Immigrant Investor Program
The EB5 visa offers US permanent residency in exchange for a minimum $900,000 investment in the United States. It is one of the fastest and most effective routes to a Green Card, which offers freedom to live, work, study or retire anywhere in America.
The government makes 10,000 of these green cards available every year and, so far, the number of applicants has always been below the cap. The key advantage of this Visa is the speed with which you can get a green card.
The downside is that it is a very complex legal area and the Visa petition requires extensive documentation. Also, the EB-5 Visa requires a substantial investment.
Requirements & Eligibility
There are 5 main criteria to get an EB-5 Visa. They are as follows:
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You must invest or be actively in the process of investing either $1,800,000 or $900,000 (the lower, $900,000 investment is permitted in rural or high unemployment settings, which are also known as “targeted employment areas,” or “TEA”)
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You must show that the funds come from a legitimate source
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The entire amount of the investment must be active or at risk (this means that you cannot just be thinking about buying a business, and you have to put up capital that could be lost)
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You must make the investment in a “new” or “existing business enterprise” (this allows you to create your own business or buy one); and
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You must demonstrate that the investment directly or indirectly results in the creation or preservation of ten full time jobs.
If you can meet these criteria, you are well on your way to getting an EB-5 Visa. The process, though, is not simple, and you will need a qualified lawyer (and perhaps an accountant) to navigate through this complex area.
When filing your petition you must apply to the United States Citizenship and Immigration Services (“USCIS”) and submit a number of required documents including: immigration forms, personal financial information, business plans, a legal brief summarizing how you have met all of the elements of the statute, and other supporting evidence.
CAPITAL INVESTMENT REQUIREMENTS
Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by immigrant investors, if they are personally and primarily liable and the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.
All capital will be valued at fair-market value in U.S. dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) will not be considered capital.
Immigrant investors must establish that they are the legal owner of the capital invested. Capital can include their promise to pay (a promissory note) under certain circumstances.
The minimum investment amounts by filing date and investment location are:
A targeted employment area can be, at the time of investment, either:
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A Rural Area: any area other than an area within a metropolitan statistical area (MSA) having a population of 20,000 or more
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An Area with high unemployment: Where the new commercial enterprise is principally doing business and the area has experienced an average unemployment rate of at least 150% of the national average unemployment rate.
JOB CREATION REQUIREMENTS
An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees.
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Direct investment: not located within a regional center, must itself be the employer of the qualifying employees.
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Regional center: can directly or indirectly create full-time positions by creating:
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Direct jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
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Indirect jobs created as a result of the new commercial enterprise.
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Troubled business: investors may rely on job maintenance.
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Must show that the number of existing employees is, or will be, no less than the pre-investment level for a period of at least two years.
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Application Process
There are a number of steps that investors must complete to get a green card through the EB-5 visa program. The process is complicated, but if you have the funds, this is an excellent way for someone and their family to get green cards and ultimately become U.S. citizens. Here are the 5 (five) key steps to get an EB-5 Visa:
Step 1: Find The Appropriate Investment “Project”
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Individual investor must locate an investment project or business on their own
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Investors can invest through “Regional Centers”
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Regional Center Pilot Program: investors can act more as passive investors and contribute funds to government-recognized entities
Step 2: Make a Capital Investment and Your Attorney Files an I-526 Petition
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Invest the required investment amount in the project that they have chosen
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Often made into an escrow account
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I-526 Petition:
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Prove creation of 10 full time jobs, usually supported by a comprehensive business plan
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Prove that the funds came from a legitimate source
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Step 3: Request for Information
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An EB-5 Visa petition is an extremely complex and document-intensive petition
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New enterprise: the exact nature or basis of the financial data or strategy may not be apparent
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Government often requests additional information from applicants after the I-526 has been filed
Step 4: Apply For A Conditional Green Card (Part 1)
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One of requirements for EB-5 is hiring 10 full-time U.S. workers
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Government will issue you a conditional green card for two years
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At the end of the two years: prove that you have hired the required employees
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Eligible for this conditional green card once their I-526 petition has been approved
Step 5: Removal of Conditions on the Green Card (Part 2)
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File an I-829 petition 90 days prior to the anniversary of the date that the applicant first received their conditional residency
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Government usually issues a permanent green card around 6 months
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Wait for “USCIS” and Department of State to schedule an interview
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Before getting “official” green card, it has conditions imposed for a two-year period
COMMON QUESTIONS
WHAT ARE PHYSICAL PRESENCE REQUIREMENTS FOR EB-5 INVESTORS?
There is no 180-day rule. If you have a green card, you are expected to live here and pay taxes. You are allowed to be abroad for a few months with good reason. If you out for more than one year, the green card is technically terminated. For this reason, you should apply for a re-entry permit which authorizes absences of up to two years, if approved.
HOW CAN I TRAVEL WITH MY EB-5 I-829 RECEIPT NOTICE IN THE ABSENCE OF A GREEN CARD?
The I-829 receipt extends your evidence of green card status for 18 months. Take a copy of the PR card, I-90 receipt and I-829 receipt. If you can get another passport stamp, get that, but they are hard to get these days.
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