EB5 Visa (Investor Green Card Program)

The EB-5 Visa is open to foreign investors who can devote bona fide capital between $800,000 and $1 million to U.S. businesses. If you wish to invest a smaller amount of funds, you can still check your E2 Visa eligibility. Similarly, the U.S. immigration law welcomes foreign traders under the Treaty Visa tier.

Applicants can work individually or be part of a larger pool of investors who are approved as a third-party intermediary. The EB5 program is targeted to help the development of rural areas in the U.S. that have a high unemployment rate.

Based on the investment activity, there are different tiers of EB-5 Visas:

• C-5 Visa, for investments outside the target areas
• T-5 Visa, for investors interested in areas with a high unemployment rate
• R-5 Visa, for participants of an Investor Pilot Program but not engaged in target areas
• I-5 Visa, for business investors who work in specific regions under an Investor Pilot Program

Any EB-5 petitions filed on or after November 21, 2019, must meet the following investment requirements:

• invest in a new commercial enterprise, established after November 29, 1990
• you can still invest in older commercial enterprises if your contribution leads to a significant increase in the net worth (at least a 40% increase)
• you need to make an “at-risk” capital investment of $1 million

The minimum amount of capital required for the EB investor program can be decreased to $800,000 if you invest in a targeted employment area (TEA). These are areas where the unemployment rate is at least 150 percent of the national standard.

Moreover, to be eligible for the Investor Visa you must meet further job creation requirements:

• your investment must result in the creation of at least 10 full-time jobs for qualified U.S. workers
• this result must be obtained within two years after your visa approval

Qualified U.S. workers include US citizens, green card holders, or any U.S. resident who is authorized to work. In order to qualify for full-time employment, employees must receive at least 35 working hours per week.

Furthermore, the investment capital must be from a legal source. Accepted investment forms include cash or cash equivalents, equipment, inventory, or tangible property. In addition, immigrant investors cannot invest in non-commercial activities. Accepted commercial enterprises in which the applicant can invest include the following:

• Sole proprietorships
• Limited and general partnerships
• Holding companies
• Joint ventures
• Corporations
• Business trusts
• Other privately or publicly owned business structures

In addition, foreign nationals who invest in troubled businesses based in the United States may also be eligible for an EB-5 visa. Individuals who would like to invest in a troubled business with plans to help it from going under will need to prove the following:

• The business has been operating for at least 2 years
• The business has experienced annual losses of at least 20% of its net worth at some point over the last 24 months prior to investment/purchase

Investors must still invest the full amount of capital required in their troubled business and will not be required to prove that they have created at least 10 new jobs. However, the investor will need to prove that in the 2 years since the date of investment/purchase, they have kept the same amount of workforce that was employed before investment or company purchase.

Successful applicants must invest at least $1 million in a new commercial enterprise (new is considered to be established after 29th November 1990). New enterprises must create at least ten full-time jobs for qualifying workers.

Businesses existing before this date can be considered if they are restructured to generate at least a forty percent increase in the net worth or number of employees incurred.

For applicants interested in investing in Targeted Employment Areas (TEA), the investment is limited to $800,000. However, the area must have an unemployment rate of 150 percent of the national average.

All the investment (including inventory and equipment) must be acquired by lawful means.

Applying for an EB-5 visa can be complicated, so it is strongly advised that all applicants seek advice and guidance from an experienced immigration attorney. Overall, the steps to apply for an EB-5 visa are as follows:

1. The visa applicant finds a qualifying investment project that meets the requirements for the Immigrant Investor Program
2. After an investment has been made, the applicant can then file an EB-5 petition. In order to do this, the applicant will need to file Form I-526 (Immigrant Petition by Alien Entrepreneur) with USCIS.
3. The USCIS will review the application and if approved will transfer the case to the National Visa Center (NVC)
4. The NVC will assign the visa applicant a priority date. When the priority date becomes current, the applicant will then need to complete DS-260 (Application for Immigrant Visa and Alien Registration)
5. Pay the required fees and gather the necessary supporting documents
6. Schedule and attend an interview at the nearest U.S. Embassy or Consulate
7. After the interview, the applicant will receive a decision on whether or not they are approved for an EB-5 visa

Those who are applying for an EB-5 visa from within the United States will need to file Form I-485 (Application to Register Permanent Residence or Adjust Status) instead of applying at a U.S. Embassy or Consulate.

Form I-526 (Immigrant Petition by Alien Entrepreneur) is the first and main form to submit when applying as a foreign investor. This form can be found and downloaded from the official USCIS website.

As the EB-5 visa is a self-petitioning visa, the applicant can complete the form without the need for employer sponsorship. After the applicant submits their I-526 form and submits it to USCIS, they will receive a decision on whether or not they can proceed with the rest of the EB-5 visa application process.

Those who are living abroad when their I-526 application is approved will need to obtain an immigrant visa before coming to the United States. In order to do this, the applicant will need to complete and submit DS-260 (Application for Immigrant Visa and Alien Registration). This form can be completed online and after submission will show a confirmation page with a confirmation number. It is important that the applicant prints out this confirmation page as it will need to be submitted later with other documents in the applicant’s portfolio of evidence.

After the DS-260 is completed, the applicant will then need to attend a visa interview at the nearest U.S. Embassy or Consulate. After this interview, the applicant will receive a decision on whether their visa application was accepted.

Those who are already living in the United States under another U.S. visa when their I-526 form is approved will need to adjust their status by filing Form I-485 (Application to Register Permanent Residence or Adjust Status).

After the I-485 Form is approved, the applicant will be given conditional permanent residence for at least the first 2 years of the applicant’s residence in the United States. Conditional residence can be removed if the applicant has been found to have fulfilled their employment and investment promises.

Conditional residence can be removed and the applicant will be able to gain permanent resident status if they file Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) within 90 days of their conditional residence expiration. This form will be approved if the applicant can adequately show that they have invested or are continuing to invest in a commercial enterprise that investment resulted in jobs created.

Once the EB-5 visa holder has lawful permanent resident status, they can freely live, work and study in the United States with their green card which lasts for 10 years and can be renewed indefinitely. If they choose to do so, the applicant can apply for United States citizenship after 5 years of continuous residence.

There are a number of supporting documents that the visa applicant will need to submit to prove that they are financially able to make a substantial investment in the United States, that the investment is a job-creating entity that is viable in the long run, and that the visa applicant is eligible for an immigrant visa. Overall, the applicant will need to submit a number of documents which may include the following:

Personal Documents

• A valid passport
• Birth certificates of you and any accompanying family member
• Marriage certificate (if your spouse is applying to come to the United States with you)
• Police and court records
• Medical examination forms

Documents proving that the applicant possesses the required capital for investment. These can include the following:

• Evidence of other sources of capital
• Bank statements
• Income quarterly tax statements
• Income tax returns

Documents related to the applicant’s investment in the United States. These can include the following:

• Evidence of investment or active process of investing
• Business registration records
• Business tax returns
• Evidence of creating at least 10 full-time job positions
• Investment invoices and receipts
• Evidence of contracts
• Payroll records

Documents related to the U.S. visa

• Form I-526
• Form I-829
• Filing fee receipt
• Form DS-160 confirmation page (if abroad) or Form I-485 (if adjusting status in the U.S.)
• Two passport-style photographs

Needless to say, there are a number of documents that will need to be submitted. Therefore, it is highly recommended that the EB-5 visa applicant seeks legal guidance from an experienced immigration attorney who is up to date with the protocols and knows what required evidence is needed to support the visa application.

Individuals who are applying for an immigrant visa to the United States will need to undergo a medical evaluation to determine that they are healthy enough to not pose a risk to public safety. In addition to a medical examination, the visa applicant will also be required to receive the necessary vaccinations.

After the applicant’s Form I-526 is approved, he or she will be instructed to undergo a mandatory medical examination. This medical exam should be done by a certified doctor or medical practitioner. The doctor will need to sign forms stating that the applicant has undergone a medical evaluation, is healthy enough to not pose a health risk to the general public, and has received the required vaccinations.

More information regarding the medical exam and vaccinations will be sent to the visa applicant in an informational packet sent by the NVC. This medical exam should be completed before the visa interview.

This visa interview is the last stage of any immigrant visa application process. If the applicant is abroad, this will take place in the nearest U.S. Embassy or Consulate. If the applicant is in the United States, this interview will take place at a nearby USCIS office.

At the interview, the applicant will be asked a series of questions regarding their application, background, and reasons why they wish to settle in the United States. Family members who are accompanying the principal applicant will also need to attend the visa interview.

The applicant will need to schedule a visa interview after their priority date has become current. It is also important to bring the required documents with you to the interview as you may need to submit them to the consular officer.

Individuals who apply for an EB-5 visa will need to pay the following visa-related fees:

• Form I-526 filing fee: $3,675.
• DS-260 processing fee: $325 (if applicable)
• Form I-864 (Affidavit of Support) filing fee: $120 (if applicable)
• Form I-485 filing fee: $1,140 (if applicable)
• Form I-829 filing fee: $3,750
• Biometric services fee: $85 per person (for those aged 14-78 years old)
• Medical exam and vaccinations: costs will vary
• Cost of the certified translations of necessary documents (if needed): costs will vary

In addition, the visa applicant will also have to pay additional fees for each accompanying family member.

Based on your country of origin, your petition process may vary. As a consequence, your EB-5 processing time may take as little as a few months to several years. You can periodically check on the EB5 Visa bulletin the state of your petition and the number of available permits for your nationals.

Applying for an EB-5 visa can get complicated, especially in the ever-changing U.S. immigration system. A lot of EB-5 visa applications can be rejected for any one of the following reasons:

• Inaccurate and inconsistent information
• Absence of important documents and evidence
• Wrong petition filing
• Criminal records or past U.S. visa infractions
• Lack of investment funds
• Illegal source of investment funds

If your visa is denied, you will receive a notice stating the exact reasons for its denial. In the denial notice, you will also be given information regarding if you are eligible to reapply for another visa or appeal the decision.

If the USCIS denies your visa application, your immigration lawyer may be able to help you do the following:

Motion to reopen

If the application is missing a relevant document or necessary evidence, you may make a motion to reopen the case. However, in order to do this, the new document or evidence must be substantial enough to warrant a change in decision.

Motion to reconsider

If you believe that the decision is wrong, you may make a motion to reconsider. This can be a complicated process, so it is highly recommended that you seek advice and guidance from an immigration attorney who has in-depth knowledge of U.S. immigration law.

If all else fails, you can also appeal your case to the USCIS Administrative Appeals Office (AAO) which will review your petition for any inconsistency that may have negatively impacted the visa decision.