What is an EB-5 Visa?

The EB-5 Visa was created by the Immigration Act of 1990. The EB-5 Visa provides a method of obtaining a Green Card for foreign nationals who invest money in the United States. To obtain an EB-5 visa, individuals must invest at least $500,000 USD in a project or business within a Targeted Employment Area (see below for more details) and create at least 10 jobs through that investment.

What is a Regional Center?

The EB-5 Regional Center Program began in 1992. A “Regional Center” is a United States government approved entity dedicated to the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment of a region. EB-5 Regional Center projects must meet the requirements set forth by USCIS.

What is a Targeted Employment Area?

USCIS defines a Targeted Employment Area (TEA) as an area which, at the time of investment, is a rural area, (not within either a metropolitan statistical area (MSA), as designated by the Office of Management and Budget, or the outer boundary of any city or town having a population of 20,000 or more), or an area within an MSA or the outer boundary of a city or town having a population of 20,000 or more which has experienced unemployment of at least 150% of the national average rate.

Who are EB-5 Investors?

EB-5 investors can come from any country outside the United States and can even include people who are in the United States legally under a temporary visa. In 2013, over 70% of all EB-5 investors have come from China, Middle East, and South America.

What are EB-5 requirements?

In order to qualify for an EB-5 Visa, an investor must invest at least $1,000,000, or $500,000 for a project in a TEA, in an enterprise that will create at least 10 new full-time jobs for U.S. citizens and legal residents. If the project is an existing business, the 10 new jobs have to be in addition to the existing jobs in the business.

Why an EB-5 Visa?

– Direct route to permanent residency in the United States
– Freedom for Investor and family to live, work and retire anywhere in the U.S.
– Investor & their families may attend college or university at U.S. resident costs
– Investor & immediate family may travel to and from the U.S. without a U.S. visa
– Route to U.S. citizenship after USCIS requirements are met
– Ability for Investor to sponsor Green Cards for family members
– Investor receives all benefits of U.S. permanent residency status

EB-5 Details

The EB-5 “Direct” Visa was created by the Immigration Act of 1990. This program provides a method of obtaining a Green Card for foreign nationals who invest money in the United States.

Initially, under the original EB-5 “Direct” Visa, the foreign investor was required to create an entirely new commercial enterprise; however, under the EB-5 Regional Center Program, investments can be made directly in a job-generating commercial enterprise (new, or existing – “Troubled Business”) through 3rd party-managed investment vehicle (private or public), which assumes the responsibility of creating the requisite jobs. Regional Centers may charge an administration fee for managing the investor’s investment.

To obtain the EB-5 “Direct” Visa, individuals must invest $1,000,000 (or at least $500,000 in a “Targeted Employment Area” – high unemployment or rural area), creating or preserving at least 10 jobs for U.S. workers, excluding the investor and their immediate family. If the investor’s petition is approved and the U.S. consulate issues the visa, the investor and his/her spouse and unmarried children under the age of 21 will be granted conditional permanent residence that is valid for two years. Within the 90 day period before the conditional permanent residence expires, the investor must submit evidence documenting that the full required investment has been made and 10 jobs have been created or will be created within a reasonable time period.

Regional Centers

A Regional Center is any economic entity, which has been designated by USCIS to be involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment.

The EB-5 Regional Center Program was created by Section 610 of Public Law 102-395 on Oct. 6, 1992 and has been extended through September 30, 2015. The EB-5 requirements for an investor under the EB-5 Regional Center Program are essentially the same as in the original EB-5 “Direct” Visa. The difference is that the EB-5 Regional Center Program provides for investments that are affiliated with a “Regional Center.” Investments made through Regional Centers can take advantage of a more expansive calculation of job creation including direct, indirect and induced jobs.

In order to receive a designation to become a Regional Center, organizers must submit a proposal showing:

  • How the Regional Center plans to focus on a geographical region within the United States and promote economic growth in that region.
  • How, in verifiable detail (using economic models), jobs will be created directly or indirectly through capital investments made in accordance with the Regional Center’s business plan.
  • The amount and source of capital committed to the Regional Center and the promotional efforts made and planned for the business project.
  • How the Regional Center will have a positive impact on the regional or national economy.

EB-5 Regional Center Program

The requirements for the EB-5 Regional Center Program, which allows for the immigration applicant to create a new business through a designated Regional Center, are as follows:

  1. Investment must be made in a new business (created after 1990) or a business that was substantially reorganized or restructured after 1990.
  2. The individual must invest either $500,000 or $1,000,000 of capital into that business depending upon the area in which the business is located. ($500,000 is only sufficient if invested in areas considered as “targeted employment areas”).
  3. Business results must benefit the U.S. economy and create direct, indirect, or induced employment for at least 10 U.S. workers.
  4. The new business owner (the immigration applicant) must actively participate in the management of the new business, which may be accomplished by being a limited partner or member in the new business.
 

Targeted Employment Areas

A targeted employment area (“TEA”) is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.

A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.

Capital Investment Requirements

The investor is required to invest a minimum of $500,000 for investments in a new business located within a TEA. This $500,000 amount is the minimum allowed by the United States law to qualify for the EB-5 Green Card in a TEA.

As per federal guidelines, the EB-5 investment must be made “at-risk”, and any guarantee of return of capital is strictly prohibited. If given, the guarantee negates the ”at-risk” requirement of the EB-5 law, and the investor’s petition will be denied.

Note: Investment capital cannot be borrowed.

EB-5 Benefits

The EB-5 Regional Center Program is the most flexible in the world. The EB-5 Visa sets no requirements for age, business training and experience, or language skills. Additionally, those immigrants who have entered the U.S. on an EB-5 Visa are able to travel to and from their home country during the course of the conditional lawful permanent residency status. They can even maintain business and professional relations in their country of origin, as long as it is not under U.S. sanctions. Generally, as a permanent resident, the investor and his or her family are free to return to their homeland for visits or business purposes, as long as they do not intend to abandon their residence in the U.S.

The EB-5 Regional Center Program also allows investors a great deal of freedom because it does not require immigrant investors to manage their investment on a daily basis, but rather, to ‘actively engage’ in a business enterprise, meaning they can be limited partners and pursue other professional or personal ventures. Moreover, should the investor and his or her family elect to become U.S. citizens, the time spent as conditional permanent residents is credited towards the five year lawful permanent residency requirement for U.S. citizenship.

EB-5 Visa Benefits

  • Direct route to permanent residency in the United States for Investor, his/her spouse, and any unmarried children under the age of 21
  • Freedom for Investor and family to live, work, and retire anywhere in the United States
  • Investor and his/her spouse and children may attend college or university at U.S. resident costs
  • Investor and immediate family may travel to and from the United States without another visa
  • Route to U.S. citizenship for Investor and immediate family after meeting the USCIS requirements
  • Ability for Investor to sponsor Green Cards for family members
  • Investor receives all benefits of U.S. permanent residency status, including ability to develop and run his/her own business
 

Reduced University Tuition

One of the main benefits of obtaining lawful permanent residency within the United States is that you and your immediate family will be able to attend any university in the United States and pay tuition fees the same as any United States resident, not as an international student. This would mean an average saving of over $85,000 per person enrolled in a university that is located within the state in which they reside. A family with four children enrolled into university that they reside in would save well over $300,000 in tuition fees depending on the university that their children are enroll in. Check the below chart for further details.

EB-5 Process

There are standard steps that investors must complete to become U.S. permanent residents through the EB-5 visa program. Once these steps have been completed, EB-5 investors, their spouse, and their unmarried children under the age of 21 become U.S. permanent residents. They will even have the option to apply for U.S. Citizenship 5 years after obtaining their permanent residency.

Step 1: Locating an EB-5 Project

The preliminary step is for the EB-5 applicant to find a suitable business project to receive their investment. EB-5 business projects generally take the form of either an individual commercial enterprise or Regional Center projects. Overseas migration agents often help EB-5 investors locate the project that best suits their needs. Applicants must also ensure that they meet accredited investor income requirements in order to move forward with the EB-5 process.

Step 2: Capital Investment and I-526 Petition

The second step of the EB-5 visa process is for the applicant to make the required capital investment amount in the project that they have chosen and verify the source of funds. This typically involves the assistance of an accountant to ensure that the $500,000 or $1,000,000 amount has either been invested or is in the process of being invested in their EB-5 project. These investments are often made into an investor holdings account. Then an immigration attorney provides proof of this investment by filing an I-526 petition with the USCIS. The USCIS typically informs applicants whether or not their I-526 petition has been accepted after 12 to 16 months.

Step 3: Two-year conditional permanent residency

The third step of the EB-5 application process is for the applicant to become a two year conditional resident of the United States so they can put their EB-5 project investment to work. EB-5 investors are eligible to become U.S. conditional residents once their I-526 petition has been approved by the USCIS. Residency can be attained in one of two ways. If the EB-5 investor already has lawful status in the U.S., then they must file form I-485 to adjust their status to conditional permanent resident. If the investor does not already have U.S. status, then they must file for an immigrant visa by submitting form DS-260 to the National Visa Center and must process through the U.S. consulate or embassy in their home country. Both of these steps typically require the help of an immigration attorney and the immigrant visa is issued on average in 6 to 12 months.

Step 4: Unconditional permanent residency and the I-829 Petition

The last step in the EB-5 visa process is for the applicants to become unconditional permanent residents by removing their two year conditional status. The I-829 petition is submitted to the USCIS 90 days prior to the anniversary of the date that the applicant first received their conditional residency. This application proves that the investor has met all requirements of the EB-5 visa program. The USCIS most often issues a green card 6 to 8 months after the I-829 has been submitted. The investor, their spouse, and their unmarried children under the age of 21 can then permanently live and work in the United States and have the option to apply for U.S. citizenship after a 5 year period from the date they received their initial conditional residency.

EB-5 Investor Green Card

The EB-5 visa provides a permanent path to the U.S. The economic and political security provided by the EB-5 visa, and the ability to apply for one immediately, makes it an ideal path for those with the financial means and desire for U.S. permanent residency or citizenship.

Through this EB5 green card program, you and your family will receive green cards and will be able to live anywhere in the USA. Your children can attend all American schools, colleges and universities under this program.

The visa-holder has the lifelong right to live and work in the United States without restriction. The EB-5 visa offers a relatively quick, sure and painless path permanent U.S. residency and citizenship.

Key attributes of the visa include:
  • A $500,000 minimum investment is required
  • EB-5 investment capital can come from any lawful source, including gift, loan, sale of property, pension, inheritance, etc.
  • Spouse and unmarried children under age 21 receive their own EB-5 visas.
  • Funds can be provided via loans, sale of property, inheritance, gifts or any other legal source.
  • The investment must create 10 new direct or indirect jobs in the U.S.
  • Your investment can be passive with no requirement for day-to-day management.
  • No additional investment is necessary or material change is permitted from investment project submitted with visa application.
  • Exit strategies from investment are available once employment figures are verified.
  • The investment may be secured or speculative, as long as the capital is technically at risk.

EB-5 Visa Investor Services

Attorney Kate Stelmakh always remains personally involved with her clients in all stages of the EB-5 Visa Investor green card process, including the filing and preparation of all documents.

To ensure our EB-5 Visa clients attain their green cards in the safest manner possible, attorney Stelmakh leads a team of exceptionally qualified and experienced corporate attorneys, business planners, economists, certified public accountants, and securities attorneys.

The following steps are carefully coordinated with oversight from our entire team of attorneys and professionals.

Steps to obtaining Green card

Step 1: EB-5 Visa Investor receive information on the EB-5 program and an Accreditation Questionnaire.

Step 2: Our team provides to the investor a Confidential Offering Memorandum describing in detail the proposed investment project.

Step 3: Upon acceptance of the project, EB-5 Visa Investor signs the Subscription Agreement and other requested documents and provides financial background information. Then the EB-5 Visa Investor deposits US$500,000 in a secure escrow account and pays an administrative fee.

Step 4: Attorney Stelmakh then prepares and files an I-526 Petition with United States Citizenship and Immigration Services(“USCIS”).

Step 5: If the I-526 Petition is approved, the US$500,000 in the secure escrow account is unconditionally released and invested into the Regional Centers development project. If the application is denied by USCIS, the full US$500,000 investment is promptly refunded to the investor from the secure escrow account.

Step 6: Following approval of the I-526 Petition, the EB-5 Visa Investor will be given a U.S. Consular Interview in the investor’s home country or if the investor resides in the U.S., receive an adjustment of status. Following the interview, the EB-5 Visa Investor and family members enter the United States to receive a conditional green card.

Step 7: Upon receipt of the conditional green card, the EB-5 Visa Investor and family are free to live anywhere in the United States with unrestricted travel and work rights.

Step 8: After two years, Attorney Stelmakhfiles an I-829 Petition on behalf of her EB-5 Visa Investor to make the investor’s green card permanent, rather than “conditional.”

Step 9: Upon approval of the I-829 Petition, the conditional status of the green card is removed and the investor’s green card is deemed permanent.

Step 10: After 5 years of issuance of the conditional green card, and maintaining the full investment in the Seattle Area Regional Center, the investor and family may apply for U.S. citizenship.

EB-5 Requirements

Do I have to speak English?
No. However, do try to learn English as it will help in an immigration interview.

Do I have to be in good health?
Yes. You must have no communicable diseases and proper vaccinations.

Do I have to have previous business experience or education?
The investor is not required to have any prior business experience. Likewise, the investor is not required to demonstrate any minimum level of education. The only requirement for the investor is that he/she has the required net worth and capital. (Accreditations)

What does it meant that the investor’s assets be “lawfully gained”?
Under USCIS regulations, the investor must demonstrate that his assets were gained in a lawful manner. This requires the investor to prove his investment funds were obtained through lawful business, salary, investments, property sales, inheritance, gift, loan or other lawful means.

Can money gifted by a parent or other relative be used for an EB-5 Investment?
Yes, provided that any applicable gift taxes are paid. It must be demonstrated that the gift is an actual arms length transaction and is not a mere ruse that the gifted funds will be given back after permanent resident status is granted.

Can I apply for an EB-5 if I have been rejected or terminated in the past by USCIS for an L-1, E-2, B, or other visas?
Rejection in the past does not disqualify the applicant, unless the reasons related to immigration fraud or other major problems. It is most important that all criminal, medical, or U.S. immigration history problems be disclosed to the Regional Center and legal counsel in advance of application.

Can I apply if I am currently without a valid visa?
Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. They must first return to their country of origin and apply through the United States Embassy there. Examples of “out-of-status” individuals are students, tourists, and E-2 treaty investors who no longer have valid visas because they remained in the U.S. after their visas expired or were revoked. Use extreme caution.

Are there any countries excluded from eligibility for the EB-5 Visa program?
No, there are no countries that are directly bared from participating in the EB-5 Program, however there are countries that do require additional licenses in order to invest. Please consult with your attorney for further information.

Is dual citizenship allowed under this program?
Maybe. The U.S. allows dual citizenship, but your original country of origin may not allow it. You will need to investigate this.