• What is EB-5

About The EB-5 Program

EB-5 is a United States immigration program that offers citizens of other countries the opportunity to seek permanent U.S. residency through job creation in the U.S.

The EB-5 Regional Center Program began in the early 1990’s to spur economic growth by giving immigrants a way to obtain permanent U.S. residency through job creation. Administered by the United States Citizenship and Immigration Services (USCIS), the EB-5 program directs foreign investment into projects that revitalize local economies; investors whose money creates at least 10 full-time jobs for U.S. workers become eligible for a U.S. green card. Regional Centers, designated by the U.S. government, promote job creation in a defined geographic area.

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IIUSA 2015 President Advisory Council          

Frequently Asked Questions

The information provided below is of general nature and may not apply to any particular set of factors or circumstances. It should not be construed as immigration or legal advice, nor should it be relied upon. Individuals should consult with their own independent counsel with respect to the information provided below.

What Is The EB-5 Visa Program?

This specialized immigration program was created by Congress in 1990 to stimulate the U.S. economy through job creation by immigrant investors. There are 10,000 EB-5 immigrant visas available annually, of which 3,000 EB-5 visas are set aside for foreign nationals who invest in Regional Centers designated by USCIS based on proposals for promoting economic growth.

What is an EB-5 Regional Center?

An EB-5 regional center is an organization, public or private, in the United States that is involved with promoting economic growth. Regional centers are designated by USCIS for participation in the EB-5 Immigrant Investor Program. To view the list of approved regional centers, including ours, visit www.uscis.gov/eb-5centers.

What Is The Minimum Amount Of Investment Required In The EB-5 Program?

For investments in areas other than “targeted employment areas,” the minimum amount of investment is $1.8 million (increased from $1 million). Investments in “targeted employment areas” can qualify with a minimum of $900,000 (increased from $500,000). Future adjustments to the minimum investment amounts will be tied to inflation (per the Consumer Price Index for All Urban Consumers, or CPI-U) and occur every 5 years.

What Is A "Targeted Employment Area"?

A targeted employment area (TEA) is a rural area or a geographical area that has experienced unemployment at a rate of at least 150% of the national average rate. Any city or town with a population of 20,000 or more outside of a metropolitan statistical area (MSA) may qualify as a TEA, provided it has experienced unemployment rate of at least 150% of the national average unemployment rate. Additionally, a census tract containing an EB-5 project, and any directly adjacent census tracts to the project’s tract, can qualify as a high unemployment area if their weighted unemployment average is at least 150% of the national unemployment rate. Department of Homeland Security (DHS) will directly review and determine the designation of high-unemployment targeted employment areas (TEA). Individual states are no longer authorized to make TEA designations.

Who May Apply For EB-5?

Any person who can demonstrate the ability to: 1) deploy the required amount into the American economy, 2) document that the capital was legally earned, and 3) satisfy general eligibility requirements (e.g., medical, criminal) is qualified to apply for the EB-5 program. There are no language, business, or education requirements for applicants.

Is an EB-5 applicant required to have previous business experience or a minimum level of education to participate in the EB-5 program?

No. However, an applicant must be an “accredited investor” in order to invest in an EB-5 Regional Center offering due to U.S. federal securities laws

What does it mean to be an “accredited investor”?

An “accredited investor”, in the context of a natural person, includes anyone who (a) earned income that exceeded US$200,000 (or US$300,000 together with a spouse) in each of the prior two years, and reasonably expects the same for the current year, OR (b) has a net worth over US$1 million, either alone or together with a spouse (excluding the value of the person’s primary residence).

What Is Meant By The Requirement That The Investor’s Assets Be “LAWFULLY ACQUIRED”?

Under USCIS regulations, the investor must demonstrate that his or her assets were acquired in a lawful manner. This requires the investor to prove that his investment funds were obtained through lawful business, salary, investments, property sales, property loan, inheritance, gift, loan, or other lawful means. Please contact your immigration attorneys in determining the documentation required for the type of investment funds.

Can Money Gifted By A Parent Or Other Relative Be Used For An Eb-5 Investment?

Yes. It must be demonstrated that the gift is an actual transaction and is not an undocumented loan or that the gifted funds are expected to be given back after permanent resident status is granted. Similarly, the giftor must provide documentary evidence to prove the gifted funds were obtained through lawful means.

How Many Jobs Need To Be Created For An Investor To Get A "Green Card"?

Each EB-5 investor must create 10 direct or indirect permanent jobs for U.S. workers in order to obtain a “Green Card”.

Does an EB-5 investor need an immigration attorney to apply for an EB-5 visa?

Though not required, it is highly recommended that an EB-5 investor engage an immigration attorney with EB-5 experience to assist him/her in the process. It is also recommended that EB-5 investors inform themselves about other aspects relating to the EB-5 program and EB-5 investment (e.g. tax considerations) by consulting additional experts, such as tax and investment advisors.

What Are The Risks Involved With The Regional Center Investment Projects?

All investments are subject to risk and Regional Center projects are not exceptions. Under the law, the Regional Center cannot guarantee profit or the return of an investor’s principal investment. The project has limited operating history and is subject to financing risk. There are no assurances that a member’s petition will be granted or that a member will be able to obtain an immigrant visa or unconditional lawful permanent resident status. Laws, regulations and interpretations of the EB-5 Program are subject to change at any time.

What are a few steps that potential EB-5 investors can take to help protect themselves against fraudulent EB-5 investment scams?

As with any investment, it is important to thoroughly research any offering that purports to be affiliated with EB-5. Some research steps that potential EB-5 investors can take include, but are not limited to,:

  • Perform due diligence on the project developer and regional center;
  • Validate any documents to ensure that they are actually associated with the regional center, EB-5 project and/or project developer;
  • Look for “at-risk” language in offering materials. USCIS requires EB-5 investments to be “at-risk”. The sponsor of an EB-5 project cannot provide a guarantee that eliminates this risk. There can also be no guarantee on temporary, conditional or permanent residence status in the United States;
  • Review the legitimacy of job creation calculations;
  • Conduct a visit to the EB-5 project site.
What is an I-924 “exemplar” EB-5 project?

An EB-5 project with I-924 exemplar approval means that the EB-5 project has been pre-approved by USCIS. In other words, all of that project’s supporting documents (e.g. offering documents, business plan, and economic report) are given deference in the filing of associated I-526 petitions.

Can an EB-5 investor live in the United States while waiting for his or her I-526 petition to be approved?

An EB-5 investor who is waiting for his or her I-526 petition to be adjudicated can be present in the United States only if s/he has a valid status. His/her presence in the United States will be governed by his/her current immigration status and not the presumed permanent residency that s/he may receive upon the I-526 approval. Filing an I-526 petition does not provide any immigration-related benefits or status until the petition is approved, the investor’s priority date is current, and he or she has received approval for permanent residence either through a U.S. Consulate or Embassy abroad or USCIS in the United States.

After the I-526 petition is approved, should an EB-5 investor file for “Adjustment of Status” or “Consular Processing”?

If you are already in the United States in valid nonimmigrant status, you can apply for permanent resident status without having to return to your home country to complete processing. This process is called “Adjustment of Status.” If you are outside of the United States, you may apply at a U.S. Department of State consulate abroad for an immigrant visa in order to come to the United States and be admitted as a permanent resident. This pathway is referred to as “Consular Processing.”

After the I-526 petition is approved, can a principal applicant and his or her derivatives have their consulate interview in a country other than the principal applicant’s country of birth?

Consular interviews can be done in a country other than birth country or country of citizenship of the primary applicant. However, generally speaking, the U.S. consulate in a third country would require the applicants to have a residence permit in that country in order to process there. Family members, including the primary applicant, who are already in the United States can apply for permanent resident status without having to leave the United States. An example of this would be a child who is on F1 status and who is already in the United States when the primary applicant receives I-526 petition approval, provided that the primary applicant is applying to adjust status in the U.S. with the dependents, or that the primary applicant has already activated his/her conditional permanent resident status by entering the U.S. with an immigrant visa.

What is the difference between “conditional” and “permanent” residency status?

Conditional permanent residence is valid for a 2-year period and is the type of permanent residency that an EB-5 investor will first receive following an approval of their adjustment of status application or after consular processing. The application to remove conditions on permanent residency, Form I-829, is filed during the 90-day period immediately before the second anniversary of the EB-5 investor’s admission to the United States as a conditional permanent resident. If USCIS approves the I-829 petition, the conditions will be removed from the lawful permanent resident status of the EB-5 investor and any included derivatives, thereby granting them permanent residency status.

Is The Investor Free To Travel After Obtaining Conditional Resident Status?

The green card holder is free to travel in and out of the United States subject to the rules generally applicable to permanent residents. Specifically, he or she must maintain a residence in the United States and should not be outside the United States for a continuous period of 6 months or more, unless he or she has obtained a reentry permit.

Who is eligible to apply for a permanent residence under the EB-5 program?

The primary applicant who makes the investment as well as their spouse and any unmarried children under the age of 21. Children of primary applicants born in China, Vietnam and India may be subject to the risk of aging out. A child’s eligibility for an immigrant visa as a dependent of the primary applicant is determined by Child Status Protection Act (CSPA). The eligibility is determined by deducting the number of days the investor’s I-526 petition was pending from the child’s age at the time the visa number becomes available. If the child’s age is reduced below 21 by virtue of the calculation, the child will be determined to be protected by CSPA and is thus eligible to apply permanent residence with the primary applicant.

What Must Be Proven In Order To Obtain Removal Of Conditions On Permanent Residence?

The applicant must prove that the investment has been sustained throughout the period of his or her status as a conditional permanent resident,– and that the requisite 10 jobs have been created as a result of the investment.

With An EB-5 Investment Who Receives The Permanent Residency (“green card”)?

The investor, spouse and any unmarried children under the age of 21 (including adopted children) are eligible to apply for a green card through the EB-5 Visa Program.