What is the EB-5 program?
Must I have previous business experience or education?
Must I speak English?
Must I be in good health?
What are the benefits of the green card?
Family relationships and the EB-5 visa
Who receives the permanent residency (“green card”)?
What issue caused the most problems when applying for an EB-5 visa?
Are any countries excluded from eligibility for the EB-5 visa program?
Can an investor apply for EB-5 if they are currently out-of-status (i.e., Investor lives in the United States but does not have a current visa)?
What is a designated Regional Center?
Where can I find a copy of relevant laws and regulations for the EB-5 program?
How long are USCIS processing times?
What types of documents are required for an EB-5 petition?
Can I visit the project site?

 

 

What is the EB-5 program?

The Immigrant Investor Program, also known as “EB-5,” was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by immigrant investors by creating a new commercial enterprise or investing in a troubled business. There are 10,000 EB-5 immigrant visas available annually. In 1992 and regularly reauthorized since then, 3,000 EB-5 visas are also set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

There are three basic requirements for an EB-5 visa:

  1. New commercial enterprise:

    All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:

    • Established after Nov. 29, 1990, or
    • Established on or before Nov. 29, 1990, that is:
      1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
      2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

    Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:

    • A sole proprietorship
    • Partnership (whether limited or general)
    • Holding company
    • Joint venture
    • Corporation
    • Business trust or other entity, which may be publicly or privately owned

    This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

    Note: This definition does not include noncommercial activity such as owning and operating a personal residence.

  2. Capital Investment Requirements:

    Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.

    Note: Investment capital cannot be borrowed.

    Required minimum investments are:

    • General. The minimum qualifying investment in the United States is $1 million.
    • Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.

    targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.

    rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.

  3.   Job Creation Requirements:

    ·         Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.

    ·         Create or preserve either direct or indirect jobs:

    o    Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.

    o    Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

    Note: Investors may only be credited with preserving jobs in a troubled business.

    A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

    A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.

    Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, "full-time employment" also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.

    A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.

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Must I have previous business experience or education?

While education and business experience can be beneficial, they are not required. The investor is not required to have any prior business experience. Likewise, the investor is not required to demonstrate any minimum level of education. The only requirement for the investor is that he or she has the required net worth and capital.

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Must I speak English?

No. There is no requirement that an investor or their family members be able to speak English.

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Must I be in good health?

Yes, each immigrant to the United States will be required to pass a comprehensive health wellness check. That being said, minor illnesses or other non-critical conditions may not necessarily be cause for rejection of an investor’s petition.

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What are the benefits of the green card?

Generally speaking, all legal permanent residents under the EB-5 Investor Program enjoy the same benefits as every other United States resident. However, every applicant has their own set of reasons for wanting permanent residence in the United States and sees a unique set of benefits for themselves and their families. Some specific benefits of having a green card are:

• Education

• All children are entitled by law to 12 years of free, high quality public education.

• The U.S. has internationally colleges and universities. Residents can benefit from lower tuition costs.

• Students may work in the U.S. while they attend college and then continue to work afterwards, enabling the student to pay for part of his education and to work while attending graduate and postgraduate studies.

• Business

• Investors have constant and easy access to the United States for personal, trade and business purposes.

• After five years, permanent residents become eligible to apply for United States citizenship.

• The U.S. provides many financial, social and other entitlements such as: public schools, health and medical attention, social security etc.

• Permanent residents may choose any location in the United States to live, work or do business.

• Permanent residents have the ability to bring other family members to the U.S. after proper application

• Permanent residents may enter and exit the U.S. without the need of a visa.

The green card requires no renewal or re-application. Other U.S. non-immigrant visas, such as E-2 and H may never result in permanent residency, have time limits, and require additional filings with USCIS or Department of State. Furthermore, U.S. immigration laws may change and prevent future approval when a renewal of visa is required.

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Family relationships and the EB-5 visa 

• Spouses of the investor may accompany or follow to join an investor who has been granted conditional lawful permanent residence provided that the investor and the spouse were married at the time of the investor’s first admission to the United States as a conditional lawful permanent resident or following adjustment of status to lawful permanent residence. If the relationship is one in common law, the spouse of the investor may not acquire lawful permanent resident status on account of the relationship.

• Children or step-children of the investor may accompany or follow to join an investor who has been granted conditional lawful permanent residence provided that the investor can establish parentage or step-parentage at the time of the investor’s first admission to the United States as a conditional lawful permanent resident or adjustment of status to lawful permanent residence.

• A child is someone under the age of 21 years who is unmarried. If a child becomes age 21 or marries before being admitted to the U.S. as a lawful permanent resident or adjusting to lawful permanent resident status the former child, now deemed a son or daughter, may not be eligible to accompany or follow to join the investor. In some circumstances, the child status protection act may assist a son or daughter to qualify as a child by reducing the deemed age of the son or daughter to less than 21 years.

• Under some circumstances a child who becomes 21 years of age or marries while holding conditional lawful permanent resident status, or the spouse of the investor who is divorced from the investor while holding conditional lawful permanent resident status, may be eligible to remove conditions by being included in the investor’s I-829 petition or filing a separate I-829 petition. Failure to meet qualifying conditions, which may not be within the former child’s or divorced spouse’s control, could result in loss of status.

• Upon the death of an investor holding conditional lawful permanent resident status, a spouse and qualifying children of the investor also holding such status are entitled to seek removal of conditions by submission of the same evidence demonstrating compliance with required criteria that USCIS requires of an investor seeking to remove conditions.

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Who receives the permanent residency (“green card”)?

The investor, their husband or wife and any unmarried children under the age of 21 are eligible to receive a green card. It is possible for adopted children to be included in the family. Upon approval you will receive a form evidencing approval and a travel document. You should also receive a temporary green card in the mail.

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What issue caused the most problems when applying for an EB-5 visa?

The most common problem area has been insufficient documentation of the source of funds. Many people try to disclose as little information as possible only to have the file returned with a request for further information. It is better to provide too much information rather than too little information. In this are of terror alerts, and suspicions about money laundering, U.S. Citizenship and Immigration Services (USCIS) case examiners require a well-documented source of funds.

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Are any countries excluded from eligibility for the EB-5 visa program?

The EB-5 Visa is open to all nationalities.

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Can an investor apply for EB-5 if they are currently out-of-status (i.e., Investor lives in the United States but does not have a current visa)?

Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. They must first return to their country of origin and apply through the United States Embassy there. Examples of “out-of-status” individuals are students, tourists, and others who no longer have valid visas because they remained in the United States after their visas expired or were revoked.

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What is a designated Regional Center?

( A “Regional Center” is a non-government entity, organization or agency that has been approved by U.S. Citizenship and Immigration Services USCIS). A Regional Center focuses on a specific geographic area and specific NAICS industry codes within the United States. A Regional Center seeks to promote economic growth, and increased job creation at least in part through the sourcing and deployment of EB-5 investment funds. Investors who invest in a designated Regional Center also benefit from the ability to include indirect and induced job creation numbers towards their required minimum job creation-count of 10 full time equivalent jobs.

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Where can I find a copy of relevant laws and regulations for the EB-5 program?

You can visit and explore the United State Citizenship and Immigration Service’s website at "www.uscis.gov".

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How long are USCIS processing times?

Processing times for all USCIS petitions can be found at "https://egov.uscis.gov/cris/processTimesDisplayInit.do"

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What types of documents are required for an EB-5 petition?

Identification documents such as birth certificates, passports, marriage licenses, etc. will be required for each applicant. The principal applicant will need to prove that their investment funds are lawfully gained. Other financial documents, such as five years of tax returns, five years of bank records, proof of business ownership, business license, etc. will also be required. Lastly, any documents related to an investors current immigration status in the United States of America will be required if it is applicable to the applicant.

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Can I visit the project site?

Absolutely. Please contact us to arrange a visit.

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