Overview of the EB5 Immigrant Investor Category

The employment-based, fifth preference (EB5) immigrant investor program provides an avenue for foreign nationals to become U.S. permanent residents (“green card” holders) based on a qualifying investment in a U.S. commercial enterprise. This category, established in 1990, was once underutilized, but has become a popular option in recent years, in part due to over-subscription in other employment-based categories.

Overview of EB5 Requirements

Under the EB5 investor program, a foreign national may apply for a green card based upon an investment of at least $1,000,000 placed at-risk in a U.S. commercial enterprise. The minimum investment is reduced to $500,000, if the enterprise is located in a targeted employment area (TEA). A TEA is a rural area or an area with high unemployment.

Job creation is a key goal of the investor visa program. At least ten new full-time jobs for U.S. workers must be created by the business investment. If made in a designated regional center, however, the EB5 requirement for job creation can be met by showing the creation of indirect jobs.

A regional center is defined as an “economic entity … involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment.” Regional centers pool investors’ capital and apply the funds toward projects to improve the economy in the approved area. Regional centers may directly own and operate businesses utilizing the invested capital, or they may loan money to projects operated by other entities.

EB5 Application Process: Three-Step Process

The EB5 process consists of three steps. First, the immigrant petition by an alien entrepreneur (form I-526) is filed. Once this is approved, the immigrant investor either applies for an immigrant visa at a U.S. embassy or consulate, or, if the applicant is in the United States, an application to adjust status (form I-485) may be filed. The green card generally is issued with a validity period of two years. Toward the end of this two-year period, the final stage involves filing a petition to remove conditions (form I-829).

Step One: Form I-526

Before filing the I-526, the immigrant investor generally must either invest the funds in the commercial enterprise, or else commit the funds for investment by placing them in escrow; placing the investment funds in escrow will only suffice, however, if the escrowed funds are scheduled to be automatically and irrevocable released to the commercial enterprise, contingent on the approval of the I-526 petition and immigrant visa being issued or I-485 application being approved.

The I-526 petition must be accompanied by supporting evidence regarding the commercial enterprise, the enterprise’s projected capacity to create ten full-time positions for U.S. workers, and the investor’s role in the management of the enterprise. If the investment is made in a regional center, though, the EB5 investor is not required to be involved in the management of the enterprise.

The I-526 must also provide evidence of the source of the investment funds. The investor must be able to evidence that the money was obtained lawfully and that all of the funds invested belong to the immigrant investor. Funds pooled from other investors or obtained via unsecured loans will not suffice. Funds that are lawfully obtained as a gift, on the other hand, can be used to meet the EB5 investment requirement.

Step Two: Consular Processing or Adjustment of Status

Once the I-526 is approved, and assuming the priority date is current, the immigrant investor, along with the investor’s spouse and children under the age of twenty-one, may apply for conditional green cards valid for two years. For the foreseeable future, the EB5 category is expected to remain current for all countries of chargeability, other than China. EB5 China currently faces backlogs of more than two years.

Step Three: Form I-829

As mentioned above, the EB5 applicant receives a conditional green card valid for two years. In order to remove these conditions, approximately 90 days before the conditional green card is scheduled to expire, form I-829 must filed. The I-829 must be accompanied by evidence that the investment funds have remained in the project and that the requisite ten jobs were created. Once approved, the immigrant investor will receive a permanent, unconditional green card.

Conclusion

The EB5 immigrant investor program can be quite complex and has a number of rigid requirements. But, it can provide an excellent path to obtaining a green card, especially for those facing extensive backlogs in one of the oversubscribed employment- or family-based immigrant visa categories. Readers who would like to pursue an EB5 case or learn more about the program are encouraged to contact a Murthy Law Firm attorney at EB5@murthy.com.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.
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