EB5 Visa is also known as “Million Dollar Investor Visa”.
The EB-5 visa category was created by the United States Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors.
Through the Immigration Act of 1990 Investor VISA Program, Congress enacted the Immigration Act of 1990, which includes a program permitting foreign investors to obtain permanent residency in the United States.
To Qualify and attain the status three basic requirements must be met:
* Investment in a new business.
* Investment of at least $1,000,000 (1 Million) in Metropolitan Cities and $500,000 in Sub-Urban areas as the business capital.
* Creation of employment for at least 10 full-time U.S. workers.
The basic requirements for an EB-5 visa are:
The foreign applicant must independently establish a business OR invest into an existing business which was created or restructured after 19 November 1990.
The foreign investor is required to invest USD$1,000,000 into the aforementioned business (or USD$500,000 when investing into a USCIS designated regional center).
The investment must create at least ten Full-time jobs for legal U.S. residents or citizens.
For more detailed and comprehensive information on the requirements for an EB-5 Investor Visa and to obtain the official U.S. government information regarding the EB-5 Immigrant Investor Program and the Regional Centers Pilot Program, please visit the US Citizenship & Immigration Services (USCIS) website.
When considering an investment into an approved EB-5 Regional Center there are several steps and procedures that must be followed.
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.
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.
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.
A requirement of the EB-5 visa is that each investment of either USD $1,000,000 or USD $500,000 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
In an effort to dissuade fraud, the EB-5 Visa foreign investor, their spouse and any dependent children are subject to a Conditional Permanent Residence status for a two year probationary period. The EB-5 primary applicant is required to file a petition to remove these probationary conditions during the last 90-days of this 2 year term (prior to the second anniversary of the investor’s official admission as a permanent resident). Upon the conclusion of the two-year period, the USCIS will then examine the business investment to determine whether or not the investor has complied with all necessary requirements.
Submission of the foreign investor application to the USCIS is required to include the following:
▪ Verification that a new commercial enterprise has been established, such as a business license, articles of incorporation and/or evidence of transfer of initial capital investment required to purchase or invest in an existing business
▪ Verification that the necessary amount of capital has been placed at risk through bank statements validating deposit of funds into the business account, purchase of business equipment, transfer of property or evidence of funds transferred to the business account in exchange for shares of stock
▪ Proof that the capital invested was legally gained, such as foreign business registrations, tax returns or certified copies of civil or criminal judgments
▪ Proof that the foreign investment created the necessary 10 full-time employment positions, through tax returns, Forms 1-9 or if employees have yet to be hired a detailed business plan which demonstrates that the business will require a minimum of 10 new full time employees within two years. If the investment is made in an existing business experiencing financial difficulty, the foreign applicant must submit proof that current employment positions will be secure for at least two years
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:
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 and/or Step-Children of the investor are permitted to accompany or follow the investor who has been 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 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 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.
There are multiple avenues by which a foreign investor can attempt become a Lawful Permanent Resident of the United States. One of those ways is by using capital to stimulate economic growth. Thus helping to create new jobs or preserve existing jobs for US Citizens. This is most commonly referred to as the EB-5 Investor Visa
In 1990, when Congress passed Section 203(b)(5) of the Immigration and Nationality Act, the primary objective was to encourage foreign investment of capital which would create jobs and benefit the U.S. economy. As a result of this investment, foreign individuals who used capital to infuse the U.S. economy and who also met certain requirements could be granted legal, Lawful Permanent Residence in the United States.
The U.S. Government issues 10,000 of these EB-5 investment visas every year, setting aside just 3,000 of these visas for those people who choose to invest and immigrate through a designated and approved EB-5 Regional Center.
The foreign investor must complete three phases of the application process become a permanent US resident:
To obtain immigrant investor status, the foreign investor to submit a completed Immigrant Petition by Alien Entrepreneur Form (Form I-526) to US Citizenship and Immigration Services (USCIS) along with supporting documentation clearly demonstrating that the investment meets all EB-5 requirements. Upon approval of the I-526 Petition, this will be the foundation for Step 2.
If the foreign investor is residing within the US and has received Form I-526 approval, he or she may obtain conditional resident status by submitting a completed Application to Register Permanent Residence or Adjust Status (Form I-485) to USCIS. If residing outside the US, the foreign investor must apply for an immigrant visa at a US Consulate abroad.
During the 90-day period prior to the expiration of the conditional period, the investor should file a completed Petition by Entrepreneur to Remove Conditions (Form I-829) to USCIS. In this petition, the foreign investor must demonstrate that the investment was sustained over the two-year conditional period, and the requisite jobs were created. Upon approval of the I-829 petition, the conditional nature of the green card is lifted and full permanent residence is granted to the investor and the investor’s family members less than 21 years of age.
Professional Background: You must prepare complete biographical information for each applicant and the principal applicant must prove the source of the investment funds. A résumé with copies of college diplomas and other educational certificates, if applicable, should be included. Any memberships in professional organizations should be documented. Unless the investor inherited the funds, the investor should be presented as a successful professional or businessperson with a business, financial or family history that explains the accumulation of financial net worth that is presented in the financial information. Provide as much documentation as possible that pertains to the career and achievements of the Investor.
Source of Funds: Funds for the investment must come from a lawful source. Lawful sources of funds include: profits from the sales of a property, stocks or bonds, profits from business, business transactions, gifts, and inheritances. To prove the source of investment funds, USCIS requires five years of tax returns, five years of bank records, proof of ownership in any businesses, financial statements for each business and business licenses. The idea is to present a track record of an honest course of dealing. If your capital came from a specific transaction, such as sale of a house, inheritance or gift, you must prove the transaction occurred, by providing an official document, such as a closing statement or contract or other official documents. This is not an exhaustive list of documents. Other documents may be required and vary on a case-by-case basis.
All documents included in the application must be translated into English in a proper Affidavit format.
Under the regulations, an investor who is approved for the EB-5 immigrant visa receives a “conditional” green card, which must be reissued after two years, subject to removal of conditions. Otherwise, the two cards offer the same rights and privileges. A conditional Green Card is a temporary Green Card valid for two years. One year and nine months after it is issued, a three-month window opens up during which an individual must file another application with the USCIS to verify that all of the funds have been invested and the required employment has been created. When the conditional resident status has been lifted, full resident status is granted and a permanent Green Card is issued.
Upon approval of I-526 Petition:
(a) If you are residing outside the U.S. you must wait for notification from the U.S. Consulate in your home country to prepare documents for the visa interview. The purpose of this procedure is to ensure that the investor and his or her family undergo medical, police, security and immigration history checks before the conditional permanent resident visas are issued. At the interview, the consulate officer may address these issues and information printed on the I-526 application, including asking the investor to summarize the nature of his or her immigrant investment.
(b) If you are in the United States, then you may apply for adjustment of status by filing form I-485, and supporting documents, the application may be filed at the appropriate office of the USCIS.
Rejection in the past does not disqualify the applicant, unless the reasons relate to immigration fraud or other grounds of inadmissibility or removability. It is most important that all criminal, medical, or U.S. immigration history problems be disclosed to the limited partnership and legal counsel in advance of application.
Family members can interview in different countries. The country of origin or where the family has current ties is the standard interview site. Often one member of the family is located in another country, such as a student attending school in the U.S. The student does not have to return to the country of origin and can adjust status in the United States at the district office of the USCIS.
Husband, wife and any unmarried children under the age of 21. It is possible for adopted children to be included in the family. Upon approval you will receive the Conditional Resident Alien Card via the mail.