Ask An Immigration Attorney: What is an EB-5 Visa?

Law

After working hard and creating an extensive investment portfolio in your home country, you might wonder: “Why not try an investment in the US – the globally acclaimed land of opportunities and freedom?” The fact is that the US always welcomes investors willing to inject money into its economy. Even so, you still must comply with the immigration laws regulating foreign investments. One can only invest in the US through the employment-based fifth preference, otherwise known as the EB-5 visa.

An EB-5 immigration visa allows foreign investors to obtain a Green Card (also known as a “Permanent Resident Card”) once they set foot in the US. But for an uninitiated investor willing to start a business in the US, it’s critical to understand the nitty-gritty of EB-5 immigration visa, including the annual limit of EB-5 visas, eligibility requirements, the minimum investment for an EB-5 investor program, the application timeline, costs, and how to apply.

What is an EB-5 Visa?

An EB-5 immigration visa gives legal permanent resident status to investors who meet specific immigration criteria. It allows applicants to obtain a Green Card immediately after they enter the United States. The visa enables the applicant’s spouse and unmarried children below 21 years to also obtain Green Cards.

The United States Citizenship and Immigration Services (USCIS) first introduced the EB-5 investor program in 1990. The objective was to drive the US economy by growing employment opportunities and attracting foreign currency.

The Annual Limit of EB-5 Visas

The number of green cards for investors is limited to 10,000 per year, and this limit also affects investors from any one country. Suppose over 10,000 people apply in one year, and a significant number of applicants are from your country, the USCIS may place you on a waiting list, based on the priority date – the date on which you filed the first phase of your application.

Until recently, EB-5 visa applicants never had to worry about being placed on a waiting list, because hardly had the 10,000 limit been met. However, demand for investor green cards has been rising, especially in China, Vietnam, and India, placing most investors on a waiting list. As of 2022, there was no waiting list for EB-5 visas, but there are no visas available for investors applying with a regional center.

Eligibility Requirements for an EB-5 Visa

Typically, you can qualify for an EB-5 immigration visa in two ways:

  • Invest in a regional center with the intention of creating at least 10 job vacancies to be occupied by US citizens
  • Invest in a US business that satisfies the minimum requirements determined by 8 CFR §204.6.

Job Creation

Most people invest in a “regional center” – an organization established to create employment opportunities. It’s an attractive proposition because you need not create your own business and the minimum dollar requirement is usually low.

Regional centers are designated by the USCIS and are authorized to take care of the USCIS’s regulations on the initial, conditional EB-5 visa/green card. Therefore, investors must be careful when choosing a regional center to ensure that it can deliver on its mandate to adhere to USCIS requirements when issuing the unconditional green card.

The only caveat is that the EB-5 investor program is not a permanent part of the US immigration law. Congress always reviews and amends the legislation to extend it. The previous program – which was scheduled to end on June 30, 2021 – left a long gap with unavailable visas since Congress didn’t get around reauthorizing it. However, it was reinstated in March 2022 and is expected to sunset on September 30, 2027.

Capital Investment

You can also obtain an EB-5 visa through capital investment in a company that was established after November 29, 1990. If the company came into existence before that date, it’s considered a new company, and an individual must invest a high-tier minimum to purchase or radically restructure it. Moreover, the investment must result in a 40% expansion of overall worth or workforce.

How to Apply for an EB-5 Visa

Your application for an EB-5 visa will typically have three stages:

1. The Initial Petition

To obtain an EB-5 visa, an individual must file Form I-526 with supporting documents showing:

  • That the applicant has invested in a for-profit organization that meets the above-mentioned criteria
  • That the region is indeed a Targeted Employment Area (if applicable)
  • The applicant will take an active role in the business as a manager
  • The venture will employ at least 10 new US employees
  • That the two (2) years following the petition, the workforce will not dip below the pre-investment level

2. File a Green Card Application

Once the USCIS approves your Form I-526, you can proceed with the green card application process. The procedure will be different based on where you are.

If you live abroad, you’ll need to undergo the consular process, which requires you to file Form DS-260 (officially recognized as the “Application for Immigration Visa and Alien Registration”) and a medical examination. You’ll then attend an interview at the US embassy or consulate, but you must have the supporting documentation.

If you live in the US, you’ll need to go through the Adjustment of Status process, which involves filing Form I-485 and attending an interview.

If the application goes successfully, the applicant and their immediate relatives will receive a conditional Permanent Resident Card (Green Card), which will remain valid for two (2) years.

3. Removing Green Card Limitations

After the 2-year window elapses, you can apply to remove the conditions from your green card. That requires you to file Form I-829 (Petition by Investors to Remove Conditions on Permanent Resident Status) within 90 days of the expiration.

What’s the Cost of an EB-5 Visa Application?

The cost of applying for an EB-5 visa ranges between $4,020 and $4,900, again depending on where you’re applying from.

The initial Form I-526 petition costs $3,675. If you apply from outside the US (through a consular process), you need an additional fee of $345, bringing the total to $4,020. That excludes medical-exam costs, which vary from one country to the other.

If you live within the US, you’ll have to pay $1,140 to file Form I-485, plus $85 for biometrics service. In that case, you’ll incur a total of $4,900.

Why Hire An Immigration Lawyer When Applying for EB-Visa?

As you might have noticed, the application process for an EB-5 investor green card can be pretty challenging. But if you can afford the application fee, you can meet the legal fees of hiring an immigration attorney. It’s worth paying for legal counsel before taking the first step toward filing your visa application.

If you decide to go at it alone and your filing is declined, you could compromise your chances of success in any subsequent application. Additionally, because you have to first invest before filing, any denial means you waste a lot of cash.

EB-5 Frequently Asked Questions (FAQs)

Can an EB-5 capital investment be a loan?

Yes, you can obtain your EB-5 investment through a loan from a financial institution with your assets as collateral. However, it’s not always the best approach because the USCIS will need to investigate the source of your investment or funds used to purchase the assets used as collateral for the loan.

Can I work in the US with an EB-5 visa?

An investor can work for any US employee under the EB-5 immigration program after obtaining the conditional Green Card. As an investor, you’re not legally mandated to work for the regional center through which you made an investment. If you choose to work for the company you invested in, it’s worth noting that your position may not fulfill the job creation requirements.

Will the government increase my EB-5 capital investment?

The EB-5 investor program underwent major legislative changes in November 2019 that increased the investment capital. Currently, the lowest investment capital in a Targeted Employment Area is $900,000 and $1.8 million for investments in another area.

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