Business Specialty Visa Plan Employment-based Fifth EB-5 visa

Employment-based Fifth EB-5 visa

If you are wealthy and would like to move with your family to the United States, then the EB-5 visa, better known as the Immigrant Investor visa, gives you a pathway through investing in selected projects in the United States.
The investment can vary from a minimum of $900,000 if you put your money into a Targeted Employment Area (TEA), to a minimum of $1.8 million for investments in an existing business or starting a new company.

How many EB-5 visas are available?

The US only issues 10,000 Green Cards a year for applicants in the EB-5 category, and since these are spread out over different countries, you may be working with a much smaller quota. If too many people apply from any one country, the excess applicants are put on a waiting list with a “priority date”, which is the date on which you filed the first form.

In practice, the number of EB-5 applicants worldwide has never hit 10,000 so you’re highly unlikely to find yourself waitlisted. Over the last few years, the demand for EB-5 visas from China, Vietnam, and India has been high, leading to waiting lists in those countries. As of mid-2021, there is no waiting period for investors from countries other than China and Vietnam.

Who is eligible for an EB-5 visa?

You are eligible for an EB-5 if you are wealthy, want to invest a significant sum of money into a US business or project, and can show that your investment will lead to the creation of at least 10 full-time jobs for US citizens. That’s a fairly lean list of eligibility requirements but because of the large sums of money and the risks involved, only really wealthy people in a hurry to migrate to the US consider going for the EB-5 visa.

How do you apply for an EB-5 visa?

Applying for an EB-5 visa consists of four broad steps. In simple terms, they are —

1. Find a suitable US-based EB-5 project to invest in
2. Apply for an EB-5 visa once you’ve started the process of investment
3. Get conditional permanent residency for 2 years
4. Apply to have the conditions removed and become a permanent Green Card resident

The EB-5 visas would cover you as the investor, your spouse and your unmarried children under 21 years. Given the complexity of the processes and the large sums of money involved, we strongly recommend that you work with an experienced, professional immigration lawyer through the entire process. A list of carefully vetted, highly recommended immigration lawyers specializing in Green Card visas and processes is a part of your package.

1. Find a suitable US-based EB-5 project to invest in?

Some people think of the EB-5 Investor Immigrant visa as more or less the same as paying a big sum of money to buy your way into the United States. Nothing could be further from the truth. Your choice of project and the viability of your plans are considered carefully by the USCIS. Once you put your money into a project, you are expected to get involved in the management and successful implementation of the project. If your investment does not result in 10 full-time jobs for US citizens, then your EB-5 visa may not be approved.

In other words, wisely choosing your project carefully is a big part of the first step. While choosing your project, keep two criteria in your mind —

1. How likely is this project to meet the US government criteria for investment and boost your chances of getting a Green Card?
2. Will your money be returned to you safely at the end of the stipulated investment period, perhaps even with some growth? What is your risk of taking a loss?

A professional immigration lawyer can play a great role in some of these analyses and decisions. You may invest in an existing project or start a New Commercial Enterprise (NCE). In both cases, you will be expected to participate in the growth and success of the project.

How much money will you need to invest in an EB-5 project?

Expect to invest at least $1.8 million, unless you choose a project in a Targeted Employment Area (TEA), where the minimum is $900,000. TEAs are designated rural or high unemployment areas. You can explore TEAs in an interactive map.

There are two ways to invest your money — Direct Investment; or investing in a Regional Centre.

Direct Investment: This usually involves one investor (you) per project. The project could be an existing company or a New Commercial Enterprise (NCE). You would play a managerial or advisory role for the project and be involved in all aspects of planning and decision-making, according to your EB-5 business plan. You would be directly and actively involved when you choose to go in for a Direct Investment.

Regional Centre: An attractive alternative to finding a project to invest in or starting an NCE is to invest your money in a Regional Centre, an organization approved and regulated by the US Citizenship and Immigration Services (USCIS) to promote economic growth in a specified region.

A Regional Center aggregates investments from many investors each of whom buys equity in an investment fund, which, in turn, is used to back local projects that create jobs. If the idea of being involved in the day-to-day running of the business you’ve invested in does not interest you, then the Regional Center might be your best bet. Here you become a passive investor.

To calculate how many jobs were created by your investment, Regional Centers are allowed to use a formula that takes into account indirect and induced jobs. In other words, the Regional Center will take care of job creation with your money.

Keep in mind, though, that neither of the two kinds of investment carries a guarantee that your investment will meet the job-creation requirement.

Some Regional Centers have ‘exemplar approved’ projects, in which the USCIS has already reviewed and approved the business plan, the econometric calculations for indirect job creation, and the project agreements. If you should choose an exemplar-approved project, your EB-5 petition will generally be processed much faster.

Over 95% of EB-5 investments are made in the Regional Centers. As of January 2021, there were 673 USCIS-approved Regional Centres.

Will you get your money back?

As an EB-5 investor, you would obviously like to know that your money is safe and will come back to you undiminished, or even with some attractive rate of return. However, there is no way to guarantee this other than doing your due diligence and careful analysis before you choose your investment project.

Your investment will remain at risk right till the end date of your two-year conditional Green Card that will be issued to you when your EB-5 petition (known as Form I-526)  is accepted. At that time, you will file another petition on Form I-829 seeking the waiver of those conditions, opening the way to a 10-year Green Card with no conditions.

As an investor, you would like to get your money back just at the time of filing the I-829. However, timing this “exit strategy” can be tricky given the variability of processing time for the I-526.

Also, keep in mind that an EB-5 project that might be better suited to getting you a Green Card will usually not offer a high rate of return. Your choice is to strike a balance between early immigration benefits and higher rates of return.

Once you’ve chosen the project where you want to invest your money, you will request to join a partnership or a limited liability company. Once the Manager or General Partner of that company accepts your request, you will wire the investment funds to an escrow account managed by your appointed escrow agent.

2. Apply for an EB-5 visa?

Once you’ve started the process of investment, you’re ready to file your EB-5 petition, also known as Form I-526 with the USCIS.

After selecting an investment, the applicant will have his or her immigration attorney file your EB-5 petition (known as a Form I-526) with USCIS. The I-526 petition proves that the applicant has invested or is in the process of investing the required capital and that they meet the EB-5 program requirements. Having a professional and experienced immigration lawyer is very helpful in filing Form I-526.

Your I-526 form should include the following —

1 Proof that the money you invested was acquired lawfully. You will need to share both the source and the path of funds.

2 A credible business plan that is compliant with all ‘Matter of Ho’ requirements. ‘Matter of Ho’ refers to a legal precedent in which the court spelled out the requirements of an EB-5 business plan.

3 Proof that your investment will be spent on expenses that help create 10 full-time American jobs.

4 Proof that your investment will be placed “at risk” till the end of the two-year conditional permanent residency, and will be subject to possible gain or risk of loss in this period, without any guarantee that your capital will be returned.

5 Proof that your investment meets current TEA requirements in case you want to qualify for the lower investment amount of $900,000.

The fee for filing the I-526 is $3,675. As fees for different forms are revised routinely, use this Fee Calculator to find out the current rate.

What if your I-526 is denied?

The main question on your mind as an investor would be whether you’d get your investment back if your I-526 was denied. Sometimes this guarantee is included in the offering documents you sign with the American business or project you are investing in. It is in your interest to ensure that the guarantee is signed by someone with the means to make such a repayment to you.

How long does it take to process the I-526?

COVID-19 has negatively affected visa processing times. As of June 2020, the I-526 form had an average processing time of 37.2 months. An expedited petition could take about six months.

You can download the I-526 petition form as well as get details about where to file the form. Since the mail-to destination is reviewed and changed periodically, be sure to check this.

3. Get conditional permanent residency for two years?

Once your I-526 petition is approved, the USCIS sends your case file to the National Visa Centre (NVC), who will contact you with a welcome package that includes your Case Number and Fee Invoices with numbers as well as an online link where you can pay the required fees. In your case, you would be paying for Form DS-260 (Immigrant Visa application) and the simpler DS-261 (contact details).

It may take about a week after paying the fees before you can access Form DS-260, which can only be filled and submitted online. You enter the portal by typing your case number (which you received from NVC). The DS-260 will ask you for biographical information, including previous residences, job history, and military service history, if you have one. Since 2019, it has also been mandatory to fully disclose your social media activity of the last five years.

In due course, the NVC will send you your date for the visa interview. You will also be guided in terms of the documents you will need to carry to the interview, such as birth certificates, passports, and marriage certificate (if applicable).

The visa interview is the last and crucial step. Once you are approved, you will receive a Green Card good for two years which makes you a conditional permanent resident of the US. If your family was included in your application, they too will receive Green Cards. You can relocate to the US, work, travel, study and anything else you like.

During these two years, you will need to be physically present in the US most of the time. You are allowed to travel but if you stay away more than a year, you will need a re-entry permit.

4. Removal of conditions?

The final stage of the EB-5 Green Card process will come towards the end of your conditional two-year permanent residency. You will file a petition using Form I-829 requesting the removal of conditions to permanent residency. In Form I-829, you will show that you have successfully met all the conditions of the EB-5 program.

You will be asked to provide the following documentary evidence along with your I-829 filing—

Conditional permanent resident card

Evidence that you created a new commercial enterprise (NCE), as per federal tax returns

Documentation that the NCE received your capital investment

Documentation showing that the NCE was maintained throughout the two-year conditional residency period

Proof that at least ten full-time jobs were created according to the business plan, as per payroll and tax records

Biometric documentation, including fingerprints, photograph, and signature

It is recommended that the I-829 be filed three months before the conditional two-year permanent residency ends. Not filing the form on time can jeopardize the Green Card process, and you may be denied permanent residency.

There is a $3,750 fee for filing the I-829 and $85 for biometrics connected with the filing. Sometimes the USCIS requests an interview after the I-829 petition is processed.

The good news is that over 90% of I-829 petitions are approved. Once this happens, you, the investor, your spouse and unmarried children under the age of 21 will be issued renewable 10-year Green Cards for living and working in the US.

They will have the option to become US citizens with all applicable rights and benefits five years from the date of being issued the initial two-year conditional residency.

How much does an EB-5 visa cost?

There can be seven or more costs on the way to getting an EB-5 visa —

Form I-526 processing fee — $3,675

Form DS-260 processing fee  – $230

Form I-829 processing fee — $3,750

Biometrics fees — $85

Medical examination fees

Fees to get supporting documents

Any translation fees from foreign language to English

How long will the EB-5 visa processing take?

Expect long waits when you’re trying to secure the EB-5 Green Card. The all-time average wait for the I-526 petition was 37.2 months. That’s long enough, but the true scandal has been over the processing time for the I-829 form for the removal of conditions, which currently ranges between 37 and 248 months. This means that some EB-5 investors have waited 20 years for their Green Cards to be made unconditionally permanent.

Many EB-5 investors have been finding their money stuck in limbo and turned to the federal courts to challenge these delays. For these investors, the pursuit of the American dream is now a nightmare in which they are stuck between countries, residents of neither, with their investments locked up.

Some immigration lawyers have been suggesting an alternative strategy to wealthy applicants — invest in a company outside the US that has a US affiliate, and try to migrate as a transferring executive or manager in the highest priority EB-1 category.

Need more help?

If you still feel that you would like to have professional help in making your application or would like to consult a lawyer who specializes in immigration and visa matters, you can explore some of your options, including how to access our exclusive list of professional immigration lawyers.

If you have questions or would like clarifications, please send us an email and we’ll do our best to get back to you within 24 hours with an answer.