EB-5 Visa Overview
The following describes the requirements and process for the Employment-Based Fifth preference immigrant visa classification (the “EB-5 Visa”). The EB-5 Visa allows an investor, spouse and children to obtain Lawful Permanent Resident (“LPR”) status. The Investor must have invested, or be actively in the process of investing, in a New Commercial Enterprise (“NCE”). The NCE may loan funds to a Job Creating Enterprise (“JCE”).
Requirements
EB-5 Visa Investment Amount
A Targeted Employment Area (“TEA”) is a rural area or an area of high unemployment. If the investment is in a TEA, the minimum investment is $500,000. If the investment is not in a TEA, the minimum investment is $1 million. The Investor must show the lawful Source of Funds (“SOF”) and Transfer of Funds (“TOF”), such as tax returns, real estate records, bank records, etc. If the SOF is a gift, records from the donor are required. If the TOF is informal (transfer through non-bank system) records from the intermediaries are needed. If the Investor will put capital directly into a Job Creating Enterprise (“JCE”) as equity, the Investor must show the lawful SOF for all co-investors, including those not applying for EB-5 Visas.
Job Creation
The investment must relate to the creation of at least ten (10) full-time jobs. If the Investor’s NCE is affiliated with an EB-5 Regional Center, job creation includes the total of direct and indirect jobs. Indirect jobs are estimated with an economic model based on the revenues or expenses of the NCE. If the NCE is not affiliated with an EB-5 Regional Center, job creation only includes full time employees of the NCE. An NCE not affiliated with an EB-5 Regional Center is sometimes called “EB-5 Direct” or “Stand Alone EB-5.” In this case, the NCE is also the JCE.
EB-5 Visa Process
1. Investment
If the NCE seeks funding from multiple investors, is must distribute “Offering Documents” including a Private Placement Memorandum (“PPM”), Subscription Agreement, the NCE’s organization documents (such as limited partnership agreement), Escrow Agreement, Economic Impact Report, Business Plan, etc. The Investor and advisors must review and understand these documents before the Investor signs and places the investment into the NCE.
2. I-526 Petition.
After committing funds to the NCE, the Investor files an I-526 Petition with the US Citizenship and Immigration Service (“USCIS”). USCIS processing times are provided here: https://egov.uscis.gov/processing-times/ The USCIS often asks for additional information or documents by issuing a Request for Evidence (“RFE”). Once all requirements are met, the USCIS approves the I-526.
3. Visa Waiting List.
After I-526 approval, the Investor is placed on an immigrant visa waiting list, according to the date of filing of the I-526, called the “Priority Date” according to the Investor’s Country of Birth. The Visa Bulletin shows the Priority Dates that are at or near the top of the waiting list, at this link: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
4. Conditional Permanent Residence
Once the Priority Date is at the top of the immigrant visa waiting list, the Investor applies for Conditional Permanent Residence, through either Immigrant Visa Process or Adjustment of Status Process.
Immigrant Visa Process. If outside the US at that time, the Investor applies for an Immigrant Visa (“IV”) with the National Visa Center. The Investor and family will interview at a US Consulate in the home country. Upon entry into the US with the IV, the Investor and family are admitted as Permanent Residents on a Conditional Basis.
Adjustment of Status Process. If inside the US with a valid nonimmigrant status, the Investor may file an application for Adjustment of Status (“I-485”) with the USCIS. The Investor and family will interview at a USCIS office in the US. Upon I-485approval, the Investor and family are granted Permanent Residence on a Conditional Basis. I-485 processing times are provided here: https://egov.uscis.gov/processing-times/
5. Permanent Residence (Removal of Conditions)
Permanent Residence is granted conditionally since the approval is based on a plan to invest and create jobs. To remove the Conditional Basis, the Investor must file an application (“I-829”) two years later showing the investment was placed and the jobs were created. I-829 processing times are provided here: https://egov.uscis.gov/processing-times/. If an EB-5 Visa Investor or family will remain outside more than 6 months per year a Reentry Permit should be obtained. The Reentry Permit allows the holder to remain outside the US for up to two years without breaking the continuity of residence.
6. Naturalization as a US Citizen
Five years after Permanent Residence was granted on a Conditional Basis, the EB-5 Investor and family may apply for Naturalization as a US Citizen (“N-400”). Once the five year mark has been reached the N-400 may be filed, even if the I-829 is still pending.