EB-5 Immigrant Investor Visa

Overview/Description

If you want a green card and have ever thought about starting or purchasing a business in the United States an EB-5 Investor Visa could be perfect for you.  Generally speaking the EB-5 Immigrant Investor Visa (“EB-5 Visa”) requires that you invest either $1,000,000 in a city settings, or $500,000 in rural settings, and in return, the U.S. Government will give you a Green Card.  The Government makes 10,000 of these available every year and so far the number of applicants has always been below the cap.  The key advantage of this Visa is that you get a green card out of it and the speed of processing. The down side 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 and they are as follows:

  • You must invest or be actively in the process of investing either $1,000,000 in a city settings, or US $500,000 in rural settings;
  • You must show that the funds come from a legitimate source
  • 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 capital up that could be lost)
  • You must make the investment in a “new” or “existing business enterprise” (this allows you to create your own business or buy one); and
  • 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 Service (“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.  Scott Legal, P.C., is the perfect choice to assist you as our founder, Ian E. Scott, is both a Certified Public Accountant and a Lawyer.  This combination is very effective for this Visa as the legal work required often overlaps an expensive business and financial statement review that is required.

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 a complicated one but if you have the funds, this is an excellent way for someone and their family to get a green card and ultimately become a U.S. citizen.  Generally speaking the EB-5 Immigrant Investor Visa (“EB-5 Visa”) requires that you invest either $1,000,000 in a city settings, or $500,000 in rural settings, and in return, the U.S. Government will give you a Green Card.  In order to qualify, you must also create 10 full-time jobs for U.S. workers and meet some other requirements.  Read more about the EB-5 requirements by clicking here.  Here are the 6 (six) key steps to get an EB-5 Visa.

1.     Find The Appropriate Investment “Project”

The first step is for the EB-5 applicant to find a project to invest in and this generally takes the form of either a new commercial enterprises for individual investors or Regional Center projects. If the applicant chooses to invest as an individual investor then they must locate an investment project or business of their own. For example, the investor could start or buy a manufacturing company or start a restaurant franchise. This is a great option for people who really want to come to the U.S. to run their own business and is also the option where the investor may be able to realize significant returns.

Investors can also choose to invest through a mechanism called “Regional Centers.”  To this end, the Government has set up a special program called a Regional Pilot Center Program where Investors can act more as passive investors and contribute funds to government recognized entities.  Under this program, businesses involved in promoting growth in certain geographic areas are approved as regional centers and may meet the job creation requirements of the law using “indirect employment” based upon approved methodologies.  With this option, you would simply invest the money with the regional center and get a very small return (usually about 1%-2%) on your investment.  There are ranges of risk profiles associated with the regional centers and they are a great choice if you do not mind a low return and do not want to mange a business.

Scott Legal Services, P.C. can assist you to determine which “project” is best for you and this assessment will involve an extensive review of your documentation and goals.

2.     You Make a Capital Investment and Your Attorney Files A I-526 Petition

The next step of the process is for the applicant to invest the required investment amount in the project that they have chosen. That is, the investment of either $500,000 for a regional center or $1 million dollar for other investments.  These investments are often made into an escrow account.  After the money has been put in escrow, your qualified immigration lawyer will file a petition (I-526) with the government.  In order to file an I-526 petition, the applicants must also present evidence that their investment will lead to the creation of 10 fulltime jobs for U.S. workers and this is usually supported by a comprehensive business plan.  In addition, the applicant must also prove that the funds came from a legitimate source.  The government usually informs the applicant whether or not their I-526 petition has been accepted after 4 to 6 months.

3.     Request for Information

An EB-5 Visa petition is an extremely complex and document intensive petition.  Moreover, as some applicants may be starting up a new enterprise, it may not be apparent to immigration officials the exact nature or basis of the financial data or strategy. As such, the government often requests additional information from applicants after the I-526 has been filed.  This is a normal part of the process and allows the government to inquire about areas that they may not be clear about.  You should take any requests for information to your attorney as soon as you receive them so that he/she can respond to the government appropriately.

4.     Apply For A Conditional Green Card Step 1

As outlined in one of our previous article, there are a number of requirements that must be met to apply for an EB-5 Visa and one of those requirements is hiring 10 full-time U.S. workers.  As you do not have to hire the workers immediately, the government will issue you a conditional green card for two years.  At the end of the two years, you will be required to prove that you have met the conditions and hired the required employees.  EB-5 investors are eligible for this conditional green card once their I-526 petition has been approved and the exact forms that have to be filed depend on whether you are in the U.S. or not.  If you were in the country when the I-526 is approved, you would file a change of status petition (I-485). If you are out of the country, you will file documents so that your green card can be processed at a Consulate.

5.     Apply for Green Card Step 2 – Removal of Conditions (I-829) Petition

The last step in the EB-5 visa process is for applicants to become unconditional permanent residents by removing their two-year conditional status. To do this, your immigration attorney would file an I-829 petition 90 days prior to the anniversary of the date that the applicant first received their conditional residency. This application proves that the investor has met all requirements of the EB-5 visa program and the government usually issues a permanent green card around 6 months after the I-829 has been submitted.

The Visa is also fast!  The average processing time for the EB-5 Visa (green card) is six months and the initial application and petition are usually approved in 60 days from the date of filing.  You will however have to also wait for the United States Citizenship and Immigration Service (“USCIS”) and Department of State forms to schedule an interview.  While you get an “official” green card it has conditions imposed for a two-year period.  The conditions really relate to making sure the business is legitimate and ongoing and ensuring that you do in fact hire 10 full-time employees.  After the two-year period, you go back to the Government and request that they remove the conditions.  The removal of the conditions can be complicated but as long as you have met the conditions you will get your unconditional green card.

How long does the Visa last for?

This is a green card so once you get it you can keep it forever as long as you adhere to certain residency requirements.

How are Family Members Treated?

This Visa is a great option if you would like to also get your family green cards as an individual investor and his or her family (husband, wife and any unmarried children under the age of 21) may all get a green card.

Other Considerations or Related Articles

Link to EB-5 articles

Common Questions & Answers

Some common EB-5 Questions:

What is the Designated Regional Pilot Center Program?

The Government has set up a special program called a Regional Pilot Center Program where Investors can act more as passive investors and contribute funds to government recognized entities.  Under this program, businesses involved in promoting growth in certain geographic areas are approved as regional centers and may meet the job creation requirements of the law using “indirect employment” based upon approved methodologies.  Scott Legal Services, P.C. can help you find a regional center that meets your needs.

Are Regional Centers Safe?

A few things you should consider if you wish to invest in a Regional Center:

1.  Regional center investors are now required to invest the full $500,000 before submitting the I-526 petition.  You should therefore check with the regional center to ensure that the money will be returned if the petition is denied.

2.  Regional center fees are around $50,000 which would likely make your “net” return on any investment negative. Also, the normal holding time for the investment in the regional center is 5 years.

3.  Even though the United States Citizen and Immigration Services (“USCIS”) “approves” regional centers, this approval of an EB-5 Regional Center application does not :

i.     Constitute USCIS endorsement of the activities of that Regional Center;

ii.     Guarantee compliance with U.S. securities laws; or

iii.     Minimize or eliminate risk to the investor.

This means that you could invest money, lose it and not get a Visa.  It is very important to note that all regional centers can go bankrupt or fail to comply with the terms that will allow you to get your visa.

4.  Some regional centers have been the subject of SEC investigations where the organizers were charged with securities fraud.  You must perform a significant amount of due diligence before you invest.  Think about the investment as any other investment that is subject to complete loss.  Also, you should get an experienced Securities lawyer to perform due diligence and to assess whether or not the regional center is complying with U.S. law.

5.  A regional center must still create the requisite number of jobs. That is, for every green card issued, the center must create 10 jobs. If the center does not create the 10 jobs, you will not get your Visa.

6.  For regional centers, indirect employment job creation is allowable.  This is a significant benefit as often direct investors face issues surrounding proving they created 10 full-time jobs when they attempt to remove their conditions.

7.  You should hire the appropriate professionals to perform due diligence to properly select a regional center.

8.  There are over 200 regional center USCIS has approved and the list is rapidly growing. Some of the approved centers have well-established track records while others are new and untested.  If a Regional Center has not been in existence for 2 years, it means that no one has obtained an unconditional green card yet.

9.  When you select a regional center you must also pick a specific investment project as most regional centers have several projects. The fact that one project has been successful does not provide any assurance that the next one will be.

Can My Family Come With Me and How Long Does An EB-5 Visa (Green Card) Take To Get?

This Visa is a great option if you would like to also get your family green cards as an individual investor and his or her family (husband, wife and any unmarried children under the age of 21) may all get a green card.

The Visa is also fast!  The average processing time for the EB-5 Visa (green card) is six months and the initial application and petition are usually approved in 60 days from the date of filing.  You will however have to also wait for the United States Citizenship and Immigration Service (“USCIS”) and Department of State forms to schedule an interview.  While you get an “official” green card it has conditions imposed for a two-year period.  The conditions really relate to making sure the business is legitimate and ongoing and ensuring that you do in fact hire 10 full-time employees.  After the two-year period, you go back to the Government and request that they remove the conditions.  The removal of the conditions can be complicated but as long as you have met the conditions you will get your unconditional green card.

Do You Need A Lawyer?

Yes and in most cases an Accountant too as it is a good idea to have an accountant look at the financial statements of any business you may want to purchase.  At Scott Legal, P.C. you have both as our founder Ian E. Scott is a qualified C.P.A and a Lawyer!  You need a lawyer as the EB-5 Visa can bring to the forefront significant tax, financial and liability implications that you should carefully consider so that you set up your business and file your petition the right way.

How Can Scott Legal Services Help You with you EB-5 Application?

All in all an EB-5 Visa is a great Visa option for those who have the money and wish to start a business in the U.S..  The Visa does have an extensive documentation requirement and you are strongly advised to seek the assistance of a qualified immigration lawyer.   Let Scott Legal, P.C., be your guide.  Here are some of the ways we can help you with your EB-5 Visa.  We can:

  • Work with the investor and family to put together an EB-5 Visa green card petition.
  • Assist the investor in completing all documents needed for the EB-5 Visa petition.
  • Prepare the investor and his family for the Department of State interview
  • Appear with the investor and family at the interview (upon the investor’s request) with the Department of State at the consular post overseas, and assist in the interview process or appear at the interview before the USCIS in the United States;
  • Assist the investor and family in entering the United States and establishing lawful permanent residence in the United States;
  • Assist the investor and family in removing the condition from the permanent resident status within the last three months of the second year following the commencement of permanent residence;
  • Assist the investor in obtaining any financing services that may be necessary.
  • Assist the investor to find a regional center

Fees

Fee schedule