1.       What is the EB-5 Visa program?

The EB-5 Visa program is an employment-based visa which is intended to promote the flow of assets into the U.S. economy and at the same time to promote the creation of jobs in the United States and the Territory of Guam for legal U.S. residents.

To achieve these goals and so that overseas investors may obtain immigration benefits for having made an investment, the program mandates that the minimum investment a foreign investors must contribute is either USD$1,000,000 (Guam’s minimum investment) for a regular EB-5 Investment Visa or USD$500,000 for an EB-5 Regional Center under the TEA program.   In addition the program mandates that 10 full-time jobs must be created as a result of each investment.  The Investor is entitled to a return on their investment and is eligible to sell their interest in the venture after a period of 5 years.  Additionally foreign investors and their qualifying family members are offered the prospect (not guarantee) of Lawful Permanent Residence in the United States.

Projects being considered for investment are designed to qualify under requirements in the law that permit reduced investment and that also permit creation of indirect jobs for U.S. Citizens.  This approval is not granted to the respective EB-5 project unless the project can prove that they fit within the designated Regional Center guidelines that are established by the United States Citizens and Immigration Service (USCIS).

2.       Who should invest in an EB-5 Visa?

The EB-5 Investor Visa is not appropriate for everyone.  There are several eligibility requirements that must be met such as a minimum liquid net worth, the investor must submit financial records, medical records and prove that they have no criminal history.  Additionally the investor must understand that as with any investment there is a certain element of risk associated with an EB-5 Investor Visa and that these investments are fully at risk with no guaranteed rate of return or preservation of capital.

The approval of an EB-5 Visa permits the investor, their Spouse and any children under that age of 21 the right to live and work in the United States, they can also seek employment in the U.S.  We find that many investors come from various backgrounds with various goals in mind when applying for an EB-5 Visa.  Whether they are business professionals, retirees or people looking to give their children better educational opportunities, the EB-5 Visa provides the flexibility to do what you want, where you want while in the United States.

3.       How do I know if the EB-5 Visa is the best option for me?

For those individuals who still desire to manage their own business there are several other options to choose from.  The L-1 Visa (Non-Immigrant Intra-Company Transferee), the E-2 Visa (Non-Immigrant Treaty Investor) or the EB-5 Alien Entrepreneur Investment (which requires an investment of USD$1,000,000) are often considered the best alternative options to consider.  However if the goal is to have a lawful permanent resident status and to not be required to actively manage the daily running of a business, which is typically a lower risk, less expensive and more convenient option to take advantage of, then the structured investment program offered by the EB-5 Regional Center (Pilot) Program would often be the best available option.

4.       What is the required investment to qualify for an EB-5 Visa?

The EB-5 Visa program requires a minimum investment commitment of USD$1,000,000, if the investment is situated in a Targeted Employment Area (TEA) the required commitment is reduced to USD$500,000. To be classified as a TEA, the required investment must be made in a rural or high unemployment area (defined as 150% or more above the US Average) with a population of less than 20,000. Guam does not qualify for this TEA program.

Additional administrative fees are payable by each investor separate from the original investment sum. These administrative fees will vary depending on the individual EB-5 project.

5.         Does the EB-5 Visa require that I run the business?

The question often is asked about how much involvement will be required of the Investor or Applicant when it comes to running the business they are investing into with an EB-5 program.  While regulations require involvement in a policy making role or management position it does not dictate that the Investor take an active role in day to day operations. The regulations dictate a properly structured Limited Partnership, which is in line with the Uniform Limited Partnership Act and usually require that the Investor vote on policy making issues with regard to the business but they do not require that the Investor be present to “operate” the business.  For those individuals who do not want to actively participate in the management of their business investment, participating in the EB-5 Regional Center (Pilot) Program is by far the better option as the roles and responsibilities are even less than with the Standard EB-5 Program.

6.       What are the job creation requirements for the EB-5 Visa?

The job creation requirements vary depending on if the EB-5 project is a standard EB-5 project or if it is a EB-5 Regional Center (Pilot) Program.

In both scenarios it is basically the responsibility of the EB-5 Project to demonstrate that the “project” has directly created or sustained at least 10 Full-Time jobs for each foreign investor that has entered the program.  These jobs must be for lawful U.S. residents and citizens.  However if the project is designated as a Regional Center then the jobs can also have been “indirectly” created which means they may have been created at an unrelated entity as a result of this new business being formed.  The standard investment into an EB-5 program is USD $1,000,000.  The investment into a Regional Center project under the TEA Program is only USD$500,000.

A Full-Time job is defined as one that requires a minimum of 35 hours per week to fulfill.  Job sharing is permissible as long as the weekly and hourly commitment is met.  However the EB-5 program guidelines do not permit Part-Time positions to be combined in an effort to create one Full-Time position.  Independent Contractors’ spouses or children are not considered eligible to fulfill these positions.

7.       Reasons to Choose the EB-5 Investor Visa Program

The EB-5 Investor Visa program presents outstanding opportunities for many overseas investors to become permanent residents of the United States. Choosing to invest in an EB-5 Visas program allows foreign investors, their spouse and children (under the age of 21) to obtain conditional green cards so that they can attend school, legally work in the United States if they so choose or simply enjoy retirement while living anywhere in the United States. All of this while creating jobs, promoting economic growth and improving productivity within the geographic region.

8.         What if I want to Manage My Own Business?

For those individuals who still desire to manage their own business there are several other options to choose from.  The L-1 Visa (Non-Immigrant Intra-Company Transferee), the E-2 Visa (Non-Immigrant Treaty Investor) or the EB-5 Alien Entrepreneur Investment (which requires an investment of USD$1,000,000) is often considered the best alternative options to consider.  However, if the goal is to have a lawful permanent resident status and to not be required to actively manage the daily running of a business, which is typically a lower risk, less expensive and more convenient option to take advantage of, then the structured investment program offered by the EB-5 Regional Center (Pilot) Program would often be the best available option.

9.         Are EB-5 visas available to anyone outside of the US?

Yes, investment in the EB-5 Investor Visa program is open and available to anyone from any country.  Although it can be done, potential investors from countries that do not have reliable tax laws and/or require reliable financial documentation will find it much more difficult to prove the source of funds which is a key element to a successful approval of an EB-5 application.  It is strongly recommended that you retain the services of an experienced EB-5 consultant or Immigration Attorney to assist you in your research of the various EB-5 investment opportunities that are available.

10.     What is the Individual EB-5 Investment Program?

The U. S. Immigrant Investor Program (“EB-5″) was founded in 1990 to encourage the investment of foreign capital into the American economy. This program makes it possible for an investor and his/her family to obtain permanent residence in the United States by either investing in the creation of a business or in the development of an existing enterprise in the United States.

Investment into an individual EB-5 program requires a longer process than that of the “Immigrant Investor Pilot Program”. This includes filing petition for which the investment enterprise has not been pre-approved and providing a detailed business plan with information regarding whether the investment entity qualifies as a “new commercial enterprise;” whether the investment is in a “targeted employment area;” whether the investment is a “troubled business;” how the requisite “employment creation” will take place; and whether the investment meets the “establishment” of a new commercial enterprise standard.

This program also requires written assessments throughout the creation and construction process from the investor to the United States Citizenship and Immigration Services (USCIS) documenting the progress and development of the project. Another requirement is unless the investor can prove that the EB-5 project is designated in either a targeted employment area or a rural area, which would require government approval and consent, the investment for an individual EB-5 program is $1 million as opposed to $500,000.

Eligibility is based on an investor having sufficient capital to do one of the following:

• Create an original business;
• Purchase an existing business and simultaneously or subsequently restructure or reorganize the business such that a new commercial enterprise results;
• Expand an existing business by 140 percent of the pre-investment number of jobs or net worth;
• Or retain all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months;
• Invest at least $1,000,000 in a new commercial enterprise ($500,000 for designated TEA area projects);
• Create full-time employment for no fewer than 10 qualified individuals;
• Maintain the number of existing employees at no less than the pre-investment level for a period of at least two years.

Requirements include:

• Capital investment of $1 million
• Present a detailed business plan for the development of a company;
• Prove that the investment comes from a lawful source of funds;
• Pass an extensive background check and medical examination;
• Create the requisite number of jobs;
• Demonstrate active participation in the management of the enterprise;

After 2 years, the USCIS will conduct an investigation to see if the investor has fulfilled all of his obligations and met all of the requirements. In the event that the investor failed to fulfill the conditions of the program, the investor and any family members may be refused permanent residence

11.       How will I benefit from participating in the EB-5 visa program?

There are several benefits that come along with the EB-5 Investor Visa that are not available with other more traditional or well known U.S. immigration options. By participating in the EB-5 Visa Program, the Investor, along with their spouses and children (under 21 years of age) will be granted expedited lawful permanent residence. There is no employment, nor educational and language requirements, nor is it required of the investor to manage the business venture on a day to day basis.  Another benefit is that the Investors and their families have the ability to live and/or work anywhere in the United States.  Subject to meeting all immigration requirements, after five years, the investors and their families may be eligible to obtain legal U.S. citizenship.

12.       What are the basic requirements for an EB-5 Visa?

13.        What documents must be provided to get the EB-5 application process started?

Every potential investor must complete our simple and confidential Investor Questionnaire Relating to Investor Status form. In addition the Investor must present full and complete personal biographical information and proof that all money being used for this investment is from a lawful source and indeed belongs to the Investor.

The USCIS requires a minimum five year documentation history of all personal and business tax returns, business licenses and proof of ownership in any business.

If the investment assets were acquired through alternate transactions such as the sale of a home, an inheritance or monetary gift, then official documentation must be provided to ensure transactions were executed legally and properly.  Additional documents may be required and would be discussed on a case by case basis with the individual investor

 14.    What are the typical problems or issues with the with the EB-5 application process?

The most common issues or problem with the application process or approval process of the EB-5 Investor Visa is the lack of sufficient documentation of the source of funds being used for the investment.  Most investors disclose the minimum amount of information and this will only delay and complicate the application process with USCIS when further documentation is requested.  USCIS closely scrutinizes all files and it is to the investor’s advantage to provide full disclosure from the start to ensure a smooth and timely application process resulting in the least amount of complication.  Please consult with an expert at Exclusive Visas or further discuss these issues with your Immigration Attorney.

15.     Where can I find the US government guidelines pertaining to the laws and regulations of the EB-5 Visa Program?

You may obtain more information from the U.S. Government regarding the EB-5 Immigrant Investor Program and Regional Centers by contacting theUS Citizenship & Immigration Services(USCIS) website at www.uscis.gov.

16.      How long will it take for my EB-5 application to be approved and for my visa to be issued?

The time line for the approval of an EB-5 Investor Visas can vary depending on certain situations, however in most situations the entire application process should take approximately nine (9) months to be fully complete.  It will take approximately two months (or 60 days) to process the investment, all government documents and to complete the application with the USCIS. The majority of applications seem to be getting approved within six months or less.  If the investor already living in the United States and is in lawful status when the EB-5 application is approved, they will then be eligible to apply for Adjustment of Status to Conditional Permanent Residency without having to leave the United States.  This enitre application process could take up to six months or longer to be decided.  If the investor is not based in the United States they will then need to apply for an Immigrant Visa at their local U.S. Consulate or U.S. Embassy, a process which may take up to six months or longer to be approved, depending on the country in which they reside.

17.      How does the EB-5 Visa program differ from other types of U.S. visa programs?

The EB-5 Investor Visa has significant differences from other more commonly known U.S. immigrant visa programs like the L-1 or E-2 Visa.  For instance the EB-5 Investor Visa will grant permanent resident status which does not require a renewal or reapplication.

For instance the E-2 Treaty Investor program only provides non-immigrant status, which will come to an end when the qualifying business venture comes to an end.  As a result the investor will be required to leave the United States unless another visa can be granted. Additionally, children under the age of 21 are not included in this visa and would have to obtain their own visa or leave the United States.

The L-1 Visa is a non-immigrant classification visa which can be applied for by Multinational Executives or Managers.  However, classification approval is continuously difficult due to the increased number of fraudulent cases.

There are other U.S. Non-Immigrant visas which may never offer permanent residency and require additional petition filings with the USCIS or could have time limits attached to them and these are not issues that are found with the EB-5 Investor Visa.

18.      Can gifted or borrowed money be used for an EB-5 investment?

The answer is, “Yes”.  However, it depends upon where the borrowed money comes from, such as a family member or a bank loan.  It is a requirement that any and all applicable taxes are paid on this money and that the source of these funds can be fully documented.  The borrowed money cannot be jointly owned by the investor and the grantor of the gift.

19.      When was the EB-5 Investor Visa created?

Congress created the EB-5 Immigrant Visa category within the Immigration Act of 1990 to promote foreign investment in the United States and encourage the development of new domestic business ventures which would help to create jobs for U.S. citizens and legal residents.

20.     EB-5 Investor Timeline Flow Chart

Initial Phase:

·         Investor’s Sustainability Evaluation (determination of eligibility for EB-5 investment)

·         Exclusive Visa services and available EB-5 Projects overview

Phase 1:   Regional Center Due Diligence Services

·         EB-5 Regional Center Investor Consulting Agreement is signed between Exclusive Visas and Investor

·         Exclusive Visas conducts due diligence investigation of up to 5 prospective EB-5 Projects that investor has interest in

·         Investor analyses the comprehensive report on EB-5 Projects provided by Exclusive Visas and chooses one for investment

Phase 2:   EB-5 Liaison Services

·         Investor signs Subscription Agreement with the Regional Center

·         Investor deposits USD 1,000,000 into the Escrow account

Investor:

- hires independent Immigration Attorney

- prepares documents for his and his funds background check

Agent:

- verifies that Regional Center has forwarded all applicable offering documents to Investor or his Attorney for timely execution

·         Investor’s Immigration Attorney prepares & files I-526 Immigration Petition to USCIS

-          Denied by USCIS:

§  Escrow account agent returns 100% investment funds to Investor

-          Approved by USCIS:

·         Investor has a U.S. Consulate Interview (resides out of US) or files for adjustment of status (resides in US)

·         Upon approval from USCIS Investor receives conditional permanent resident status (2 year conditional Green Card)

·         Investor or his Immigration Attorney files I-829 application to USCIS for removal of conditions (21- 24 months after receiving conditional Green Card)

·         Upon approval of I-829 Form, Investor receives permanent Green Card

·         Approximately 5 years after Permanent Green Card issuance, Investor is divested of EB-5 Project (money returned) and may apply for U.S. Citizenship

21.     What is the I-526 Petition Process?

 

A potential investor is required to file a form I-526 for Alien Entrepreneur in conjunction with the documents supporting the EB-5 Investor Visa Program requirements.  Upon approval of the application, the investor and his or her immediate family (spouse and single children under the age of 21 years) may apply for an Immigrant Visa at the U.S. Consulate.  If the investor is already in the U.S., inclusive of Guam, they may apply for an Adjustment of Status at any regional USCIS office.

 

It may take nine to fifteen months for the entire application process to be completed.  During this time, the USCIS evaluates and judges I-526 applications based on, (but not limited to) the following criteria:

 

*   New Commercial Enterprise:  evidence must indicate that the business is new and authorized to transact business.

 

*   Investment Capital:  The application must be supported by documentation that proves that the investor has invested or is in the process of investing the minimum amount of required capital.  USCIS expects these funds to be classified as "at risk", an indication of an irrevocable commitment to the business investment.

 

*   Source of Capital:  Documentation supporting the legal aquisition of funds must be provided.  The USCIS will deny the I-526 petition if assets are not deemed to be lawfully acquired.

 

*   Managerial Role:  The investor of the Basic EB-5 Program is expected to actively participate in the management of the business venture through policy development and holding a management position.

 

Note:   Participating in the EB-5 Regional Center (Pilot) program is the more appropriate and specific category to invest in, if the goal is to obtain a green card and play a more passive role in the investment.

 

*   Amount of the Investment:  The I-526 application must show evidence that the required minimum investment of USD$1,000,000 (or USD$500,000 for designated Regional Centers located in a TEA) has been made.

 

*   Employment Creation:  The EB-5 Investor Visa Program requies that 10 jobs for U.S. Citizens be created on account for each investment that is made.

 

The USCIS will approve the I-526 application for Alien Entrepreneur only if the above listed criteria have been met.  The USCIS may request further information, but it is at the sole discretion of the USCIS to determine if these criteria have in fact been met.

 

22.     What is the I-829 Petition for "Removal of Conditions"?

 

The granting of the EB-5 Visa, or the approval of the Adjustment of Status followed by the entry into the United States, means that the EB-5 investor along with their spouse and qualifying children have been granted conditional Permanent Residence for two years.  After that time the conditions must be removed so that the aliens may reside in the United States indefinitely.  Failer to remove these conditions under the removal guidelines may result in termination of the Conditional Permanent Residence status and will more than likely result in removal proceedings.

 

In order to meet this requirement, it is mandatory to file a petition for "Removal of Conditions" within the 90 day period immediately preceding the second anniversary of Conditional Permanent Resident status being granted.  This process usually commences about 21 months after the conditional green card has been issued.  At this time the foreigh investor must demonstrate full investment within the business venture and show compliance with all requirements that have been set forth.  The foreign investor must also demonstrate continuous maintenance of the investment since becoming a Conditional Permanent Residence.  The Managing Partner of the investment project is required to provide supporting documentation at the request of the investor to aide ien the application of Removal of Conditions.

 

The applicant remains in Conditional Lawful Residence status during the I-829 application review process, even if the application has not been finalized before the expiration date.  The Conditional Permanent Resident status is typically extended in one year increments or until the I-829 application is approved by the USCIS.

 

 

EB-5 Guidelines (As posted on EB-5 Exclusive)

Like so many things in life, there are certain rules, procedures, and parameters that must be followed in order to successfully complete the application process of the EB-5 Investor Visa.  In this section we have outlined and listed the most common questions and have outlined the process of the EB-5 Visa application.

1. EB-5 Investment Requirements
2. EB-5 Job Creation Guidelines
3. What is the I-829 petition or “Removal of Conditions?”
4. Family Relationships and the EB-5 Visa
5. The EB-5 Application Process

EB-5 Investment Requirements

The law requires that the foreign applicant to have invested in or be in the process of investing the necessary capital into an approved EB-5 project.

Amount of capital

• The basic EB-5 Visa investment amount is USD$1,000,000.  However the required investment is USD$500,000 for an established business in a Targeted Employment Area (TEA) which is defined as an area with an unemployment rate of 150% or more above the U.S. national average or in a rural area (defined as being within the boundary of a city or town with a population of 20,000 or less). 
• The mimimum investment amount for Guam is USD$1,000,000.

Types of capital

• Investment in the EB-5 Visa program can be made in the form of cash, cash equivalents, equipment, inventory or other tangible property.
• Capital does not include loans made by the investor to the venture, however the investor may borrow the investment money if it is secured by assets owned by the investor, provided the investor is personally liable for repayment of the loan
• The investor may receive a gift of funds, if all applicable taxes required by law have been paid.

Source of capital

• When the investment is made into the respective project the USCIS is notified. The current guidelines indicate a required investment for a TEA at USD$500,000.  Prospective investors are eligible to invest the required amount alone, create a qualifying business with other foreign investors and/or with a U.S. citizen or other people not seeking classification as a foreign investor.  In these types of cases, all persons seeking classification as a foreign investor must have invested the required amount of USD$500,000, however each investor can use the same employees to reach the required 10 new positions.

“At risk”

• The USCIS requires validation that all capital investments are classified as “at risk” with no guarantees being made by the project to the investor.  This is to confirm that the capital will actually be used for the purpose of creating jobs and profit-generating activity.  Proof of actual business activity is also required and the use of capital investment for expenses or reserve accounts unrelated to job creation does not constitute “business activity”.

Verification of lawful source

• Proof that the capital has been invested by the actual investor is required.  The documentation should trace the capital from the investor directly to the investment.
• The USCIS also requires that the investor provide documentation that proves the source of their investment funds was obtained legally.  Proof of documentation is provided through previous tax returns and financial statements

EB-5 Job Creation Guidelines

A requirement of the EB-5 visa is that each investment of either USD $1,000,000 or USD $500,000.00 must help to create jobs.  If for instance the money is invested into an approved Regional Center then this project must be located in a targeted area (also known as a TEA) and must create or sustain 10 full-time jobs for US citizens, lawful permanent residents or other immigrants legally authorized to be employed in the United States.

An important advantage to investing in a project with Regional Center designation is the “indirect” nature of the job creation, which is less difficult to achieve than the “direct” creation of 10 new jobs. The requirement of creating at least 10 new full-time jobs can be satisfied by showing that as a result of the investment and the activities of the new enterprise at least 10 jobs will be created indirectly in the region through an employment creation multiplier effect. These Jobs do not have to be directly related to the project and can now include certain construction jobs during the construction phases of the project. Jobs can also be counted that were created by the investment and located in the region. Forecasting tools which support the likelihood that the business will result in increased employment may be utilized.

• A Full-time position is defined as working a minimum of thirty-five hours per week.

• Two employees may share a full-time position, however part-time employment will not qualify. Therefore, a combination of two or more part-time positions will not fulfill the necessary requirement of the guidelines, even if the positions created jointly meet the 35-hour per week minimum.

• The jobs must be proven to exist at time of application or there must be proof that the required jobs will be created before the end of the two-year period of Conditional Permanent Residence. If the jobs are expected to be created during the two-year period a comprehensive business plan outlining the need and purpose of the 10 new positions must be included with the investor’s application.

What is the I-829 petition or “Removal of Conditions?”

The granting of the EB-5 Visa or the approval of the Adjustment of Status followed by the entry into the United States means that the EB-5 investor, their spouse and qualifying children have been granted Conditional Permanent Residence status for a two year probationary period. After that time the “conditions” must be removed so that the aliens may reside in the United State indefinitely. Failing to remove these conditions under the removal guidelines may result in termination of the Conditional Permanent Residence status and will more than likely result in removal proceedings.

It is necessary to file a petition to remove these probationary conditions during the last 90-days of the 2 year term (prior to the second anniversary of the investor’s official admission as a permanent resident). This process usually begins about 21 months after the conditional green card has been issued. Upon the conclusion of the two-year period, the USCIS will examine the business investment to determine whether or not the investor has complied with all necessary requirements.

At that time the foreign investor, must reconfirm that 100% of the investment has been made and as a result the 10 required jobs have been created or saved. The foreign investor must demonstrate continuous maintenance of the investment since becoming a Conditional Permanent Resident. The Managing Partner of the investment project is required to provide supporting documentation at the request of the investor to aide in the application of Removal of Conditions.

While the I-829 application is in the review process the Applicant remains in Conditional Lawful Residence even if the application is still not finalized before the expiration date. Typically the Conditional Permanent Resident status is extended in one-year increments or until the I-829 application is approved by USCIS.

Family Relationships and the EB-5 Visa

The parameters under which family members of the investor can qualify for the Conditional Permanent Residence or as a Lawful Permanent Resident are as follows:

Spouse

• Spouses of the investor are permitted to accompany or follow the investor who has been granted their Conditional Permanent Residence. This is provided that the investor and their spouse who is deemed a derivative beneficiary were married at the time the investor’s original admission to the United States as a Conditional Permanent Resident or at the end of the two-year conditional period when citizenship status will adjust to Lawful Permanent Resident. It should be noted that Common Law marriages will not be recognized for the purpose of permitting a spouse to qualify as a derivative beneficiary. A relationship considered to be Common Law, will not permit the ‘spouse’ of the investor to acquire Lawful Permanent Residence on account of the status of the relationship.

Children

• Children and/or Step-Children of the investor are permitted to accompany or follow the investor who has been granted their Conditional Permanent Residence. This is provided that the investor can establish legitimate parent or step-parent lineage at the time of the investor’s original admission to the United States as a Conditional Permanent Resident or at the end of the two-year conditional period when citizenship status will adjust to Lawful Permanent Resident. Failure to comply with these requirements upon the initial application process may result in the separation of a child from the investor or the investor’s spouse for an extended length of time and in some cases years at a time, while alternate immigration opportunities are explored in effort to reunite the family.
• The US Government considers a ‘child’ as someone who is under the age of 21 and who is not married. If a child of the investor reaches the age of 21 or marries prior to admission to the US under the Conditional Permanent Residence or prior to the conclusion of the two-year conditional period when citizenship status will adjust to Lawful Permanent Residence, the former child, now considered a son or daughter, may not be eligible to accompany or follow the investor to the US. In some instances, the Child Status Protection Act may assist a son or daughter to qualify as a ‘child’ by reducing their age to less than 21 years. If the requirements of the Child Status Protection Act are not met, it may result in the separation of a child from the investor or the investor’s spouse for an extended length of time and in some cases years at a time, while alternate immigration opportunities are explored in effort to reunite the family.
• Circumstances where a child who turns 21 years of age or who married while the investor is within the Conditional Permanent Resident time period and in cases where the spouse and the investor become divorced, the child or the spouse may be eligible to remove conditions by being included in the investor’s I-829 petition or by filing a separate I-829 petition. Meeting the US Government qualifying conditions may not be within the control of the child or divorced spouse. As a result, the child or divorced spouse may become involved in removal proceedings through the US courts or be required to depart the United States.

In the case of death

• In the unfortunate case of death to the investor holding Conditional Permanent Resident status the spouse and qualifying children holding the same status are entitled to seek removal conditions by submission of the same evidence which demonstrate compliance under the same required criteria in which the investor would seek to remove conditions. Failing to establish this criteria will result in the denial of application to remove conditions, place family members in removal proceedings through the US courts and mandate immediate departure from the U.S.
• The USCIS does not clearly outline if a child who becomes a son or daughter before death of the investor is entitle to request removal conditions. If it is found that the USCIS does not extend this benefit, the son or daughter would be denied application to remove conditions and would be placed in removal proceedings through the US courts and be required to depart the United States.

The EB-5 Application Process

When considering an investment into an approved EB-5 Regional Center there are several steps and procedures that must be followed. 

To Apply

A potential investor is required to file a petition with the US Citizenship & Immigration Services (USCIS).  Upon approval of this application, the investor and immediate family (which includes spouse and single children under 21 years of age) may apply for an Immigrant Visa at the US Consulate or if the investor is already located in the United States, apply for an Adjustment of Status at any regional USCIS office.

The initial resident status that is granted is “conditional” for a period of two years.  Prior the termination of this two-year preliminary period, the Conditional Permanent Resident must file an additional application with the USCIS to request removal of the conditions (referred to as the filing of the form 829).  If the investor has demonstrated that they invested and/or was actively in the process of investing the required capital, the investor maintained the investment throughout the two-year conditional period and the required jobs were created, then the application should be approved.

To Invest

1. The Initial Deposit:A prospective investor is required to make a USD$10,000 deposit to reserve a position.  The deposit is fully refundable after 45 days, which is the time frame that allows for due diligence. An Offering Memorandum, Limited Partnership Agreement and Business Plan will then be provided to the investor, upon receipt of the initial deposit for respective project they are choosing to invest into. Additionaly an Investor Questionnaire will be provided and needs to be completed in its entirety for submission and review to USCIS.  If the investor chooses to terminate the agreement within the 45 day review period, then the initial deposit is FULLY refundable.
2. Complete the Investment:To complete your EB-5 investment application, the remaining deposit amount of USD$40,000 must be paid (this brings the total amount of money you have paid up to this point to be USD$50,000 within the 45 day review period.  The remaining balance of the required investment, plus the additional and separate Administration Fee* is to be paid within 60 days thereafter.  At this time the funds are then invested into the investment project to stimulate the local economy as planned and the invested funds will also begin to earn bank interest until expended into the project. (*the full amount of the Regional Center administrative fee will vary depending on the Regional Center subscription agreement.)

Timing

The entire application process may take nine to fifteen months to be fully complete.  The USCIS is currently taking about two months to process the EB-5 applications.  Prior to submission, time is required to conduct due diligence, make the investment and prepare the documentation which supports the petition, complete background checks and source all funds.  If the investor is in lawful status when the EB-5 application is approved, they will be eligible to apply for Adjustment of Status to Conditional Permanent Resident without having to leave the United States. This application process may take up to six months or longer to be decided.  If the investor is not based in the United States they will apply for an Immigrant Visa at their local US Consulate or Embassy, a process which may take up to six months or longer to be approved, depending on the country they reside.

Recommended steps in the process

1. Contact GSDRC (or Exclusive Visas) for a consultation (and allow their advisors) to review and discuss the necessary details on applying for the EB-5 Visa.
2. Discuss the commitment of funds and research the required documentation needed to prove the money is from a lawful source and belongs to the investor as well as confirm the capital investment is in fact financially viable.
3. Upon completion and clearance of capital, officially make the capital investment into an approved Regional Center project.
4. File the application with the USCIS. The application to petition citizenship requires that the USCIS certify the eligibility of the applicant and the funds for investment for EB-5 status.
5. Upon approval of the application, if the investor is in the United States they may apply for an Adjustment of Status to the Conditional Permanent Resident status. If the investor is overseas, they must wait for notification from the National Visa Center to prepare documents for the Immigrant Visa Interview at the US Consulate or Embassy in the country they reside. It should be noted that the purpose of the Adjustment of Status or the Immigrant Visa Interview is to ensure the investor is not subject to grounds of exclusion.
6. Upon being granted the Conditional Permanent Resident status, the wait period is 21 months to reconfirm that 100% of the investment has been made and as a result the 10 required jobs have been created (if required, based on the type of investment made).
7. Once the wait period of 21 months has ended and before month 24, the application to remove Conditional Permanent Resident status (Form I-829) will be filed.
8. A full Lawful Permanent Resident status or ”Green Card” will be granted for indefinite resident status and work permission in the United States once Conditional Permanent Resident status is removed.  US Citizenship will be possible 5 years after the Conditional Green Card is issued and once satisfactory residence and additional criteria have been met.

 

EB-5 Immigration Questions

The following is a list of the most frequent questions that are asked of our staff with regard to Immigration and the EB-5 Investor Visa.

1. What is the I-526 Petition Process?
2. What is an Escrow account? How am I protected against losing my money with an escrow account?
3. What is the difference between a conditional and unconditional green card?
4. Am I eligible for employment in the US while the Adjustment of Status is being processed?
5. The investor’s money must be gained from a lawful source, what does this mean?
6. Am I required to be in good health when applying for an EB-5 Visa?
7. If I live in the United States but do not have currently have a visa, am I eligible to apply?
8. If the USCIS approves my I-526 petition, why is the Consulate application and interview still necessary?
9. Are there a minimum number of days I must remain in the United States each year? What if I need to leave the country?
10. What level of business experience or education is required?
11. Is fluency in English a mandatory to be approved for an EB-5 Visa?
12. Do you file the form I-526 after the investment is made or during the Consular process for admission to the U.S.?
13. Once my permanent residency is granted, can it be taken away?
14. Who receives the permanent residency with an EB-5?
15. How long will the permanent residency be valid for?
16. What is the I-829 petition or “Removal of Conditions”?
17. Is overseas travel permitted while the I-485 Adjustment of Status is being processed?
18. What is the difference between permanent residency and citizenship?
19. What is the difference between Consular Processing and Adjustment of Status?
20. If the USCIS has denied previous applications for an L-1, E-2, B or other visa, am I still eligible to apply for the EB-5?
21. Are family members able to interview in different countries after the petition is approved?

What is the I-526 Petition Process?

A potential investor is required to file a form I-526 for Alien Entrepreneur in conjunction with the documents supporting the EB-5 Investor Visa program requirements. Upon approval of this application, the investor and immediate family (spouse and single children under 21 years of age) may apply for an Immigrant Visa at the US Consulate or if the investor is already located in the United States, apply for an Adjustment of Status at any regional USCIS office.

The entire application process may take nine to fifteen months to be fully completed. The USCIS evaluates and judges I-526 applications based on, (but not limited to) the following criteria:

• New Commercial Enterprise: evidence must indicate that the business is new and authorized to transact business.

• Investment Capital: The application must be supported by documentation which shows that the investor has invested or is in the process of investing the minimum amount of required capital.  USCIS will expect that these funds to be classified as “as risk”, indicating an irrevocable commitment to the business investment.

• Source of Capital: Documentation must be provided which supports the legal acquisition of funds. If assets are not deemed to be lawfully acquired, the USCIS will deny the I-526 petition.

• Managerial Role: If the investor is investing in the Basic EB-5 Program, he/she is expected to actively participate in the management of the business venture through policy development and holding a management position.
  
  NOTE: If the goal is to obtain a green card and play a more passive role in the investment, participating in the EB-5 Regional Center (Pilot) program is the specific and appropriate category to make an investment.

• Amount of the Investment: The I-526 application must show evidence that the required minimum investment of USD$1,000,000 or USD$500,000 for designated Regional Centers located in a TEA has been made.

• Employment Creation: The EB-5 Investor Visa program requires that 10 jobs for U.S. Citizens be created on account of EACH investment that is made. Please refer to the EB-5 Job Creation Guidelinessection for further details.

The USCIS will approve the I-526 application for Alien Entrepreneur only if the above listed criteria has been met. It is at the sole discretion of the USCIS to determine if this criteria has in fact been met accordingly and the USCIS may request further information.

What is an Escrow account? How am I protected against losing my money with an escrow account?

For many people who are considering an EB-5 Investment their is concern as to how safe their money will be while waiting for the approval of their I-526 application and acceptance into the EB-5 program.  During this time the Investor’s deposits and funds will be held in an “Escrow Account”.

An Escrow Bank Account is a legal, interest-bearing account established in a chartered bank.  An Escrow account is most commonly used in the sale of real estate, businesses and personal property and is governed under different and more strict rules than a common bank account.

The initial deposit from you (the investor) is placed in an interest-bearing escrow bank account.  When the account is established the assets continue to belong to the investor.  The investor has an agreement with the bank or attorney that requires the assets to be transferred from the escrow account to the EB-5 Project’s bank account upon approval of the Investor’s EB-5 application by the USCIS.

What is the difference between a conditional and unconditional green card?

Under the regulations an investor who is approved for the EB-5 Immigrant Visa receives a “conditional” green card becuase of the requirements that must fulfilled in the commitment of the investment and creation of the jobs that their money is to be used to create.  This conditional status must be either reissued after two years or is subject to removal of conditions through the application of form I-829.  Otherwise, the two cards offer the same rights and privileges with the excpetion that the Unconditional or permanent green card is good for 10 years between renewals.

Am I eligible for employment in the US while the Adjustment of Status is being processed?

The “Adjustment of Status” is also known as the filing of the form I-485.  Unless the Applicant has been admitted to the United States with a Non-Immigrant status that grants him/her the authorization to work and this authorization does not expire before the Adjustment of Status is granted, then the applicant must obtain the necessary authorization to work.

Authorization for employment typically takes 60-90 days and processing times could be longer if background checks on the applicant are required.  Authorization for employment is usually granted during the time required, but no longer then one year and it may be necessary to re-apply for authorization if the Adjustment of Status is not complete by the expiration date of the granted employment authorization.  Employment without authorization at any time in the U.S. is a violation of immigration status and may jeopardize the right to adjust status.  It is strongly reccomended that this issue be discussed with the Immigration Attorney who is handling your applicaiton.

The investor’s money must be gained from a lawful source, what does this mean?

This is often a very big hurdle for many potential EB-5 Investors to overcome and prove that the money or funds which are being used for the EB-5 investment have come from a legal and traceable source.  The regulations set forth by the USCIS require that the foreign investor verify that the investment assets were gained in a lawful manner.  This means that the investor must prove the funds were obtained through a business, salary, investment, property sales, monetary gift, inheritance, loan or other means and be legally traceable.

Am I required to be in good health when applying for an EB-5 Visa?

You are required to prove that you are in good health when applying for an EB-5 Visa.  At the time of application and when you are present for your interview at the U.S. Consulate or U.S. Embassy,  the applicant, the Spouse and any unmarried children under the age of 21 that are going to be applying for conditional residency status will be required to undergo physical examinations and may be required to provde medical records for review.

If I live in the United States but do not have currently have a visa, am I eligible to apply?

Yes, if you are currently living in the United States without a proper Visa you are still eligible to apply for an EB-5 Investor Visa.  However you are not permitted to apply from within the United States.  Out-of-status individulas are considered to be Students, Tourists or E-2 Treaty Investors who no longer have a valid Visa because they may have remained in the United States after their previous Visa was revoked or has expired.

If the USCIS approves my I-526 petition, why is the Consulate application and interview still necessary?

There is a number of reasons why the Consulate application and interview are still required.  However the primary reason is that the U.S. Consulate in your home country must prepare documents for the Visa interview upon approval of the I-526 application.  This procedure is required to ensure that the investor and their family members undergo medical exams, police, security and immigration history checks before the Conditional Permanent Resident Visa is issued.

During the interview process the Consulate will address these issues, request that the investor provide a summary of what the nature of their investment is and discuss the information included in the I-526 application.  If the investor, their spouse and family are already based in the United States, an Adjustment of Status may be applied for by filing form I-485 with the appropriate USCIS office.

Are there a minimum number of days I must remain in the United States each year? What if I need to leave the country?

Upon receipt of the visa from the U.S. Consulate or Embassy in the country the investor resides, the investor has 180 days to enter the United States to establish residency.  Proof of establishing residency is done through obtaining a driver’s license, social security number, opening a bank account, paying federal or state income taxes or renting/buying a home.

Once residency is established the investor may work overseas if it is required due to the nature of their business or profession, but all permanent residents must remain in the U.S. for more than 6 months each year and unless the USCIS is informed in advance of an extended absence the U.S. government will consider them to have abandoned their permanent resident status.

Legal permanent residents are subject to important restrictions when it comes to “Abandonment of residency” rules.  You are permitted to travel abroad as long at the trip is temporary and it is advised that a re-entry permit be obtained before departure.