The EB-5 Investor Visa, Explained
The EB-5 (employment-based, 5th preference) investor visa grants permanent resident status to investors who satisfy certain criteria. With this visa, the applicant’s spouse and unmarried children below the age of 21 may also receive a green card.
The visa, administered by U.S. Citizenship and Immigration Services’ (USCIS’s) Immigrant Investor Program Office (IPO), was first introduced in 1990 to help boost the economy by growing employment and attracting foreign capital.
When people talk about buying a green card, this is the closest thing to it. The following is a discussion of a traditional EB-5 case. However, most of our clients will go through a regional center to apply with an $800,000 investment.
There are two basic criteria that must be met to receive an EB-5 visa. The applicant must:
Invest in a U.S. business: The investment must meet the minimum requirement, as determined by 8 CFR § 204.6. Intend to create, or maintain, at least 10 full-time jobs which can be filled by U.S. workers.
For the purposes of the EB-5 visa, the business must be for-profit and must be one of the following:
Corporation
Joint venture
Business trust
Sole proprietorship
Holding company
Partnership
Other publicly or privately owned structure
The capital investment may come in the form of:
Cash
Equipment
Inventory
Other property
Secured debt
The value of the investment — which is to be determined by the fair market value — must meet certain minimums depending on the area of investment. If the petition was filed after November 21, 2019, the investment must be at least $1.8 million. That is, unless the investment is in a targeted employment area (TEA) — which is either a rural area or an area with high unemployment — in which case it must be $900,000 at minimum.
If the business is in a regional center in an area that is supporting economic growth, the investment must result in either direct job creation (in which case the company is the employer) or indirect job creation (in which case the jobs emerge as a result of the business’ activities). If, however, the commercial enterprise is located outside a regional center, then it must directly create the 10 new positions.
There may be some allowances for “troubled businesses” with economic difficulties. A troubled business is one which has existed for at least 2 years and has experienced a net loss — equal to at least 20% of the net worth — within 1 to 2 years of the filing date.
To successfully obtain an EB-5 investor visa, the applicant must first submit Form I-526 with evidence showing:
That the applicant has invested in a for-profit venture satisfying the above-mentioned criteria
That the area is indeed a TEA (if applicable)
That the applicant will be involved in the business as a manager
That the new venture will require 10 new employees, as described in the previous section
That, for 2 years following the petition, the number of employees will not dip below the pre-investment levels (if investing in a troubled business)
For a more detailed explanation of the required documents, read pages 9 and 10 of the USCIS
Submit Green Card Application
Once Form I-526 has been approved, the applicant can begin the green card application process. This process will be different depending on the circumstances. If the applicant lives abroad, they will need to go through consular processing. They will then need to attend an interview at the U.S. Embassy or consulate, bringing with them the required documentation. If living in the United States, the applicant will need to go through the Adjustment of Status process, which requires filing Form I-485 and, in many cases, attending an interview.
If successful, the applicant — and any family members attached to the application — will receive a conditional green card, which will remain valid for 2 years.
Remove Conditions
Once the 2-year period has lapsed, the applicant will need to apply to remove the conditions from their green card, which means they’ll need to file Form I-829 (officially called the “Petition by Investor to Remove Conditions on Permanent Resident Status”) within 90 days of the green card expiration date. If conditions are removed, the applicant will be granted lawful permanent residence, which means they will have 10 years before they need to renew their green card.
The 800K (USD) Regional Center Route
The EB-5 Regional Center Program is the vastly popular arm of the EB-5 visa program, for investors and project developers alike. There are many choices of regional centers who have $800K that qualify for immediate adjustment of status and an employment authorization document (EAD). The new rules now allow EB-5 applicants to apply simultaneously for an EAD (work permit) and Advance Parole (AP). So, if the investor is in another status in the US, they can effectively file an adjustment of status at the same time as the initial 526E registration regardless of nationality.
A 2018 study found that a staggering 94% of approved EB-5 visas were awarded to regional center investors. The regional center program allows project developers to pool even more investment capital by sourcing from multiple EB-5 investors instead of just one. It also offers EB-5 immigrant investors greater flexibility in meeting the requirements of the EB-5 program.
A regional center is any private or public economic unit involved in promoting economic growth, improving regional productivity, creating jobs, and increasing domestic capital investment, and designated as such by USCIS.
In other words, a regional center is an agency that has demonstrated to USCIS that it is working toward the EB-5 program’s goals of stimulating the U.S. economy through foreign investment and job creation.
Regional Center designation allows a business entity to work as a service agent for EB-5 investors and project developers by managing the investors’ funds. U.S. project developers can apply for regional center designation, and both domestic and immigrant investors can invest in regional center projects.
The required capital investment amounts are the same for direct and regional center investments. Regardless of the investment type, EB-5 projects located within a targeted employment area (TEA) have an investment threshold of $800,000; the minimum amount for all other projects is $1,050,000. After a nearly year-long lapse, a June 24, 2022, court decision fully reauthorized the regional center program, meaning that regional centers can once again accept investments, and visa applicants in regional center projects can submit their I-526E petitions to begin the immigration process.
Even though USCIS had previously indicated that existing regional centers would have to go through a lengthy regional center redesignation process, the June 24 ruling made it clear that existing regional centers can continue to operate without reapplying to USCIS.
The regional center redesignation process may have involved adjudication times of several months, thereby putting regional center projects on hold even longer.
The USCIS has recently announced certain projects which may allow for expedited processing.
The USCIS says they consider expedite requests on a case-by-case basis, can ask for additional documentation to support the request and have the sole discretion to determine whether they will accommodate the request or not.
Per the USCIS, the agency considers an expedite request if it meets any of the following criteria: severe financial loss to a company or person; emergencies and urgent humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural or social interests of the United States; or meets U.S. government interests.
According to the USCIS, an example of severe financial loss is if a medical office suffers severe financial loss due to a gap in a physician’s employment authorization that requires the medical practice to lay off their medical assistants. Another example, under the criteria of an emergency reason, is if there was an immediate need to expedite employment authorization for healthcare workers in a time of a national emergency, like the COVID-19 pandemic. However, not all circumstances under any of the categories can result in expedited processing, as it varies.
We have done Eb-5 cases with various regional centers and to date, all have been approved. We feel that the EB-5 is a great way to live and work in the US and have the freedom to do whatever you like, if you can risk the investment. We believe that the best investment is a well-funded stable investment. We try to work with regional centers with great track records and sound investment philosophies. Ultimately, the investor must make his/her own decision on the investment but we are here to assist with the most important part of the petition, namely, describing and explaining the source of funds. Please contact SW Law Group for a consultation about the EB-5 program if it is of interest to you.
