The EB-5 visa program is an opportunity for foreign investors to become lawful permanent residents of the United States. This two-year conditional residency allows you to work in any company you choose and live anywhere you like.
EB-5 applicants must make a minimum investment of $900,000 into a commercial enterprise in a targeted employment area. This at-risk investment must create ten full-time jobs for U.S. workers.
Find an EB-5 Project to Invest In
EB-5 investors must invest at least $1,050,000 into a new business venture or investment project. It can be a new commercial enterprise or an existing business in a Targeted Employment Area. Regardless, the investment must create ten full-time jobs for American workers. Many migration agents specialize in sourcing projects and matching investors with compliant investments.
Recent EB-5 projects can be found in various industries including real estate, technology, call centers, etc. Generally, investment opportunities are found through regional centers. The EB-5 program also allows for direct investments, but direct investments must be made in a “New Commercial Enterprise” that is either an independent business or a regional center project.
A new commercial enterprise must be established after November 29, 1990, and meet specific additional requirements. It must also be managed by an individual who engages in the policy-making and day-to-day operations of the enterprise. Additionally, the investment must be at risk throughout the conditional residency. Many regional centers offer guarantees to mitigate this risk for investors, but an attorney should carefully vet these guarantees.
Prepare a Business Plan
A comprehensive business plan is a crucial component of the EB5 application process. It must be credible to USCIS adjudicators and show how a project will create jobs. It is essential to work with an experienced immigration attorney and a writing service that has EB-5 experience to ensure your business plan complies with USCIS requirements.
The plan must detail the products or services that the new commercial enterprise will offer, market analysis (including competition and pricing), organizational structure, background and experience of personnel, and financial projections. The plan must also demonstrate that the business is a for-profit enterprise engaged in lawful activity and list all permits and licenses obtained.
A detailed job creation plan is also required, demonstrating that the investment will create at least ten full-time jobs for U.S. workers for every EB-5 investor who contributes funds to the project. It must include a timeline detailing the jobs’ creation and specific job titles and descriptions. Economic and employment forecasts should support this information.
Invest Your Funds
As with any significant investment, specific rules must be followed when investing funds in the EB-5 program. Depending on how the investor derived their investment funds, they must provide extensive documentation to prove that those funds were obtained lawfully. It can include purchase and sale agreements, letters verifying the terms of a loan, business tax returns from the last several years, bank statements and balance sheets, and much more.
When investing in a project through a regional center, you must do your due diligence and select an enterprise with a good track record of success. It should also prove that it will create new jobs in the United States, directly or indirectly.
If you invest in a direct EB-5 project, it is essential to remember that there are limits on the number of visas available for investors each year. Once you have completed the EB-5 investment, your attorney will file an application for conditional permanent residency with USCIS. This process typically takes 18 to 24 months to complete.
File Your Petition
The EB-5 Visa program grants permanent residency (Green Card) to foreign investors who meet specific criteria. Specifically, they invest a minimum of $800,000 in a U.S. business, and that business must create ten full-time jobs for U.S. workers. Investors and their spouses and children under 21 can then apply for citizenship.
The amount of the investment depends on the location of the business, with a lower minimum required for investments in targeted employment areas (“TEAs”). In addition to investing the required funds, the investor must actively manage the business. It means that, unlike real estate investments, the business must be for-profit and engaged in commercial activities.
Additionally, the investor must prove that their capital was lawfully obtained. It is achieved through a process called “tracing,” wherein the investor must document each source of their capital, such as salary, investment distributions, and even proceeds from the sale of the property to the New Commercial Enterprise (“NCE”). Moreover, the NCE must submit audited financial statements for investors.
Remove Conditions on Permanent Residency
When you get your conditional green card, USCIS gives you two years to comply with the EB-5 program fully. That means creating ten full-time jobs for U.S. workers and keeping your investment at risk during that period. Once you’ve met those obligations, your attorney will file Form I-829 to remove the conditions on your permanent residency.
Typically, you and your spouse will file the petition together. It is possible for someone who does not have a spouse to file on their own, but only if they are eligible for self-petitioning under the Violence Against Women Act (VAWA). VAWA self-petitioners must demonstrate extreme hardship, which includes abuse or extreme cruelty by a spouse.
The new EB-5 Reform and Integrity Act of 2022 allows for people already in the United States on another visa, such as H1B workers, international students, or those with O or L visas, to file their petition for removal of conditions at the same time as they apply for adjustment of status. It’s still important to consult with your attorney regarding the optimal timing of these filings.
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