US Investors Visa – EB-5 for Immigrant Entrepreneurs

Each FY, USCIS makes available approximately 10,000 EB-5 visas to foreigners seeking to enter U.S. to invest in new commercial enterprise. Five employment-based visa preferences exist, with the EB-5 visa being the fifth.

The United States government established the EB-5 visa program on November 29th, 1990, to attract foreign investors to the United States in order to stimulate the United States economy and create jobs for U.S. citizens, permanent residents, and other foreigners authorized to work in the U.S.

EB-5 Visa Requirements

Foreigners that want to immigrate to the United States through EB-5 visa program must meet certain requirements put in place by USCIS.

Investment Capital: To get an EB-5 visa, you must invest the minimum of 800,000 USD in a qualified commercial enterprise, either in a rural or high unemployment location (a targeted area) or the sum of 1,050,000 USD outside a targeted area.

Source of Fund: You must prove that the investment fund was gotten lawfully. You can show documents proving the sale of assets like stocks, gold, and real estate, financial tax returns, pay slips for the last 10 years, or any other documents proving the fund’s lawful origin.

Job Creation: You must create and maintain a full-time job for at least 10 U.S. citizens, lawful permanent residents or foreigners in the United States with work authorization. You can create the job either directly by establishing a new commercial enterprise and then employing staff or indirectly by investing in a regional center project that in turn creates employment.

For Profit Commercial Enterprise: You must invest in a “for profit” enterprise and if you are creating a new commercial enterprise, then it must also be for profit.

The investment must be made to a company that was established after November 29 1990. In the case where the company was established on or before that date, the company must be new by virtue of a purchase, massive restructuring, or if your investment leads to a 40% expansion of overall worth or number of employees.

Investment Capital At Risk: The immigrant investors must consider the investment capital “at risk ” meaning that foreign investors don’t receive guaranteed returns on their investments. So you should keep your mind open to either loss or gains.

Documents Required

You must submit the following documents when filing your EB-5 visa petition.

International Passport: As an applicant, you should have ready your international passport that is valid for at least six months beyond your intended period of entry into the U.S.

Two 2×2 Passport Photograph: You must provide two passport photograph that meets the U.S. visa photo requirements.

DS-260 Form, Immigrant Visa Electronic Application: You need to complete this form and print out the confirmation page.

Civil Documents: You must present your civil documents like your birth, marriage and police certificate.

Completed Medical Examination Form: The U.S. immigration law requires that all Aliens seeking to enter the U.S. for immigration purpose to perform a medical examination regardless of age by an authorized panel physician.

- As an investor seeking to enter the U.S. to invest into the U.S. economy, you must undergo a medical examination. If you have family members that will be traveling with you to the U.S., they also have to undergo a medical examination. The National Visa Center (NVC) provides instructions regarding medical examination, as well as list of authorized panel physicians.

Completed Medical Vaccination Form: Aliens seeking to lawfully live in the U.S. must get vaccinated by an authorized panel physician. You must meet this requirement to get your EB-5 visa application approved.

EB-5 Visa Categories

Immigrant investors can choose from the four categories of the EB-5 visa program depending on their need.

Creation of job outside a Targeted Employment Area – C5

Creation of job in a Targeted Employment Area – T5

Regional Center Pilot Program outside a Targeted Employment Area – R5

Regional Center Pilot Program in a Targeted Employment Area – I5

Creation of job outside a Targeted Employment Area – C5

If you choose to opt in for this category, you must invest a minimum qualifying amount of 1,050,000 USD in a commercial “for-profit” enterprise. As an immigrant investor investing through this category you have to directly create and maintain a full-time job for at least ten U.S. citizens, lawful permanent residents, and other foreign nationals that have work authorization in the U.S.

You can decide to start a new business, buy an existing struggling business, or invest in a business that was founded after November 29th, 1990, with your investment creating at least 10 U.S. jobs directly or indirectly.

Note: If you must invest into an enterprise that was established on or before 29 November 1990, your investment has to result in at least 40% expansion of the overall company worth or number of staff.

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Creation of job in a Targeted Employment Area – T5

A Targeted Employment Area is a rural or high unemployment area. If you choose to invest using this option, then you have to invest without borrowing, the minimum qualifying amount of 800,000 USD.

As an investor that chooses to invest through this category, you can either establish a new “for-profit” commercial enterprise, purchase an already existing enterprise or invest into a commercial enterprise that was created after 29 November 1990.

If the enterprise began operating on or before that date, then your investment must expand the overall company worth or increase the number of staff by 40%.

An Area of “High” Unemployment is an area that has experienced unemployment rate of 150% of the national average rate at the time that immigrant investors files their petitions to USCIS. To prove that an area has a high unemployment rate, you can either rely on public records or get a declaration letter from a qualified state government agency stating that the area is a high unemployment area.

A rural area as designated by the Office of Management and Budget is any area other than an area that is within a standard metropolitan statistical area or within the outer boundary of any city or town that has a population of 20,000 or more based on the most recent decennial census of the United States.

Regional Center Pilot Program outside a Targeted Employment Area – R5

The USCIS approves a regional center to pool and invest immigrant investors funds into qualified EB-5 projects. Kindly visit the USCIS website to see the list of approved regional centers across the United States. As an immigrant investor that wants to invest using this option, you must invest the minimum qualifying amount of 1,050,000 USD in a qualified EB-5 regional center project.

Investing through this option of EB-5 visa offers several advantages, including the fact that immigrant investors do not need to take an active role in managing the project. Also, an immigrant investor does not have to directly create employment for 10 U.S. citizens, lawful permanent resident, and foreigners in the U.S. with work authorization, since the project that will receive the capital will indirectly create jobs for citizens at the location of the project.

An investor consider investing using this option a passive investment because the immigrant investor plays little to no role in the project that receives the capital.

Also going through this route, an immigrant investor doesn’t have to live close to the location where the project is been carried out. An immigrant investor can live with his or her family anywhere in the United States, unlike the direct investment route where the immigrant investor will have to live close to the business in order to manage the day to day activities of the business.

Regional Center Pilot Program in a Target Employment Area – I5

An immigrant investor must invest, without borrowing, the minimum qualifying amount of 800,000 USD in a targeted area to invest through this route.

Majority of immigrant investors invest through this route as investor has no role to play in the project that the capital is invested in, and also the amount is cheaper as compared to the minimum qualifying amount for investments outside a targeted area.

EB-5 Visa Application Process for Immigrant Investors outside the U.S.

Below is a breakdown of the steps you must follow as an immigrant investor to successfully apply for an EB-5 visa. We recommend that you work hand in hand with an immigration attorney considering the big amount of capital involved.

Form I-526, Immigrant Petition by Standalone Investor

You must first file a petition with USCIS. Unlike H-1B visa program that requires a labor certification, you do not need a labor certificate for an EB-5 visa, and you do not need any one to file the petition for you. Make sure that USCIS approves the petition before proceeding with the visa application.

Form I-526E, Immigrant Petition by Regional Center Investor

You must complete this form if you decide to invest through the regional center program approved by USCIS. You can get the list of approved EB-5 regional centers from USCIS website.

Visa Application

USCIS approves the petition, and then sends it to the National Visa Center. The National Visa Center (NVC) will assign a case number to the petition once it receives it. If your priority date meets the most recent qualifying date, then NVC will instruct you to fill the Form I-261, Online Choice of Address and agent.

Note: You don’t need to fill the Form I-261 Online Choice of Address and agent if you already have an immigration lawyer. NVC will start pre-processing your case by providing you with instructions to pay the necessary fees.

After paying the required fees, NVC will instruct you to submit the required visa documents, including application form, civil documents, completed medical examination and vaccination form, etc.

Form DS-260, Immigrant Visa Electronic Application

Next step is to complete the Form DS-260. Ensure you fill in your accurate information and then print out the confirmation page.

Form DS-261, Online Choice of Address and agent

If you do not already have an attorney, then you have to fill this form. It instructs the U.S. Department of State – Bureau of Consular Affairs how to communicate with you during your visa application.

You can indicate an agent for all communication using this form.

EB-5 Visa Fee

After completing the DS-260 and DS-261 form, you have to proceed with the payment of the EB-5 visa fee. Ensure you print out the receipt after making payment.

Visa Interview

Once the NVC determines that your file is complete with all the needed documents, they will schedule an interview appointment. NVC will send the file that contains your petition and the other documents you submitted to the consulate where they will interview you.

If you have a lawyer or a third-party agent, NVC will mail them a letter containing your visa interview date and time, along with instructions on how you can get your medical examination and vaccination.

Prepare additional Documents

While you wait for your EB-5 visa appointment date, you have to prepare other relevant or supporting documents not already sent to the NVC. Arrange them in a file along with your international passport. Make sure you print the visa appointment letter and keep it safely.

Attend your Visa Interview

This is the final stage of the EB-5 visa application process. The visa officer will take digital fingerprint scan on the interview day. The visa officer will interview you and determine whether you are qualified for an EB-5 visa.

EB-5 Visa Application Process for Immigrant Investors within the U.S.

As an immigrant investor living in the U.S. with a non-immigrant visa, the application process differs from the one explained above because you will not be going through the consulate route since you are already in the U.S.

Form I-526, Immigrant Petition by Standalone Investor: As an immigrant investor living in the U.S., the first step is to file a petition with the USCIS. You do not require a labor certificate for this process as compared to the H-1B visa program.

Form I-485, Application to Register Permanent Residence or Adjust Status: If you already live in the U.S. and you entered legally on a non-immigrant visa at the time your petition was filed and approved by USCIS, you can proceed to apply for adjustment of status from a non-immigrant status to an Immigrant status.

Note: If you arrived the United States on a visa waiver, you won’t be qualified to apply for adjustment of status, meaning that you have to apply for an immigrant visa at the consulate office outside the U.S. and upon entry into the U.S., you will receive a permanent resident card also known as Green Card.

Fees for Immigrant Investors outside U.S. (Consular Processing)

Form I-526, Immigrant Petition by Standalone Investor: The fee for this form is 11,160 USD.

Form I-526E, Immigrant Petition by Regional Center Investor: The fee for this form is 11,160 USD.

DS-260, Immigrant Visa Electronic Application: The fee for this form is 325 USD.

DS-261, Online Choice of Address and agent: You can submit this form without paying a fee

EB-5 Visa Fee: The EB-5 visa fee is 3,675 USD.

Form I-864, Affidavit of Support: The fee for this form is 120 USD.

Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status: The fee for this form is 9,525 USD.

Fees for Immigrant Investors within the U.S. (Adjustment of Status)

Form I-526, Immigrant Petition by Standalone Investor: 11,160 USD.

Form I-526E, Immigrant Petition by Regional Center Investor: 11, 160 USD.

Form I-485, Application to Register Permanent Residence or Adjust Status: You can submit this form without paying a fee.

Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status: 9,525 USD.

Remove Conditions on Permanent Resident Status

An immigrant investor originally gets a two-year conditional permanent residency. The investor must create and maintain at least 10 jobs for U.S. citizens, lawful permanent residents, and other foreigners authorized to work in the United States.

After the two years have elapsed, the immigrant investor have to complete the Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status.

The immigrant investor has to file this petition within 90 days of the two years conditional permanent resident expiration. After USCIS approves the petition, they will give the investor a 10-year permanent resident status (Green Card). The immigrant investor can renew the status after 10 years.

EB-5 Visa Holder Dependents

The spouse and unmarried children of an EB-5 immigrant investor under the age of 21 years are also eligible for an EB-5 visa and conditional permanent resident status.

Note: The immigrant investor’s spouse and eligible children must also complete the same application process as the Alien Entrepreneur. They must fill the DS-260 form, get vaccinated, carry out a medical examination, and pay all the required fees.

The immigrant investor’s spouse and unmarried children under the age of 21 years will also get a two-year conditional permanent resident status.

An immigrant investor would have to separately file a petition for removal of conditions on permanent resident status for his or her spouse and each of his or her eligible children.

The children must be unmarried and under the age of 21 when the petition for removal of conditions on permanent resident status is filed with the USCIS.

U.S. Citizenship for Immigrant Investor and Dependents

The EB-5 visa program creates a pathway to U.S. citizenship. An immigrant investor and dependents (eligible children and spouse) can apply for U.S. citizenship after living in the U.S. for five years with the permanent resident status acquired by virtue of the investment made by the immigrant investor.

This simply means that the immigrant investor and dependents will have to live in the U.S. for seven years before they can be eligible to apply for citizenship (two years on conditional permanent resident status and five years on permanent resident status).