The EB-5 Visa – Path to Green Card. Part One: Direct Investment

The EB-5 program gives visas to foreigners who are willing to invest at least $500,000 in approved projects.  An investor who can show that a project creates or preserves at least 10 jobs can get a green card and eventual citizenship.    

This investor-visa program called EB-5 has been so popular that it hit its cap of 10,000 visas in 2014.  This is the first time this has happened since 1990 and it is mainly due to the large number of investors from China.  More than 80 percent of the EB-5 applications are from Chinese investors.    Most of the people who want to do this are wealthy and they're doing it for their children.    The number of Chinese students studying in the US has grown tremendously.  In 2009 less than 100,000 student visas were issued. In the 2014-2015 academic year, there are an estimated 400,000 Chinese students studying in the US.  

Investors may be eligible for an EB-5 immigrant visa if they have invested – or are actively in the process of investing - the required amount of capital into one of the following for-profit business-types:

• A new commercial enterprise
• An enterprise which will expand to 140% of pre-investment net worth
• A troubled business in which jobs will be preserved.

The standard capital investment requirement for an EB-5 Direct investor is $1 million.

The capital investment requirement for an EB-5 Direct investor in a Targeted Employment Area (TEA), or a Rural Area, is $500,000.     3,000 of the 10,000 EB-5 visas are reserved for people who invest in TEA’s or Rural areas.

EB-5 investors must demonstrate that their capital investment will create at least ten full time, permanent jobs for qualified U.S. workers within the United States.   A qualified U.S. worker is a U.S. citizen, Green Card holder, asylee or refugee.  Jobs created for nonimmigrant workers or members of the EB-5 investor’s family are not qualifying.

For both the 1 million and 500 thousand Direct Investments, the foreign investor must be present and must be actively involved in the management of the business.  He retains complete control of the finances of the business.

There are four steps to becoming a Lawful Permanent Resident (LPR) through the EB-5 program.

1. Form I-526 immigrant petition approval.

2. Application for an immigrant visa either through adjustment of status (Form I-485) in the United States with USCIS, or through an application for an immigrant visa (Form DS-230) with the Department of State (DOS).

3. Upon approval of the Form I-485 or admission to the US on an EB-5 immigrant visa, the alien is granted two-years of conditional permanent resident status.

4.  A Form I-829 petition to remove the conditions on the LPR status must be filed at the end of the two-year conditional period. If the alien has fulfilled the EB-5 requirements, then the conditions will be removed and the alien will be receive a permanent Green Card.

EB-5 requirements for an investor in a Regional Center are essentially the same as in the basic EB-5 investor program.   Regional Center investments allow for a less restrictive job creation requirement because they can include both “indirect” and “direct” jobs.

On December 5, 2014, USCIS held an EB-5 Meeting in Washington, DC.    The EB-5 program director stated that in Fiscal Year 2014, the EB-5 Program has brought approximately $5.5 billion to the US economy.   The program is backlogged now with approximately 11,000 pending petitions filed by immigrant entrepreneurs.  

Most people who attended this USCIS meeting were concerned about the processing time of EB5.   The current processing time for all of the petitions required in the EB-5 program is about one year or more, with Direct Investment requiring more time than investment in a Regional Center.   One of the main reasons for delay in approving EB5 petitions is the need to provide a satisfactory “paper trail” of the money that is being invested.

--------------------------------------------------------------------------

 Q.1. If there are multiple investors joining in a project, should the applications be filed concurrently or separately?

 A.1. The applications may be filed either separately or concurrently.

-------------------------------------------------------------------------------

Q.2.  If an existing business is being bought by an investor, should the part time workers be counted or be converted to full time workers and be counted as part of the required 10 full  time employees?       

 A.2.  The requirement is for 10 new jobs to be created.

---------------------------------------------------------------------------------

 Q.3.  How is the source of the investor’s funds verified?   What about if the funding is a gift?

 A.3. The source of funds will be verified when CIS processes the application.  A gift of funds from parent to child is acceptable if the accumulated income of last five years can be verified.