EB-5 Investor

Overview of the EB-5 Immigrant Investor Visa

EB5 Investor

Table of Contents

This comprehensive overview to the EB-5 Immigrant Investor Visa program aims to provide foreign investors with a thorough understanding of the EB-5 visa process, including eligibility requirements, investment criteria, and application procedures. Whether you’re a seasoned investor or exploring your options for immigration to the United States, our goal is to guide you with the knowledge and resources needed to navigate the EB-5 program successfully.

The EB-5 Immigrant Investor Visa program is a pathway to achieve lawful permanent residency (green card) in the United States for foreign investors and their immediate family members. Established by the U.S. Congress in 1990, the EB-5 program aims to stimulate economic growth and job creation by encouraging foreign investment in new commercial enterprises. By investing in projects that meet specific criteria, foreign investors can obtain conditional residency and, ultimately, lawful permanent residency status in the United States.

The EB-5 program offers investors flexibility in the types of projects they can invest in. Basically, there are 2 routes an EB-5 investor can take, Direct Investment or investing through a Regional Center.

Direct Investment

Investors can choose to invest directly in a new commercial enterprise that they manage and control. Direct investments provide investors with greater oversight and control over their investment, allowing them to actively participate in the management and operations of the enterprise. Some forms of direct investments involve ventures like starting or purchasing an existing business.

Regional Center Investment

Alternatively, investors may choose to invest in a project with a USCIS-designated regional center. Regional centers are private or public entities that promote economic development projects and job creation within specific geographic areas. Investing in a regional center basically involves investing capital in a pool of funds with other investors for large-scale projects, where job creation requirements are calculated differently, but unlike direct investment, the foreign investor has a lot less direct control over the investment.

To qualify for the EB-5 Immigrant Investor Visa, foreign investors must meet the following criteria and investment requirements:

Minimum Investment Amount

Investors must make a minimum capital investment in a new commercial enterprise. The required investment amount varies depending on the location of the enterprise, with a lower minimum investment amount for projects located in targeted employment areas (TEAs). Targeted Employment Areas can either be a rural area, or an area with high unemployment. A rural area excludes locations within a standard metropolitan statistical area (MSA) or within the outer boundary of cities or towns with populations exceeding 20,000, as per the latest U.S. census [8 CFR 204.6(e)].

Create 10 Full-Time Jobs

The investment must create or preserve a minimum of 10 full-time jobs for qualifying U.S. workers. Job creation requirements are an important part of the EB-5 and plays a a mojor factor in determining whether an investor is eligible. Full-time employment is defined to be working a minimum of 35 hours per week. Qualifying U.S. employees includes U.S. citizens, lawful permanent residents, or other immigrants lawfully authorized for employment in the U.S. such as conditional residents. Qualifying employees does not include the immigrant investor or the immigrant investor’s immediate family members. INA 203(b)(5)(A)(ii).

New Commercial Enterprise

New commercial enterprise are business entities that were established after November 29, 1990; however, a business that was established on or before November 29, 1990 can still qualify if it will be restructured or expanded through the foreign immigrant’s investment. INA 203(b)(5)(D)(vi).

Lawful Source of Funds

Foreign investors must demonstrate that the capital invested was lawfully obtained through legitimate means. USCIS requires comprehensive documentation to verify the lawful source of investment funds, ensuring compliance with U.S. immigration laws and regulations. Any assets acquired directly or indirectly by unlawful means, such as criminal activity, is not considered to be lawfully sourced funds.

At-Risk Investment

The investment must be genuinely at risk of loss and committed to the success of the enterprise. Passive investments, such as investments in stocks or bonds, do not qualify for the EB-5 program, as they do not meet the requirement of being at risk. For the capital investment funds to be considered “at risk”, there must be a risk of loss and a chance for gain. In addition, personal bank funds don’t count towards a business investment. Funds must be deposited in a business account, and even then, without more, would not be considered to be enough to meet requirements to be considered “at-risk”.

The EB-5 application process involves several steps, including:

  • File Form I-526: The initial step in the EB-5 process is filing Form I-526, Immigrant Petition by Alien Investor, with USCIS. This form serves as the investor’s petition for immigrant investor status and must be accompanied by supporting documentation to establish eligibility. If approved, the investor and eligible family members may proceed with the next steps in the process. If the immigrant visa is immediately available according to the Visa Bulletin, then the I-526 and I-485 can be filed concurrently.
  • File Form I-485 for Conditional Permanent Residency: Upon approval of Form I-526, investors and their eligible family members may apply for conditional permanent residency by filing Form I-485, Application to Register Permanent Residence or Adjust Status. Conditional permanent residency is granted for 2 years and gives foreign investors legal status in the U.S.
  • File Form I-829 to Remove Conditions: To remove the conditions on permanent residency and obtain unconditional permanent residency, foreign investors must file Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status. This petition demonstrates that the investor has fulfilled the requirements of the EB-5 program, including job creation and investment of capital. This form should be filed within the 90-day period before the end of the 2nd year as a conditional resident, or approximately 21 months after becoming a conditional permanent resident.

Navigating the EB-5 Immigrant Investor Visa program can be complex, but with the right guidance and support, investors can achieve their immigration goals and realize their dreams of living and working in the United States. Ochoa & Hill Law Group is dedicated to providing foreign investors with comprehensive legal assistance throughout the EB-5 application process. Our team of immigration attorneys are committed to guiding investors navigate the EB-5 investor program and achieve lawful permanent residency. Contact us today to learn more about how we can assist you with your EB-5 visa application.

If you need further clarification on any aspect of the EB-5 program or assistance with your application, please do not hesitate to reach out to our team. We are here to support you every step of the way.

Frequently Asked Questions

Yes, EB-5 visa holders can apply for U.S. citizenship after they have held a green card for at least five years and meet all other eligibility requirements for naturalization.

While both the EB-5 and E-2 visas are investor visas, the EB-5 visa leads to permanent residency, whereas the E-2 visa is a non-immigrant visa that requires the investor to maintain their investment and does not lead to permanent residency or citizenship.

No, there are no age or education requirements for the EB-5 visa. However, applicants must be able to demonstrate the lawful source of their investment funds.

Yes, you can include your spouse and unmarried children under the age of 21 in your EB-5 visa application as dependents.

Yes, you can apply for the EB-5 visa if you are already in the United States on another visa, as long as you meet all EB-5 program requirements and are admissible to the United States.

To ensure a seamless process, consider consulting with our experienced immigration attorneys at Ochoa & Hill Law Group. Contact us at (713) 984-4823 to schedule a consultation.

Disclaimer: The information provided above is not intended as legal advice. Each immigration case is unique, and individuals should seek personalized legal guidance. 

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