The EB-5 Immigrant Investor Program is available to those immigrants who have invested, or are in the process of investing, at least $1 million in a new commercial enterprise employing at least 10 full-time U.S. workers. Individuals who invest in a Targeted Employment Area (TEA), however, are only required to invest a minimum of $500,000.In addition, an immigrant investor can invest $500,000 in a qualified and approved Regional Center. In direct investments & investments through a Regional Center, the investor must show that they created at least 10 direct or indirect jobs within two years of an approved I-526 application.
The EB-5 visa essentially offers a good immigration solution for those who have the financial resources to qualify and a tolerance forputting investment at risk. It does not require an employment offer from a U.S. employer as other employment-based immigration categories do, nor does it require a labor certificate.
Generally speaking, the minimum investment required to qualify for EB-5 status is $1,000,000 per immigrant investor. However, the limit is reduced to $500,000 in cases of investment in “targeted employment areas.” Such qualifying areas must have an unemployment rate 150% of the national average. A rural area refers to a municipal area with a population less than 20,000.
Assets acquired directly or indirectly by unlawful means such as criminal activities are not acceptable forms of capital. In practice, USCIS is very strict about reviewing the legitimacy of funds.
In order to qualify as an investment in the EB-5 Program, the immigrant investor’s capital must actually be placed “at risk” for the purpose of generating a return and evidence of such risk must accompany the EB-5 petition. The mere intent to invest is not sufficient and prospective investment arrangements entailing no present commitment will not suffice to show that the applicant is actively in the process of investing. While the law does not specify what the degree of risk must be, the entire amount of capital must be at risk to some degree.
An investor needs to create at least 10 full-time positions through his/her investment in order to qualify for an EB-5 petition. An “employee” is an individual who provides services or labor in exchange for compensation. “Full time employment” requires a minimum of 35 working hours per week. This does not include independent contractors. Non-immigrants (those with E, H, L, and other temporary worker visas) are not considered U.S. workers for this purpose. Moreover, the investor and his or her family members are not considered as U.S. workers for the 10 full-time employees requirement.
The Regional Center Program, allows the investor to qualify for an EB-5 green card by directly or indirectly hiring 10 people, whereas an alien investing in a new commercial enterprise under the basic program must satisfy the job requirement through the creation of 10 direct jobs for U.S. workers.
Investors should first file Form I-526, “Immigrant Petition by Alien Entrepreneur,” accompanied by supporting documentation and the $1500 filing fee with the USCIS California Service Center. Subsequent to the approval of form I-526, the intending immigrant needs to adjust status through an I-485 if he or she is in the U.S., or apply for an immigrant visa through consular processing if he or she is outside of the U.S.
You can become a permanent resident through consular processing if you live outside the United States. Consular processing is when USCIS works with the Department of State to issue a visa on an approved Form I-526, Immigrant Petition by Alien Entrepreneur Petition when a visa is available. Consular processing involves a visa interview, biometrics, collection of necessary documents, and a medical exam by a Department of State Panel Physician. Immediate family members (Spouses & Children under age 21) of EB-5 immigrant investors are eligible to undergo consular processing at the same time as the principle immigrant.
You can become a conditional permanent resident through adjustment of status if you live inside the United States. Once Form I-526 is approved and a visa number is available, you can apply for conditional permanent residence using Form I-485, Application to Register Permanent Residence or Adjust Status. Adjustment of status requires one file an application from within the United States with the USCIS. Spouses & children under age 21 may also apply to adjust status concurrently with the EB-5 investor if they are already in the United States.
Within 90 days of the 2-year conditional green card’s expiration date, the investor must file Form I-829, “Petition by Entrepreneur to Remove the Conditions” to request removal of conditional permanent residency. This must be filed with the California Service Center. Spouses & children of the EB-5 immigrant investor who are also conditional permanent residents may be included in the same application. The petition will be granted if the investor has fulfilled the EB-5 requirements in accordance with the business plan in the approved Form I-526 petition. Failure to file Form I-829 will result in automatic termination of the conditional resident’s status and will initiate deportation proceedings.