About the EB-5 program

The EB-5 visa program opens the door to permanent residency for the EB-5 investor. The admissibility requirements apply to everyone who wants to enter the U.S., and are not visa specific. Admissibility requirements relate to:

1. Health;
2. Criminal history;
3. National security;
4. Likelihood of becoming a public charge;
5. Fraud or misrepresentation;
6. Prior removals or unlawful presence in the U.S.

In the U.S. the investor must be accredited to receive offering documents, and to sign the subscription and partnership agreement. An EB-5 investor who qualifies as an accredited investor must meet either one of the following requirements:

1. Investor must have individual net worth, or joint net worth with a spouse, that exceeds $1 million at the time of the investment, excluding the value of investor’s primary residence; or
2. Investor must have annual income exceeding $200,000 in each of the two most recent years or a joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year.

After the investor selects a particular project as his investment target, he executes the Subscription Agreement. He wires to the Project Account the minimum required investment (currently $900,000) and the one-time administrative fee. The wiring of the funds occurs before the investor’s visa petition is filed.

USCIS requires that the EB-5 investor’s capital investment must be placed “at risk” for the purpose of generating a return. Thus, the investor can neither be guaranteed a return on any portion of his investment nor guaranteed the return of any portion of his capital investment. Otherwise, that portion of the investment is not deemed to be at risk, and does not constitute equity capital. Thus, it does not qualify as an EB-5 contribution for purposes of the $900,000 requirement.

In addition to the requirement that the investor’s equity capital be invested “at risk”, the investment must be continuously maintained throughout the period until the I-829 petition is approved.

The first step of the visa application process begins with the investor filing with USCIS a Form I-526 petition (or application) for conditional permanent residency. USCIS “adjudicates” (reviews and ultimately approves or denies) the petition.

The adjudicator assigned to the application focuses on the project, as well as on the individual investor. At the project level, USCIS’ main consideration is whether, based on the business plan and economic model selected by the Regional Center, the project is likely to create the number of jobs required based on the amount of the EB-5 capital to be raised. At the individual level, USCIS’ focus is (1) whether the investor’s funds have been obtained from a lawful source and (2) whether the investor’s funds will be placed “at risk”.

Ultimately, USCIS approves or denies the I-526 petition. Approval signifies that USCIS has “deemed credible” the project’s business plan’s terms and assumptions, “deemed reasonable” its job creation projections, and determined that the investor has met his burden of demonstrating the lawful source and path of the investment capital. If the I-526 petition is approved, the investor executes and submits a form to apply for an interview with USCIS or the Department of State, depending upon whether the investor then resides inside or outside of the U.S.

If the interview is favorable and the application is approved, the U.S. Department of State issues a visa allowing the investor to enter the U.S. as a conditional permanent resident. This elevates the investor’s status to “conditional permanent resident” for a period of two years.

This step requires that, during the window period between 21 months and 24 months after the issuance of the conditional green card, the applicant file with USCIS a Form I-829 petition (or application) to remove the conditions. At the project level, USCIS’ main focus is whether the required number of jobs has been created. This entails verification that all of the business plan’s commitments have been kept, especially the actual expenditure of project funds. For example, if the amount of the actual construction expenditures is less than the amount set forth in the I-526 business plan, fewer jobs are likely to be validated and thus, some of the I-829 petitions could be at risk of denial, unless the project has a sufficient job cushion.

At the individual level, USCIS’ main focus is whether the immigrant investor has sustained his investment in the project and the investment continues to be at risk. Even if the project is economically successful, the I-829 petition will be denied if it does not meet the EB-5 requirements, such as the failure to create sufficient jobs or to continuously maintain the capital investment outstanding and at risk.

If the I-829 petition is approved, unconditional permanent resident status is granted and an unconditional (“permanent”) green card is issued. The immigrant investor may permanently live and work in the U.S. Also, the conditional visa period counts towards the five-year residency requirement for the U.S. citizenship.

From start to finish, this EB-5 application process with visa issuance typically takes around 5 years.