EB-5 is an immigrant visa category that allows investors and their immediate family members to becoming permanent residents, i.e., green card holders, through a minimum investment of $500,000.
AN OVERVIEW OF THE EB-5 GREEN CARD PROCESS
The EB-5 visa and green card process starts by making the appropriate investment. Then, once the full investment is in place, the applicant files Form I-526, Immigrant Petition by Alien Entrepreneur with USCIS. Once USCIS approves the I-526, the applicant has two options:
- seek a green card in the United States through the adjustment of status process (Form I-485); or
- pursue an immigrant visa at a U.S. consulate abroad.
A successful outcome results in a 2-year conditional green card.
Removal Of Conditions For Investors
For EB-5 green card holders, converting the 2-year conditional green card to a permanent green card involves a separate immigration process. This is achieved by filing form Form I-829, Petition by Entrepreneur to Remove Conditions with USCIS during the 90-day period before the 2-year conditional green card expires. In support of the I-829, the applicant must show that the EB-5 investment was made and sustained throughout during the 2-year conditional period and that investment created, or will create within a reasonable period of time, 10 full-time jobs for qualified employees.
Once USCIS approves the petition to removal conditions (Form I-829), the EB-5 investor receives a 10-year permanent green card. At that point, once the permanent 10-year green card is in hand, there are no longer any immigration law requirements that the capital must remain in the investment.
EB-5 THROUGH DIRECT INVESTMENT
When it comes to EB-5, there are 2 basic investment strategies: Direct investment or Regional Center. Compared with the regional center approach, the approval process for direct investors may be more challenging. The direct investment approach is appropriate for investors who are interested in running a business and who have substantial expertise doing so.
Eb-5 Regional Center Investments
Investments in a USCIS-designated Regional Center make up more than 90% of all EB-5 petitions. The Regional Center approach is essentially a passive investment, the main goal of which is to obtain permanent residency status. The Regional Center investments are specifically designed to meet EB-5 legal requirements. The benefit to EB-5 investors is that the I-526 immigrant petition is simplified, allowing USCIS to process it more quickly. By contrast, green card applicants pursuing an “individual” EB-5 investment must prove on a case-by-case basis that their self-directed investments meet all the various legal requirements including job creation.
Choosing The Right Regional Center
There are only a handful of Regional Centers with a strong historical track of record of achieving the ultimate goal of removing the conditions on residency. The investor should also scrutinize how job creation is documented and calculated and the economic models of job creation methodologies utilized for determining indirect job creation.
Proof Of Lawful Source Of Fund: A Big Challenge For Any Eb-5 Green Card Case
To get a green card through an EB-5 investment, you will be require to provide extensive documentation to demonstrate the origin of your investment capital and to prove that your investment money was obtained through lawful means. Required Source of Funds Documentation for EB-5 cases includes:
- 5 years of income tax returns (both personal and, if applicable, business returns); and
- “foreign business registration records” (corporate governance documentation for any businesses owned).
Here are some common questions about the EB-5 investor visa process:
Does it matter in which state the EB-5 Regional Center is located?
If you apply for a green card through an investment to an EB-5 Regional Center (as opposed to an individual investment), then you don’t need to live in the same state as the Regional Center where you have invested.The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.
“I live in the United States but am out of status. Would the EB-5 help me get a green card?”
The EB-5 may not be an option if you are out of status. By living in the United States without lawful immigration status, you may be deemed “inadmissible” because of “unlawful presence.” This would doom your chances of getting permanent resident status through the EB-5 Immigrant Investor Program. Other similar “inadmissibility” obstacles to success in the EB-5 program include:
- criminal convictions
- fraud and misrepresentation
- entry without inspection
- prior orders of deportation
- certain health issues
“Isn’t the EB-5 Investor Program just buying a green card?”
No. The EB-5 program is not an outright purchase of a green card. But it is financial transaction whereby you, and your immediate family member, can get permanent residency status in exchange for making a specific qualified investment.
“If I make an investment and go forward with the EB-5 process, can you, as an immigration lawyer, guarantee that I will actually get a green card? If I hire you, can you assure me with 100% certainty that USCIS approve my EB-5 case?”
No immigration lawyer can guarantee that any immigration case will have a successful outcome. That’s true for whichever lawyer who you chose to handle your EB-5 case. A general, theoretical uncertainty is something all EB-5 green card applicants must accept.
But keep in mind that there are certain Regional Centers with impressive track record of success with the EB-5 process. As an immigration lawyer, I encourage my EB-5 clients to consider choosing from select Regional Centers that already have proven successful at both the initial stage (Form I-526, Immigrant Petition by Alien Entrepreneur) and the removal of conditions (Form I-829, Petition by Entrepreneur to Remove Conditions).
“I’d like to get a green card through an EB-5 investment. But I’m worried about losing my money. Will my investment be safe? Can you assure me that I will get my money back?”
There is simply no such thing as a guaranteed or risk-free investment. Investments, by their nature, involve both the possibility of profit and risk loss. To qualify for a green card through the EB-5 visa process, the applicant’s investment capital must be at risk. Immigration regulations make clear that any investment that guarantees a specific return cannot be the basis of a successful EB-5 green card case.
EB-5 immigration lawyers are not qualified to provide advice about the economic merits of an investment. To evaluate investment risk, anyone seeking a green card through an EB-5 visa should conduct a thorough due diligence, ideally with a help with an independent investment advisor.
Your EB-5 Immigration Lawyer
Want to learn more about the EB-5 program? Do you have questions about whether the EB-5 program is right for you and your family? Please contact us and we would be happy to help you.