Comprehensive Guide on the EB-5 Visa Requirements

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This comprehensive guide will walk you through the ins and outs of the EB-5 visa requirements, helping you understand the visa’s criteria to make informed decisions in your journey to obtaining a green card in the U.S. through an investment.

General EB-5 Visa Requirements

To secure your green card or permanent residency status, you must meet these specific EB-5 visa requirements set by the U.S. Citizenship and Immigration Services (USCIS):

Direct Investment in a New Commercial Enterprise

One of your options is to invest in a new commercial enterprise in any industry. You can operate as a sole proprietor, work in a partnership or joint venture capacity, establish a corporation or LLC, or invest in other qualifying entities as long as it is a for-profit new commercial enterprise conducting lawful business.

The USCIS defines a “new commercial enterprise” as an enterprise established on or after November 29, 1990. If established before November 29, 1990, it can still qualify provided it is reorganized into a new enterprise or if your investment resulted in an expansion with a 40% increase in net worth or employee count.

On the other hand, you can invest in a troubled business. This troubled business must have been operating for at least two years prior to your investment, incurring a net loss during the one to two-year period prior to your Form I-526 priority date.

Moreover, this new commercial enterprise investment can be made in a non-targeted or targeted employment area. The difference lies in the investment amount, which we will discuss later.

It is also worth noting that a direct investment in a new commercial enterprise involves active participation in the enterprise’s management. Thus, this option is better suited for investors who wish to have direct control over the enterprise’s operations.

Indirect Investment in a Regional Center

Alternatively, you can take the opportunity to invest passively in a government-selected regional center in a targeted employment area. The USCIS defines a targeted employment area as an area that needs economic stimulation, such as a rural area or an area that has experienced high unemployment (at least 150% of the national average rate). As of April 2023, there are 640 government-selected regional centers across the United States.

These regional center projects provide foreign investors a way to obtain a green card via passively investing in projects like the construction of hospitals, nursing homes, etc., that are often located in impoverished areas. The way it works is the EB-5 centers pool resources from different investors for a large project.

The main advantage to this investment type is it is almost guaranteed to meet the 10 job creation requirement, which is often already met by the time the EB-5 petition is filed.

However, the main disadvantage is the investor cannot directly influence the enterprise. Thus, this opportunity may not be for you if you seek active control over operations. But if you want to invest the minimum amount to obtain a green card and do not necessarily wish to take an active role, this option is perfectly suitable.

Capital or Investment Requirement

The investment or capital requirement is the most straightforward criterion in the EB-5 category. If you are investing in a targeted employment area, whether via a new commercial enterprise (directly or actively) or a regional center project (indirectly or passively), the minimum investment amount is $800,000. If you actively invest in a non-targeted employment area, the minimum investment amount shoots up to $1.05 million.

Note that the investment amounts are subject to change according to inflation every five years. Ensure you are getting the most accurate information from the USCIS

Job Creation

One of the most important EB-5 requirements is the preservation or creation of 10 full-time jobs for qualifying U.S. workers. Qualified U.S. workers are U.S. citizens, green card holders, or others with valid U.S. work authorization. However, your dependents cannot fill this position, even if they are authorized to work in the U.S. or with other immigrant investors.

This can be challenging, especially if the business is a direct investment or a start-up in a high-risk sector. To prevent issues, ensure that your business plan is well-written and includes a compelling strategy for job creation.

Furthermore, a full-time job is defined by the USCIS as requiring a minimum of 35 hours per week. Two part-time employees can fill a full-time position. However, positions requiring fully part-time employees are not qualified even if their total hours exceed 35 hours per week. It also excludes seasonal, intermittent, transient, or temporary jobs.

Personal Requirements

Unlike other visa categories that could lead to permanent residence, the EB-5 visa does not have specific professional or educational background requirements. So long as you have the capital to invest and have no criminal records, even minor infractions, you can safely qualify and apply for the EB-5 visa, especially if investing passively or indirectly into a regional center project.

However, it is worth noting that if you actively invest in a new commercial enterprise, you will be required to be part of the enterprise’s management or daily operations. This means you must avoid any suspicion that your position in the enterprise is not legitimate or only formally held.

Therefore, if you have qualifications that align with the position you will undertake, it is best to present them to remove doubt, even if the EB-5 category does not specifically require them. For instance, having had entrepreneurial ventures, related expertise or skills, or prior experiences in a managerial capacity would help.

To demonstrate that, you can provide documents such as academic transcripts, a well-written resume detailing your relevant experiences, documents pertaining to your other businesses, tax returns, letters of recommendations, and more.

Additionally, you must demonstrate or provide evidence that you have acquired the capital you are investing lawfully. If it comes from revenue, provide proof. If it is a gift or inheritance, you can demonstrate its legitimacy by providing documents and how the donor acquired the funds they gifted you.

Thus, demonstrating the lawful source of your investment funds is crucial. As part of the EB-5 visa requirements, you must provide documentation that traces the origin of your investment capital. This ensures transparency and helps prevent potential cases of money laundering or fraud.

EB-5 Application Process

The EB-5 visa application generally involves three steps:

  1. Form I-526. This is the first petition to file. Ensure you work with a qualified and experienced EB-5 immigration attorney to craft a complete, accurate, and compelling petition. It includes all necessary documentation to demonstrate compliance with EB-5 visa requirements. Once approved, you can proceed to the next step.

  2. Upon approval of your I-526 petition, you and your eligible dependents will be granted conditional permanent residency in the United States. This status is valid for two years and serves as a stepping stone toward obtaining unconditional permanent residency.

Note that if you are legally in the United States on a non-immigrant visa at the time your I-526 petition is approved, you may apply for an adjustment of status (Form I-485). This will allow you to transition from a non-immigrant status to an immigrant status while remaining in the U.S. Thus, you will not need to go through consular processing in your home country.

However, if you are outside the U.S. or if an adjustment of status does not apply to you, you must apply for your immigrant visa at a U.S. consulate in your home country. You will then receive a stamp on your passport and a conditional green card valid for two years.

  1. Form I-829. In order to shift your conditional green card into an unconditional or permanent green card, you must file an I-829 petition within 90 days before your conditional green card expires to lift this reservation.

To succeed, you must demonstrate or prove that you have fulfilled the previously-discussed EB-5 requirements, most especially the preservation or creation of 10 full-time jobs for qualifying U.S. workers and investment maintenance. You will then receive a green card, granting you and your dependents unconditional permanent residency or the right to live, study, and work anywhere in the United States.

Here is a handy checklist of documents to prepare for your application:

Form I-526

  • Your and your dependents’ personal documentation, including passport, birth certificate, etc.

  • Proof of funds, such as bank statements, tax returns, and employment records

  • Investment documentation, such as investment agreement, evidence of capital transfer, escrow account, etc.

  • Job creation documentation, including business plan, economic impact report, payroll records, and I-9 forms)

  • Regional center documentation, if applicable

  • Completed Form I-526

  • Translations and certified copies, if applicable

Form I-829

  • Completed Form I-829

  • Filing fee payment receipt

  • Evidence of job creation, such as pay rolls and tax returns

  • Evidence of sustained investment, such as bank statements and financial records

  • Updated business plan showing the fulfillment of investment and job creation

  • Translations and certified copies, if applicable

Note that the following checklist above is a general recommendation. Depending on your case, you may need more or less evidence.

Consult with Immigration Business Plan’s Experienced EB-5 Experts

Navigating the complex EB-5 visa process requires legal expertise and a compelling business plan. Working with an experienced EB-5 immigration attorney ensures compliance with complex regulations, streamlines paperwork, and maximizes your chances of success.

Contact us at Immigration Business Plan for a free consultation. Our team of experienced EB-5 immigration attorneys and professional business plan writers is here to guide you toward success.

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