EB5 Investor Visa
A Comprehensive Guide to the EB5 Investor Visa Program
What Is the EB5 Investor Visa?
In 1990, Congress created the EB-5 Immigrant Investor Program, which allows foreign investors the opportunity to be granted a green card upon meeting several requirements. The goal is to stimulate U.S. economy through job creation and capital investment by foreign investors.
What Are the Requirements for EB-5 Investor Visa?
New Commercial Enterprise Requirement
All EB-5 investors must invest in a new commercial enterprise that was either established after November 29, 1990, or on or before said date. For commercial enterprises established on or before November 29, 1990, it must have either been purchased and reorganized or restructured in a way that a new commercial enterprise results, or expanded and increased at least 40% in net worth or employee count, by way of the investment. 8 CFR § 204.6(h).
Job Creation Requirement
The amount of capital invested in a new commercial enterprise by an EB-5 investor must be sufficient for the creation of at least 10 full-time positions for U.S. workers. The new commercial enterprise must itself be the employer of qualifying employees. A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the U.S. The definition does not include the immigrant investor or any relatives of the investor, or anyone with a nonimmigrant status (such as H-1B nonimmigrants). 8 CFR § 204.6(j)(4).
Capital Investment Requirements
The minimum investment amount, as of right now, is $1,800,000 per investor. The amount is subject to future adjustments in response to inflation, which will be based on the cumulative annual percentage change in the unadjusted All Items Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average reported by the Bureau of Labor Statistics. The adjustment is set to occur every five years, beginning on October 1, 2024. 8 CFR § 204.6(f).
The broad definition of capital allows an EB-5 investor to make an investment in many different ways, as long as the capital is legally owned by the investor and obtained through lawful means. 8 CFR § 204.6(e).
Moreover, making an investment means the investor must, through the investment, put that portion of the capital at risk. The capital is at risk when there is a risk of loss and a chance for gain. The mere intent to invest is not sufficient to meet the investment requirement. Similarly, if the 8 CFR § 204.6(j)(2).
What is the Application Process for an EB-5 Investor Visa?
Step 1: File Form I-526, Immigrant Petition by Alien Investor.
Evidence accompanying this petition should include:
o Evidence of your investment, or that you are actively in the process of investing in a new commercial enterprise;
o Evidence that you will be managing the new commercial enterprise;
o Evidence that you have invested or is actively in the process of investing the required amount of capital; and
o Evidence that the new commercial enterprise will create at least 10 full time positions for U.S. workers.
Step 2: After Form I-526 Petition is approved.
Depending on whether you are in or out of the United States, you can either:
o File DS-260, Application for Immigrant Visa and Alien Registration, with the U.S. Department of State to obtain an EB-5 visa abroad and seek admission into the United States; or
o File Form I485, Application to Register Permanent Residence or Adjust Status, with USCIS to adjust from your previous nonimmigrant status to lawful permanent residency within the United States.
Step 3: You, and derivative family members, if applicable, will be granted a conditional permanent residence for a period of 2 years.
Step 4: File Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status.
File I-829 within 90 days immediately before the second-year anniversary of either your approval of adjustment of status or admission into the United States as a permanent resident. Evidence accompanying this petition should include:
o Evidence that you have sustained your investment in the new commercial enterprise through the two-year period of conditional permanent residence; and
o Evidence that you have created, or will create, at least 10 full time positions for U.S. workers.
Disclaimer: This blog post outlines the basic requirements for an EB-5 Investor Visa and is not meant to be taken as legal advice. For more information on this classification, please contact an immigration lawyer.