Business attorney:

To offer certified documents, PPM, subscription agreement and lay out the potential risks of the investment (if any).

The entrepreneurs who are forming a regional center should also design a well-defined business proposal which has [AFM 22.4(a) (2) (B)]:

1. A nearby geographical region for the center which is well thought out and defined in the proposal.
2. A meticulous description of how the investor’s EB-5 funds may affect the mentioned geographic region and lead to the creation of 10 jobs, directly or indirectly.
3. A comprehensive evaluation and speculation of the proposed center’s potential to create future jobs, an increased demand for better services, utilities, maintenance and repair and construction done on both the outside and inside of the geographical region.
4. Detail of the plans to implement, control and supervise the Regional Center including how it will:
   • Promote and entice potential EB- investors, also including the budget for the center’s marketing.
   • Evaluate, assess and establish the proposed foreign investor projects and enterprises.
   • Structure its investment capital.
   • Manage and control the investments associated with or through or under the sponsorship of the Regional Center.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

Back to the Top

A: According to the EB-5 alien investor’s program for immigration, if the investor decides to invest in a Targeted Employment Area, his funding requirement can be reduced to $500,000. Targeted Employment Areas (TEAs) are areas that are defined as (at the time when the initial investment is being made by the immigrant investor) rural. This means that the area in which the business will be established is located outside the metropolitan statistical area which is designed by the Office of Management and Budget, or if the region lies outside of the bounds of the city limits or towns which have a population of 20,000 or more according to the decimal census.

It can also be defined as an area which is (at the time of investment) an economical region which has an unemployment rate of over 150% the national average. This is one of the main reasons why Congress supports and motivates foreign investors to put their funds in an area that is in economic shambles. The investments can potentially create a lot jobs for the people residing in the area. This will bolster economic growth and lead to the creation of a numerous jobs.

Moreover, the new commercial business should be ‘principally doing business’ in the Targeted Employment Area. This means that the business should be conducting continuous business, systematically manufacturing goods or producing services that support employment in the area. Even if the new business entity manufactures goods and services in more than one area, it will be considered as ‘principally doing business’ in the area where the chances of the rate of unemployment decreasing are high.

According to a resolution named ‘Matter of Izummi’ made by the Administrative Appeals Office (AAO) of the USCIS, the factors that may be taken into account to determine whether or not the new commercial business is ‘principally doing business’ in the TEA consists of: the location of the job created directly by the new enterprise, the location of the costs of capital pertaining to the creation of jobs (where the new business carries out its day to day operations), and where the new business sustains and manages its assets that are invested in the creation of jobs in the U.S..

Different states may give out particular TEAs to immigrant investors, provided the fact that the areas specified meet the USCIS regulations and requirements for rural or high employment regions. USCIS defers to the various determinations made by the state pertaining to the correct boundaries of a geographical or political subdivision that divides the targeted area of employment.

To aid immigrant investors in finding suitable TEAs, the states of California and Washington categorically list the names of all TEAs on their state websites.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

Back to the Top

A: A petitioner cannot substantially alter his business plan regarding his new commercial enterprise after the immigrant investor has filed his I-526 Form. That is because the I-526 Form serves as grounds for approval for the I-829 Form, even if the immigrant investor has met all the stated requirements. However, if the immigrant investor has a desire to alter his business plan from the preliminary one, which is outlined in the I-526, the immigrant may file another I-526 Form with a new business objective along with the all the necessary requirements. Once an immigrant files a new form, the following can happen:

• If the new I-526 Form is petitioned before the immigrant adjusts the status or if he is issued an immigrant visa, the new form will be grounds for the approval for the I-829 Form. If the new I-526 Form is applied after the immigrant adjusts his status or is issued a visa, but before the end of date of the I-829 petition, the immigrant may file for the I-407 along with Form I-485. USCIS will then end the immigrant previous conditional permanents residency. If the new I-485 is accepted, the immigrant will be granted a new 2-year Conditional Permanent Residency.
• If the new I-526 is petitioned after the immigrant adjusts his status or if the immigrant is issued an alien visa or after the end date of the I-829 petition, the new I-526 is accepted. The immigrant may also ask for the withdrawal of the initial I-829 petition and petition for a new AOS application.
• If the new AOS is permitted, the immigrant will be issued a new two-year CPR. The new I-526 petition will be a solid basis for the approval for the I-829. However, if the new filing is denied, the I-829 may or may not be approved based on the original I-526.

USCIS recognizes that an immigrant may make his investment in a TEA either in a rural area, where unemployment is high, or in an area with poor economic growth, before petitioning the I-526. In this situation, the immigrant investor has to prove how the targeted area of employment was deemed to be qualified before the initial investment was made.

Moreover, by the time the immigrant investor petitions his I-829 Form, the region of investment may lose its eligibility as a targeted employment area. This is because the main objective of the EB-5 program is to create new employment opportunities for U.S. workers, so an increase or decrease in population, size, or unemployment is acceptable and does not in any way hinder the application.

Furthermore, by the time the investor files an I-829, the area of investment may cease to qualify as a TEA. As increased job creation is the main goal of the EB-5 program, changes in population size and unemployment are acceptable and do not affect the removal of conditions.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

Back to the Top

A: The EB-5 immigrant investor program for visa is an amalgamation of business and the immigration law for alien investors. Mentioned are some definitions of terms pertaining to both the business and the immigration aspect of the EB-5 visa (Note, the definitions are provided by the USCIS):

"Capital"

The basic meaning of this term is cash, equipment, inventory, real estate, and other tangible assets, cash equivalents that are owned by the immigrant investor. However, it is imperative that the immigrant investor must provide evidence that the capital he wishes to invest is his own and that he has lawfully obtained it and that the entrepreneur is solely liable for the investment he is going to make for the new business entity as bound by EB-5 regulations. The investor’s capital will be valued at a fair market price equivalent in U.S. dollars. This removes any discrepancies or variance in investment when converting from one currency to the other. Moreover, it also ensures that the investment is valued at a fair price.

"Commercial enterprise"

Commercial enterprise stands for a for-profit entity established for the proceeding administration and running of a lawful business organization which includes, but is not limited to, a sole proprietorship, partnership (general or limited), a holding company, joint venture, corporation, business trust or any other form of business entity which can be owned either publicly or privately. The definition of the term also covers a commercial enterprise that includes a holding company and its fully owned subsidiaries, provided that every subsidiary is engaged in a for-profit business operation which has been primarily established for the constant operating of a business which is by all means lawful.

This definition does not include a non-commercial or non-profit activity, such a buying and managing a private residence. Constitutional modifications have provided affirmation (as if it cannot be any clearer by the above-mentioned regulatory tone and terminology), that a limited partnership developed in pursuance with the Uniform Limited Partnership Act of the state should be certified as a ‘commercial enterprise,’ and Matter of Izummi, one of the guiding AAP cases, has made it clear that the commercial enterprise can be operated by lending activity in the framework of a Regional Center.

"Employee"

The meaning of employee here pertains to an individual who will provide certain services for your newly formed business enterprise in exchange for full-time wages and/or other forms of remuneration, straight from the new commercial business. In the scenario of the Immigrant Investor Pilot Program, ‘‘employee’’ also means an individual who provides labor for a job that has be created indirectly through the immigration investor in the new business. This definition does not include freelance workers and independent contractors.

For detailed information on the options available to you and for expert help on your immigration process, you should contact our office and speak with our experienced and professional attorney.

Back to the Top