With its world-renowned universities attracting over a million international students annually, the United States is a prime destination for holders of the F-1 student visa. Yet, this visa comes with several limitations, including constrained work options. The EB-5 program, however, provides a solution to these limitations, offering numerous advantages to foreign students.

Launched in 1990, the EB-5 Immigrant Investor Program aims to boost the U.S. economy and generate employment through investments. It has become an appealing option for foreign nationals, especially Indian students looking to advance their education and career prospects in the U.S.

By investing in a qualified EB-5 project, Indian students have the opportunity to secure permanent residency (Green Card) in the U.S. and ultimately pursue citizenship.

Through this article, Indian students can gain insight into the EB-5 investment route to permanent residency in the U.S., and get a better understanding of the benefits and challenges associated with the EB-5 visa.

How Can Investors Qualify for an EB-5 Visa?

To secure a permanent Green Card through the EB-5 visa, foreign nationals need to fulfill the requirements listed below:

• The investor should possess a minimum net worth of $1,000,000 or have an annual income of more than $200,000 over the past two years, or a combined income with their spouse of $300,000 in the same timeframe.
• The investor must invest the minimum amount of $1,050,000 into an EB-5 project, or invest $800,000 in a project located within a Targeted Employment Area (TEA).
• The EB-5 capital must be invested into a qualifying New Commercial Enterprise (NCE).
• The EB-5 investment project must lead to the creation of at least 10 full-time jobs for U.S. workers for each investor and maintain these jobs for two years.
• The source of the investment funds must be verifiable, legally obtained, and fully traceable.

Advantages of the EB-5 Visa for Students from India

The EB-5 program offers numerous advantages to Indian students, particularly in the areas of education and employment. Securing a U.S. Green Card via the EB-5 program enables international students to benefit from higher chances of admission, reduced tuition fees, access to a wider range of job opportunities, and unrestricted entry into the U.S. job market following their graduation.

Higher Education in the U.S.

Universities in the U.S. are frequently found at the top of global rankings, attracting a vast pool of both American and international students and leading to a competitive selection process.

U.S. universities also tend to admit fewer international students compared to domestic ones. However, as Green Card holders are classified as residents, they apply to colleges in the same category as U.S. citizens, as opposed to foreign applicants. This classification increases the chances of EB-5 investors when it comes to being accepted into higher education institutions in the United States.

The advantages for international students holding an EB5 visa extend beyond their chances of admission. Being considered U.S. residents, these students qualify for the reduced in-state tuition rates available in their state of residence, potentially leading to substantial savings — in some cases, up to $22,000 annually.

Job Opportunities and Residency

In addition to competitive admissions and high tuition fees, international students holding an F-1 visa may encounter work restrictions. Although they can work off-campus under specific conditions, many are confined to on-campus employment, which restricts their career advancement and ability to gain relevant work experience.

EB 5 visa holders face none of these limitations. They enjoy the same liberties as U.S. students, including the ability to engage in full-time or part-time work off-campus, secure internships, and pursue postgraduate opportunities.

This freedom to work without restrictions not only provides additional income but also enhances their resumes, giving EB-5 investor students a competitive edge in the U.S. job market upon graduation.

For international students planning to stay in the U.S. after graduation, the typical route involves applying for an H-1B visa, a lottery-based system historically posing challenges for Indian nationals as it requires sponsorship from a U.S. employer.

The EB-5 visa allows graduates to stay, live, and work in the U.S. without the complications of securing another visa. Unlike other pathways, the EB-5 program doesn’t require employer sponsorship, providing graduates the freedom to compete in the job market on equal footing with U.S. citizens.

An immigrant visa, EB-5 offers a much more permanent immigration plan than any student or employment visa, as those require frequent renewals. Through the EB-5 program, Indian students can obtain a permanent Green Card and apply for U.S. citizenship after five years of residency.

Indian students who are already in the U.S. can also count their two-year EB-5 conditional residency period towards their U.S. citizenship process.

Potential Pitfalls for Indian Students

The EB-5 program offers several benefits to investors and students, but understanding the risks they might face is also important for a successful immigration journey.

The risks involved in the EB-5 investment process fall into two main categories: financial and immigration risks. Financial risk involves potential loss of investment capital, while immigration risk is about the investor’s chances of obtaining a permanent U.S. Green Card.

Financial Risks

Qualified investors must be very careful while selecting an EB-5 project, with a minimum investment of either $800,000 or $1,050,000 depending on the project’s location, alongside other costs like filing fees and administrative costs. Furthermore, the program mandates that investments must be “at risk” without any guarantee of return, implying a potential for either partial or total capital loss.

Immigration Risks

There is an annual cap on the number of available EB-5 visas, divided among different countries. When this limit is exceeded, this triggers visa retrogression, delaying the process for applicants from countries with high demand, such as India. This could result in extended wait times for many Indian investors, so they should follow the monthly visa bulletins from the Department of State to stay informed about their country’s visa status.

However, Indian investors can bypass long wait times and enjoy priority processing through the reserved EB-5 categories that are in current status across all countries.

Investing in a rural EB-5 project is one strategy for Indian investors to qualify for such a reserved visa, streamlining their path to obtaining an EB-5 visa.

Starting the EB-5 Process

The EB-5 program is one of the quickest routes for Indian individuals to secure U.S. Green Cards for themselves and their families. Thanks to the priority processing opportunities, Indian students can live and work in the United States without getting affected by backlogs or having to depend on riskier, non-immigrant visa alternatives like H-1B.

To start the EB-5 process, Indian nationals are advised to seek guidance from industry experts, such as EB-5 immigration attorneys, during the investment process and beyond. These professionals can provide answers, offer counsel, and help navigate any potential visa issues.

Before taking the first step to start your EB-5 journey, please schedule a call with our team to discuss the details of your specific case and learn more about how you can obtain U.S. permanent residency through an EB-5 investment.

In order to acquire U.S. citizenship, a person must either be born to a U.S. citizen, born on U.S. soil to non-citizen parents, or go through the naturalization process after securing permanent residency.

There are several pathways to obtaining an immigrant visa, which lead to permanent residency (commonly called Green Card) in the U.S. These include marriage-based pathways, the diversity visa lottery, and some employment-based options, like investment visas.

Investment visas require a substantial financial contribution to a new enterprise in the U.S. that creates jobs, without the need for a sponsor or specific skills. After fulfilling the requirements of the investment program, the investor is granted an immigrant visa, which means they can be eligible for U.S. citizenship after a certain amount of time.

In this guide, we will explore investment-based pathways to U.S. residency, like the EB-5 visa and the E-2 visa, as well as the subsequent steps to apply for citizenship.

Benefits of Obtaining a U.S. Investment Visa

By obtaining lawful permanent resident (LPR) status via an investment visa, a foreign national is able to:

• Speed up the visa acquisition process compared to most other routes.
• Reside, study, work, and retire across the United States.
• Enroll in the U.S. education system.
• Benefit from top-tier medical services.
• Earn a return on their investment.
• Secure visas for their spouse and unmarried children under the age of 21.
• Pursue naturalization after five years to achieve citizenship status.

Overview of the EB-5 Immigrant Investor Program

Foreign investors who satisfy the criteria of the EB-5 Immigrant Investor Program can get a Green Card and subsequently apply for U.S. citizenship. This program was created in 1990 to boost the U.S. economy through job creation.

Processed by the United States Citizenship and Immigration Services (USCIS), the EB-5 Program is the quickest pathway to obtaining an immigrant investment visa.

Eligibility Criteria for an EB-5 Investor Visa

To be eligible for an EB-5 visa, foreign nationals need to fulfill the following criteria:

• A minimum investment of $800,000 in a Targeted Employment Area (TEA) or $1,050,000 everywhere else.
• A clean criminal background.
• Investment capital must be legally obtained and at risk, with no assurance of return.
• The investment must be placed in either a New Commercial Enterprise (NCE) or an existing business undergoing major restructuring.
• The investment should lead to the creation of at least 10 full-time positions for U.S. workers, sustained for a minimum of two years after the investment.

The Two EB-5 Investment Types

The EB-5 Immigrant Investor Program offers two distinct investment pathways: direct and Regional Center investments, each with its unique set of requirements.

Direct Investments

Direct investments take place without the involvement of third parties.

• The investor is required to engage in the business’s operations personally, either in a managerial role or through direct involvement.
• The business itself must directly create the required 10 full-time positions.

Regional Center Investments

These investments are made through a USCIS-designated EB-5 regional center (RC).

• EB-5 Regional Center investors generally join a limited partnership with other foreign investors, and have minimal involvement in the business’s operations.
• The 10-job requirement can be met through direct, indirect, and induced jobs (with the latter two resulting from the economic influence of the project).

Both direct and Regional Center NCEs can be situated in a Targeted Employment Area for a reduced minimum investment, while investments in additional categories (such as rural TEAs, infrastructure projects, etc.) can lead to priority visa processing opportunities and a faster pathway to U.S. citizenship.

EB-5 Visa Application Process Explained

An EB-5 application undergoes three separate phases before receiving full approval. To understand the details of this process, seeking counsel from an experienced immigration attorney is highly recommended.

Step One: Committing to an EB-5 Investment

Choosing a New Commercial Enterprise

Prior to investing, an EB5 investor needs to select a New Commercial Enterprise that aligns with their preferences. Factors to consider include:

• The amount of financial capital available to them.
• Their interest in starting and managing their own business.
• The choice between a Regional Center and a direct investment.
• The project’s reliance on EB-5 funding.

Investing in the EB-5 Project

Upon selecting a New Commercial Enterprise, either in the form of a new business or an EB-5 project, the investor needs to sign a partnership agreement with the business, usually involving the transfer of the necessary funds into an escrow account.

Submitting Form I-526/I-526E

Every EB-5 investor needs to file either Form I-526, Immigrant Petition by Standalone Investor or Form I-526E, Immigrant Petition by Regional Center Investor, to USCIS. At this stage, the application must include evidence that the investor qualifies for the application, the investment funds are held in escrow, and the EB-5 project is expected to generate the required jobs.

Some of the required documents for Form I-526/I-526E includes:

• Bank statements and tax filings.
• EB-5 NCE partnership agreements.
• Loan agreements.
• Business plans and economic analyses.
• Certificates of birth, marriage, divorce, etc.
• Personal details.

Currently, there is a filing fee of $3,675 for the application, however, USCIS is raising the fee to $11,160 on April 1, 2024.

The approval timeframe for I-526/I-526E can vary significantly depending on each EB-5 case. For current estimates regarding the EB-5 processing timeline, investors can check USCIS case processing times.

Step Two: Achieving Conditional Permanent Residency

Following the approval of Form I-526, an EB5 investor, along with their spouse and children under 21, can apply for a conditional EB-5 Green Card.

If they are in the U.S. at the time of application, they need to submit Form I-485, Application to Register Permanent Residence or Adjust Status, to USCIS. The current filing fee for Form I-485 is $1,170, although this will also increase with the April 1 fee hike.

Under the EB-5 Reform and Integrity Act of 2022 (RIA), EB-5 investors that are already in the U.S. can file their Form I-485 while filing their Form I-526, known as concurrent filing.

If the investor is outside the U.S. during the application process, they must initially complete Form DS-260, Immigrant Visa Electronic Application, at their local U.S. consulate or embassy to secure their immigrant visa.

Step Three: Removing Conditions on Permanent Residency

Before the end of their conditional residency, the foreign national must file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. It is important to do this within 90 days before the two-year period is up.

Along with Form I-829, investors must file:

• Proof that the NCE created and maintained 10 full-time jobs for two years, and the initial investment remained at risk.
• Financial and personal information.
• A copy of the conditional EB 5 visa.

As of March 2024, the filing fee for Form I-829 is $3,750, in addition to a biometrics fee of $85. The filing fee will increase to $9,525 on April 1, 2024.

When an EB 5 investor’s Form I-829 is approved, the conditions on their permanent residency are removed. The investor and their family then become permanent residents in the U.S., with unconditional Green Cards.

Gaining U.S. Citizenship After the EB-5 Investment

After maintaining lawful permanent resident (LPR) status for five years, foreign individuals are eligible to seek U.S. citizenship through naturalization. EB-5 investors can apply after only three years, as their two years of conditional lawful permanent resident (CLPR) status count towards this requirement.

To apply for naturalization, lawful permanent residents must file Form N-400, Application for Naturalization, and meet the following criteria:

• Not having spent more than half of the five-year period outside the U.S., or any stay longer than 180 days at a time.
• Holding a clean criminal record.
• Paying a filing fee of $640 plus the $85 biometric fee, if applicable.
• Undergoing an interview with USCIS officials.
• Successfully completing an English language test, if applicable.
• Knowing and understanding U.S. civics
• Taking the Oath of Allegiance to the United States.

Children under 18 acquire citizenship when their immigrant parents become citizens. Those over 18 and spouses must individually submit naturalization applications and fulfill the same requirements.

The processing time for Form N-400 is currently estimated to be around seven months, depending on the specific Service Center. Upon approval, the individual becomes a U.S. citizen, enjoying full benefits like owning a U.S. passport, voting, and immunity from deportation.

Introduction to the E-2 Treaty Investor Visa

Investors interested in starting their own business or working in the U.S. have an alternative through the nonimmigrant E-2 Treaty Investor Visa. This visa also benefits the investor’s immediate family, certain employees, and their dependents. However, it does not offer a direct route to permanent residency or citizenship, and it is only available to investors of certain nationalities.

Being a nonimmigrant visa, the E-2 is temporary, so the holder must be planning to leave the U.S. when the visa expires. That said, as long as the E2 conditions are met, the visa can be renewed every two years.

E-2 Visa Investment Requirements

The main criterion of the E-2 visa is citizenship of countries that have a specific treaty agreement with the United States, such as Grenada, Montenegro, and Turkey.

Individuals who are not from treaty countries need to obtain citizenship from one of them, and reside there for at least three years before they can qualify for an E-2 visa.

Although there’s no strict minimum investment for starting an E-2 business, investing at least $100,000 is advisable to secure E-2 petition approval. Criteria for E-2 eligibility include:

• The enterprise must be a for-profit, non-marginal business.
• The investment capital must be at risk.
• The business should create at least five full-time jobs for U.S. workers within two years.
• The investor must have a direct role in the company’s management.
• A minimum of 50% of the company must be owned by nationals of the investor’s home country.

Procedure for E-2 Visa Application

For E-2 visa applicants outside the U.S., Form DS-160, Online Nonimmigrant Visa Application must be submitted to their nearest U.S. embassy or consulate. The application fee for Form DS-160 is $205.

E-2 investors within the U.S. are required to submit Form DS-156, Nonimmigrant Visa Application, to the U.S. Department of State. Nonimmigrant visa application processing fee under the E-2 category is currently $315.

There can be an additional biometrics fee of $85 for both forms. Required supporting documents include:

• Photograph(s).
• Passport and personal details.
• Proof of the business’s eligibility, such as a business plan and economic analysis.
• Proof of source of funds.

Once their applications are complete, E-2 investors need to attend an interview at their local U.S. consulate or embassy.

Following the approval of their applications, investors must file Form I-129, Petition for a Nonimmigrant Worker, which currently comes with a processing fee of $460. A new fee of $510 will be effective April 1, 2024. The approval process can take up to six months, after which the investor and their family receive their nonimmigrant E-2 visas.

Path to U.S. Citizenship via E-2 Investment

The nonimmigrant E-2 visa does not lead to naturalization as a U.S. citizen; only the EB-5 visa does that as an immigrant investor visa. However, an E-2 visa holder can petition for their E-2 case to be converted to an EB-5 case.

Transitioning from an E-2 to an EB-5 Visa

Upon transitioning their project to EB-5, the E-2 investor needs to fulfill a broader set of criteria, including raising the minimum investment amount to at least $800,000 and generating 10 full-time jobs, an increase from the previous requirement of five.

Comparing the EB-5 and E-2 Visas

Below is a comparison of the EB-5 Immigrant Investor visa and the E-2 Treaty Investor visa:

Feature	EB-5 Immigrant Investor	E-2 Treaty Investor
Minimum Investments	$800,000 – $1,050,000	~ $100,000
Eligible Persons by Relation	Dependent Family	Dependent Family, Certain Employees and Their Dependent Family
Residency Status	Permanent	Temporary
Path to Citizenship	Yes	No

Obtaining U.S. Citizenship Through Investment

Both the EB-5 and E-2 programs can be excellent routes for individuals seeking U.S. residency through investment, albeit with significant differences. Depending on factors like nationality, available funds, and interest in business management, prospective investors can weigh their options to decide which one better suits their family’s needs and preferences.

However, for investors with long-term plans to live, work and retire in the U.S., only the EB-5 visa provides a direct pathway to U.S. citizenship. If you are a foreign investor looking to move to the United States, book a call with our team to learn more about your permanent residency and citizenship options.

For more than a decade, India has been a leading force in the EB-5 market, along with other high-demand nations such as China and Vietnam.

Yet, with high demand comes extended waiting periods, and this has long applied to India, as well. Backlogs, compounded by the pandemic era and the temporary lapse of the EB-5 Regional Center program, have further affected the EB-5 visa processing times for Indian applicants.

Fortunately, the EB-5 Reform and Integrity Act of 2022 (RIA) not only brought the EB-5 Regional Center Program back in full force but also opened up pathways that significantly reduce wait times for applicants from India. For details of how the RIA impacts their specific EB-5 processes, foreign nationals are advised to seek guidance from an experienced immigration attorney.

In this article, we will outline the EB-5 processing times for Indian applicants, and provide interested investors with a detailed guide on the steps involved.

Timeline for Indian Applicants to Secure an EB-5 Visa

Navigating the EB-5 investment journey can be a long-term commitment, especially for citizens of backlogged countries who filed their applications prior to the RIA. For new applicants, the United States Citizenship and Immigration Services (USCIS) offers average processing timelines on its website, but these should not be seen as precise guarantees of how long applicants will wait.

Given the ever-changing variables that affect processing times, coupled with the specifics of each immigration case, it’s difficult to pinpoint exact durations. However, the approximate timelines provided below can serve as a useful guide for Indian investors to estimate their wait times.

Filing the Application

Form I-526/I-526E marks the beginning of the EB-5 visa application, aiming to show that the investor complies with USCIS standards. Direct investors submit Form I-526, Immigrant Petition by Standalone Investor. Meanwhile, regional center investors file Form I-526E, Immigrant Petition by Regional Center Investor.

There are certain processes before the approval of I-526/I-5326E petitions. If there is incomplete or inconsistent information in the immigrant visa petition, USCIS will seek further clarification through a request for evidence (RFE).

An RFE, while not a denial, delays the investor’s EB-5 process. To minimize the risk of RFEs, it’s crucial for investors to provide comprehensive documentation with their I-526 or I-526E petition, carefully arranging the data as required.

Given the unique nature of each EB-5 investment, the documentation needed for every I-526 and I-526E petition varies. The preparation of this EB-5 visa application can take anywhere from weeks to months, depending on the specific details of the investor’s situation.

Priority Dates

In some cases, the demand for EB-5 visas from certain countries exceeds the available visa numbers. Under these circumstances, applicants’ progression in the EB-5 process depends on their priority date, which is the date their I-526 petition was received by USCIS.

Investors whose priority date is later than the cut-off date are required to wait until their priority date becomes “current.” Once a cut-off date becomes current, it means that EB-5 applicants from that country are eligible to advance in the immigration visa process, irrespective of their priority date.

There are two categories of cut-off dates: “dates for filing,” which determine when investors can submit their visa applications to the National Visa Center (NVC), and “final action dates,” which dictate when visas can be issued to them.

Investment Options and TEAs

The choice of investment pathway by an EB-5 applicant can affect the timeline of their application process. EB-5 investments are primarily divided into direct investments and those made through regional centers.

These investments are further divided into Targeted Employment Area (TEA) projects or non-TEA projects. TEAs are defined as areas in need of economic development and job creation. There are two types of TEAs: rural TEAs and high unemployment areas.

Rural TEAs are characterized by a population of fewer than 20,000 people; are not next to cities with populations exceeding 20,000; and lie outside metropolitan statistical areas (MSAs).

For an area to be considered a high-unemployment TEA, it must show an unemployment rate that is at least 150% above the national average. Some infrastructure projects are also eligible to offer similar benefits to TEAs, irrespective of the location.

Aside from a reduced investment threshold of $800,000 as opposed to $1,050,000 in non-TEA projects, investors in rural TEA projects benefit from expedited processing for their I-526 petitions from USCIS, a factor that is particularly appealing to investors from backlogged countries like India.

This means that choosing a rural TEA project can translate into wait times of under one year for Indian EB-5 investors.

History of EB-5 Visa Processing Times for Indian Applicants

The EB-5 processing times for Indian investors are now faster than they have ever been, in the case of rural TEA investors.

Though Indian applicants have faced backlogs and delays across different periods of time, 2020 was an especially challenging year due to the pandemic-related closure of USCIS offices and the cancellation of all visa appointments, which delayed the EB-5 process for numerous investors. Furthermore, the suspension of routine visa services by U.S. consulates and embassies abroad meant that investors were unable to attend visa interviews.

The lapse of the EB-5 Regional Center Program in June 2021 also put many I-526 petitions on hold and stopped potential investors from submitting new applications.

In 2022, with the EB-5 Reform and Integrity Act, these obstacles were overcome, with added benefits for Indian EB-5 investors who apply under the EB-5 set-aside reserved categories, with currently no backlogs.

A Detailed Guide to Steps and Timelines for Indian EB-5 Applicants

As briefly mentioned above, the EB-5 process begins with the filing of Form I-526/I-526E, where the applicant must prove compliance with all USCIS regulations. Following the approval of their petitions, investors proceed with either Form DS-260 or Form I-485, depending on their location. Once EB-5 investors obtain their conditional green cards, they can benefit from residency privileges in the U.S., and after maintaining this status for two years, they are eligible to remove conditions on their green cards and become permanent residents. You can read more about the details of this process below.

Understanding the I-526/I-526E Petition Process

Once an EB-5 investor’s I-526/I-526E petition is approved, the applicant is granted conditional residency for two years in the U.S., setting the stage for eligibility for a permanent green card and eventual citizenship.

The processing times for I-526 and I-526E petitions vary, depending on application volume and visa availability. An increase in Form I-526 and I-526E filings also increases the number of individuals eligible for a visa, potentially causing backlogs and extended waiting periods.

Factors such as the case’s complexity and the specific service center processing the application also affect the timeline.

The current application fee for Form I-526 is $3,675, but this amount is prone to change, with a significant fee increase to take effect on April 1, 2024. Investors should consult the USCIS website for the latest fee information before submitting their application.

Navigating Forms DS-260 and I-485

Following the approval of the I-526 or I-526E petition, EB-5 visa applicants outside the United States must go through consular processing and submit Form DS-260, Immigrant Visa and Alien Registration Application.

This application is presented to the U.S. consulate or embassy in the investor’s country of residence and forwarded to the National Visa Center.

Upon approval, the applicant is granted conditional permanent resident status in the U.S. The duration for consular processing can depend on the specific consulate or embassy, but generally takes between 3 to 12 months.

For EB-5 investors residing within the U.S., the procedure differs slightly. Instead of DS-260, these investors submit Form I-485 for adjustment of status.

It’s possible to file Form I-485 at the same time as Form I-526, known as concurrent filing. Concurrent filing allows the applicant to legally reside and work in the U.S., as well as apply for a travel permit, even before obtaining the EB-5 visa.

The application process includes a filing fee of $1,140 for Form I-485 and a biometrics fee of $85, though the USCIS fee hike of April 1, 2024, brings these numbers up to a total of $1,440.

Unlike the DS-260, Form I-485 is processed by USCIS for adjustment of status and is not sent to the National Visa Center.

Filing the I-829 Petition

Form I-829 represents the final step for EB-5 visa applicants, filed after concluding their two-year period of conditional residency. This petition is a declaration to USCIS that the investor has fulfilled all prerequisites of the EB-5 program.

Approval of the I-829 petition lifts the conditions on the investor’s residency, granting the investor, their spouse, and any unmarried children under 21 the right to permanent residency in the United States.

Investors must file their I-829 petition within the final 90 days of their conditional residency.

It’s advised to start the preparation process well in advance to ensure that USCIS receives the petition within this critical 90-day window, as failure to do so may risk the investor’s opportunity for permanent residency.

As of February 2024, the wait time announced on the USCIS website for this form is approximately 66 months. While the I-829 petition is under review by USCIS, the investor’s conditional residency status is extended beyond their green card’s expiration date.

The application fee for Form I-829 currently stands at $3,750 with an additional biometrics fee of $85. With the April 1 fee increase, this number jumps to $9,525.

Insights for Indian EB-5 Investors

The U.S. Department of State (DOS) publishes a Visa Bulletin every month, which provides cut-off dates via a final action dates chart and a dates for filing chart.

According to the Visa Bulletin for March 2024, the final action date for Indian applicants under the unreserved categories is December 1, 2020.

However, the EB-5 reserved categories for rural, high-unemployment and government infrastructure categories remain “current” for all countries, including India and China, meaning that there are no backlogs in these categories.

Indian citizens interested in applying for the EB-5 program are encouraged to book a call with EB5AN to learn more about their options.

A U.S. investor visa provides international individuals with the opportunity to build a new life in the United States by investing in a local enterprise. Through an investment visa, foreign investors and their immediate family gain the privilege to reside, work, and pursue education in the U.S.

Although eligibility for investor visa programs varies by country, many international applicants are able to seek a U.S. investor visa. Popular among applicants, EB-5 and E-2 investor visas both offer paths into the U.S., but they have their differences.

What Kinds of Investment Visas Are Available in the United States?

This article outlines the basics of the EB-5 and E-2 visas, including eligibility criteria and the benefits they come with. Read more to discover the processes behind EB-5 and E-2 investor visas, compare the two options, and decide which one aligns best with the needs and expectations of you and your family.

Steps to Securing an EB-5 Investor Visa

Established by Congress in 1990, the EB-5 Immigrant Investor Program aims to bolster the U.S. economy by fostering job creation and capital investment. Foreign nationals who invest the required amount of capital in the United States are eligible for the EB-5 visa, paving the way towards U.S. citizenship.

More than three decades after its inception, the EB-5 program continues to be a sought-after route for investors looking to establish a life in the U.S.

The EB-5 visa provides foreign investors and their families permanent residency in the U.S., also known as a green card, if they invest in a new commercial enterprise, or NCE.

This includes green cards for the investor’s spouse and dependent children, as well. Investors interested in the EB-5 visa should evaluate their investment options before starting the application process.

Investment Options for the EB-5 Visa

EB-5 Immigrant Investor Program applicants can opt between two investment strategies: direct investment and the regional center pathway. It’s crucial for investors to fully grasp each option prior to making a choice.

While both investment routes ultimately aim for similar EB-5 visa qualifications, the complexity and accessibility of the immigration process can vary based on the chosen investment path.

The key distinctions between the direct investment and the regional center model lie in the structure of the EB-5 project, the level of investor engagement, and the approach to job creation.

Direct EB-5 Investments

In the direct investment option, investors either fully own or share ownership of the new commercial enterprise. This option is often favored by those looking to manage and directly operate their business, ensuring full control over their investment.

Direct investments demand active involvement from the investor in managing, decision-making, and day-to-day operations of the enterprise, typically focusing on a narrower range of project types like restaurants, hotels, and retail outlets.

EB-5 Regional Center Investments

On the other hand, regional centers are entities designated by USCIS that aggregate investments from multiple investors into various projects. Here, the invested capital is directed towards a commercial venture backed by the regional center, with the investor playing a minimal role in the daily management of the project.

This indirect approach significantly contributes to the popularity of the regional center route among the majority of EB-5 investors.

EB-5 Visa Requirements

Whether an investor chooses a direct investment or the regional center pathway, there are certain requirements the EB-5 project must fulfill, mainly regarding the new jobs it creates for U.S. citizens and the minimum investment amounts.

Job Creation

A key benefit of the EB-5 program is its emphasis on job creation. Every EB-5 investor is required to generate at least 10 full-time positions for U.S. workers, which are classified into three types: direct, indirect, and induced jobs.

Direct jobs refer to full-time positions that are officially part of the company’s workforce. On the other hand, indirect and induced jobs are those generated as a result of the economic benefits a project brings.

Direct investors are limited to counting only direct jobs towards their EB-5 requirement, whereas regional center investors have the advantage of including direct, indirect, and induced jobs in the count.

This distinction makes the job creation requirement significantly easier for regional center investors.

Targeted Employment Areas (TEAs)

Besides selecting from the two investment strategies, foreign individuals can opt to invest in areas designated for economic enhancement, referred to in the EB-5 program as Targeted Employment Areas (TEAs).

TEAs are categorized as either rural locations or areas with high unemployment rates, offering the advantage of a reduced investment threshold compared to non-TEA regions. Some public infrastructure projects also meet similar TEA criteria.

As of March 2022, the baseline investment required is $1,050,000 for projects outside TEAs, while investments within TEAs are set at a lower rate of $800,000.

Key Components of Form I-526 Submission

After initiating an EB-5 investment, a foreign national is required to compile essential documents and submit Form I-526/I-526E, marking the initial application phase for the EB-5 visa. Form I-526 is used by direct investors, while I-526E is used by investors who are investing through regional centers.

The United States Citizenship and Immigration Services (USCIS) scrutinizes the I-526 application, making it crucial for investors to accurately detail the necessary information in their application. Hiring an immigration attorney can facilitate this process and help secure a fast and smooth approval of the I-526 petition.

The application must present proof that fulfills several criteria: adherence to the EB-5 program’s investment requirements, lawful acquisition and investment of capital in a new commercial enterprise, sufficient job creation through the investment, and depending on the investment pathway, involvement of the investor in the project.

At-risk Investment

First and foremost, the I-526 petition needs to confirm that the investment meets or exceeds the EB-5 program’s minimum financial commitment. To comply with USCIS standards, this investment must be “at risk” in the NCE.

Supporting evidence might also be required, including the NCE’s bank records reflecting the investment receipt, documentation of assets purchased for the NCE, promissory notes, securities agreements, and escrowed funds.

For those investing the reduced amount of $800,000, proof of the NCE’s location in a TEA is also required.

Source of Funds

Demonstrating that the investment funds were legally sourced is crucial for the I-526 application. Detailed documentation is necessary to trace the investment’s legal origins for USCIS, covering the path of the funds from their origin to the NCE. This process is commonly called “EB-5 source of funds” and includes any funds earned by the investor or obtained indirectly, such as through gifts or inheritance.

Documentary evidence can vary based on how the funds were obtained, potentially including promissory notes, financial statements, stock sale evidence, dividend certificates, property sale records, mortgages, and banking records. For capital received from another individual, like gifts or inheritances, documentation confirming the funds’ lawful origin is also needed.

Investment in an NCE

The I-526 petition must establish that the capital was invested in an NCE, a post-1990 for-profit entity engaging in lawful commercial activities.

If the investment establishes a new NCE, required documents include articles of incorporation, partnership agreements, certificates of partnership, business banking details, a state business license, and an Employer Identification Number (EIN).

For investments expanding or acquiring an existing business, further documents may include merger certificates, acquisition certificates, financial reports, stock purchase agreements, and shareholder agreements.

Proof of Job Creation and Involvement

The EB-5 investment must generate at least 10 full-time jobs for U.S. workers to meet USCIS standards. Proof within the I-526 petition should demonstrate job creation or future plans for it, typically through a comprehensive business plan indicating the need for at least 10 employees.

For regional center investments, an economist’s report may be needed to detail indirect and induced job creation, given the complexity of calculating these employment types.

Investors must also validate their operational role in the NCE. Direct investors usually need to show significant involvement in the enterprise, with documentation reflecting their title and responsibilities, or proof of board membership, officer status, or partnership. On the other hand, regional center investors, often part of limited partnerships, can show less managerial involvement.

Personal Information

Beyond the above requirements, the I-526 petition should include personal data, such as the investor’s passport, medical examination results, any legal proceedings within the last 15 years, and civil documents like birth and marriage certificates.

Benefits of Holding an EB-5 Investor Visa

Upon fulfilling EB-5 requirements and securing approval for their I-526 petition, investors obtain a conditional green card valid for two years. This extends to the investor’s spouse as well.

Eligibility includes same-sex spouses, though not common-law partners. Children qualify if they are under 21 and not married, including biological, adopted, and step-children. The primary applicant must prove their relationship with the children.

The EB-5 visa enables investors to reside, study, work, and retire anywhere within the U.S., and permits the return of investment funds following the project’s completion. Additionally, it offers entry into the U.S. healthcare and educational systems.

The EB-5 conditional green card remains valid for two years upon receipt. After this period, investors may apply for a permanent green card using Form I-829.

The conditional residency duration is counted towards the five-year permanent residency requirement for naturalization. This enables investors to start their U.S. citizenship journey once they receive their conditional green card.

Introduction to the E-2 Investor Visa in the U.S.

For foreign individuals who fulfill certain criteria, the E-2 visa can be considered an alternative to the EB-5 visa, offering a non-immigrant pathway that allows investors to work within the U.S.

The required investment for an E-2 visa, while still “substantial,” is typically lower than the investment needed for the EB-5 program. The E-2 visa process also tends to be faster than that of the EB-5 visa.

E-2 visa recipients can gain the right to work for a U.S.-based company they establish, positioning themselves as both the sponsor and the employee. E-2 visa holders’ spouses are also eligible to receive work authorization in the U.S.

This visa is issued for two-year intervals and can be extended indefinitely, provided that E-2 non-immigrants consistently show intent to depart the U.S. once their visa expires or their status is terminated.

Criteria for Qualifying as an E-2 Investor

The main criterion for E-2 visa eligibility is the applicant’s nationality. While the EB-5 program is open to foreign nationals from any country—albeit with varying wait times—E-2 investor eligibility is restricted to citizens of countries that have an E-2 treaty with the U.S., such as Montenegro, Grenada, or Turkey.

Countries like China, India, and Vietnam, which do not have an E-2 treaty with the U.S., see a high demand for the EB-5 visa, leading to processing backlogs.

Investors from these countries may bypass these delays by acquiring citizenship in an E-2 treaty nation and then applying for an E-2 visa to invest in the U.S., offering a faster path into the U.S. However, investors need to keep in mind that the E-2 visa is not an immigrant visa.

The complete list of nations with an E-2 treaty with the U.S. is available on the website of the U.S. Department of State.

E-2 visa applicants, like EB-5 investors, are required to invest in a U.S. enterprise. However, the E-2 does not specify a minimum investment amount as the EB-5 does.

According to USCIS guidelines, the investment must be substantial enough to purchase or create an enterprise, indicate a genuine financial commitment to the venture’s success, and suggest that the enterprise will be successfully developed and managed.

The appropriate investment amount varies by the nature and industry of the enterprise, with an unofficial minimum suggested at $100,000. Investments below this threshold may face challenges in approval.

A larger investment amount makes it easier to demonstrate the investor’s commitment to the venture.

Comparing the EB-5 and E-2 Investment Visas

The following section outlines the main distinctions between the two visa categories:

Minimum Investment Amounts

• EB-5: $1,050,000 for non-TEA investors; $800,000 for TEA investors.
• E-2: No fixed minimum, but $100,000 is generally recommended as the minimum viable investment.

Additional Costs

• EB-5: The current filing fee for Form I-526 is $3,675, but USCIS is raising the fee to $11,160 on April 1, 2024. Additional filing costs apply for Form DS-260 or Form I-485. Form I-829 filing fee is currently $3,750, also to be affected by the April 2024 fee increase. Extra costs include biometrics, medical exams, document procurement, translations, and immigration attorney fees.
• E-2: Application fee is $460 for investors in the U.S., with an additional $370 for each dependent. There are extra costs for biometrics, services, and additional documentation.

Eligibility

• EB-5: Available to foreign nationals from any country.
• E-2: Restricted to citizens of countries with an E-2 visa treaty with the U.S.

Processing Time

• EB-5: USCIS processing for Form I-526 can take relatively longer, depending on origin country.
• E-2: Applicants can obtain the visa within a few months after filing.

One of the most significant differences between the two visas is the potential for permanent residency. The EB-5 visa can lead to a green card after two years of conditional residency, offering a path to permanent U.S. residency and eventually citizenship. In contrast, the E-2 visa, being a non-immigrant visa, does not directly lead to a green card. This is why many investors view the E-2 as a preliminary step towards achieving permanent residency through the EB-5 program later on.

Why Investment Visas Are a Prime Route to U.S. Residency

Investment visas in the U.S. offer excellent pathways for eligible individuals to attain residency in the United States, enabling them to work, live, and pursue education in the nation. Interested investors need to weigh their immigration goals to decide between the EB-5 and E-2 visas.

The EB-5 visa caters to those aiming for permanent residency, offering a route to establish a long-term life in the U.S. On the other hand, the E-2 visa appeals more to individuals seeking a quicker route to work in the U.S., making it an attractive option for those with short-term professional aspirations. It is essential to carefully evaluate these options to determine which one aligns best with your specific plans to immigrate to the United States.

Individuals interested in the EB-5 program are encouraged to take the next step by scheduling a consultation with EB5AN and seeking out an experienced immigration lawyer for further guidance.

The EB-5 program has many benefits for its stakeholders. Foreign nationals can use it as a pathway to U.S. permanent residency for themselves and their immediate family members, project developers in the U.S. can use it as a reliable source of capital, and the U.S. economy benefits from the billions of dollars that can be used to alleviate unemployment. However, the regulations of the EB5 investment program, which is overseen by United States Citizenship and Immigration Services (USCIS) can be overwhelming to those who are unfamiliar with the industry. One of the key aspects of the program is the requirement of each EB-5 project to create at least 10 jobs per investor which, at first glance, can seem like a daunting task.

In working towards complying with EB-5 investment regulations, business leaders should keep in mind that the industry offers two different types of investment models: direct investment projects and regional-center sponsored projects. Investors have the freedom to select the model that best suits them. If they choose the direct EB-5 investment offering, there are certain guidelines to consider.

1. Contrasts Between the Two EB-5 Investment Models

The EB-5 regional center program was created in 1992. In this model, foreign nationals make a minimum investment of $800,000—recently increased with the passing of the EB-5 Reform and Integrity Act of 2022—in a USCIS-approved regional center. Regional center projects are able to count indirect and induced jobs—those that are created as a result of the new commercial enterprise’s (NCE’s) economic impact—towards meeting the job creation requirement. The only caveat is that these jobs can only count for 90% of the requirement, meaning that at least one direct, W-2 position needs to be created to fully comply with USCIS regulations.

The greatest difference between the direct EB-5 investment model and the regional-center sponsored model is that direct EB-5 projects can only use direct, W-2 positions to fulfill the job creation criteria. This means that all of the jobs created by the project have to be full-time positions, so any indirect or induced employment—such as independent contractors and part-time employees—do not count towards complying with the regulation. In addition, they are smaller in scope than regional center projects and, where regional centers can have multiple investors, direct EB5 projects are limited to one.

2. Retaining Documentation on EB-5 Direct Jobs

In order for the jobs created by a direct EB5 investment project to count towards meeting USCIS regulations, direct investment projects must maintain thorough records of the employment process. No detail is too insignificant as these businesses must prove that the investment project created the minimum of 10 jobs, and that each of those jobs was available for two consecutive years. In addition, the jobs created by the direct EB5 investment project must be full-time positions, though they do not have to be filled by the same person for the entire two-year period. Examples of hiring documentation include, but are not limited to, salary statements, timesheets, Form W-4 and, most importantly, Form W-2.

Direct EB-5 investment project developers must also be careful to hire employees that meet the standards set forth by USCIS. The agency requires that EB-5 positions be filled by individuals who are legally authorized to work in the United States, such as permanent residents and U.S. citizens. This adds a layer of complexity to the hiring process, as employers are prohibited from requesting certain immigration information and Form I-9, Employment Eligibility Verification, doesn’t prove a person’s authorization for work. With this in mind, it may be best for direct EB-5 businesses to hire U.S. citizens and permanent residents.

3. Considerations for a Direct EB-5 Offering

When evaluating a possible direct EB-5 investment opportunity, foreign nationals should keep in mind the potential it has to comply with USCIS regulations. The EB-5 visa process has been known to be quite lengthy, and ensuring a project’s ability to meet USCIS standards will decrease the likelihood of running into any issues. In turn, that will increase the efficiency of the investor’s pathway to U.S. permanent residency and the project’s overall success.

One of the things to look for with regards to compliance is the potential for job creation, as this is a key aspect of the EB-5 visa program. Businesses that are able to create more than the minimum of 10 jobs will likely be more attractive to investors than others. In addition, investors should also consider the business developer’s track record. Those that have a history of high I-526 approval rates have a greater likelihood of being able to raise the appropriate amount of capital, which is another important aspect of a direct EB5 investment project. Demonstrating financial stability will be crucial in determining the potential success of the business in its market.

A solid business plan is the best way to demonstrate an EB-5 project’s financial stability. The plan should include market data, an analysis of the potential economic impact, and a description of the jobs it will create. One thing to look out for is how much the business is dependent upon the EB-5 investment capital. An overdependence on EB-5 investment capital is a sign that a business may not be financially stable enough to succeed and may put the approval of an I-526 petition at risk. Almost any for-profit entity has the potential to qualify for EB-5 funding, and many of these businesses are in the restaurant, retail, hospitality or wholesale industries.

The process for creating a direct EB-5 project that meets USCIS regulations is a lengthy and often complex one. However, many industry stakeholders have been able to overcome the challenges that come with the process and, with the help of expert consultants and immigration attorneys, now have the advantage of direct EB-5 funding at below-market rates.

Since June 2021, the direct EB-5 investment model has taken center stage in the EB-5 industry. Historically, the regional center EB5 investment model has been more commonly used, but it was deauthorized for several months and will only resume operations in mid-May 2022. The regional center model offers greater flexibility in meeting the job creation criteria set by United States Citizenship and Immigration Services (USCIS), making it the more popular option. While the direct investment model is more stringent, there are many benefits to this model, including the potential for faster access to the investment funds that are essential to EB-5 projects.

What is the Limit on the Number of Investors Who Can Participate in an EB-5 Direct Investment Project?

Direct EB-5 projects can only take on one EB-5 investors; all pooled projects must be sponsored by a regional center. In addition, it is important that the EB-5 investment funds make up only a small portion of the new commercial enterprise (NCE). Projects that are overly dependent on EB5 investment capital are considered less stable and pose risks both to the project itself and to the foreign national hoping to be granted permanent resident status through an EB-5 visa.

Meeting the Job Creation Criteria

As mentioned previously, the regional center EB-5 investment model facilitates the job creation criteria with greater ease. These projects can count any jobs created by the economic impact of the NCE to meet the criteria. This is known as induced and indirect employment. Examples include the NCE purchasing local materials and the employees of the NCE spending their wages at local businesses. Direct investment projects, on the other hand, can only use positions that appear on the NCE’s payroll to meet the job creation criteria. Part-time and contract employees will not count, only full-time employees who receive a W-2.

In addition, the positions created by the NCE must last for at least two years and be filled by persons legally authorized to work in the United States. The only flexibility lies in the fact that the positions do not need to be filled by the same employee for the two-year period. The position must simply be available for that entire time.

How Involved Do Investors Need to Be In Direct EB-5 Projects?

Direct investment projects often require investors to have a more hands-on approach to the day-to-day operations of the project, at least in comparison to the regional center model. The regional center model historically gives investors the role of a limited partner, which makes it attractive to foreign nationals who are not interested in the business aspect of the project. The direct investment model, on the other hand, often gives investors more of a managerial role, which could be appealing to investors who wish to understand the inner workings of their project and have an impactful role on decisions that affect the business. Potential investors would do well to thoroughly examine the scope and terms of each project before committing funds to it. This will ultimately depend on the project’s management structure.

The greatest difference between the regional center model and direct investment model of the EB-5 investment industry is that one offers greater flexibility while the other is more streamlined. The EB-5 visa program has proven to be a safe and reliable pathway to U.S. permanent residency and is a great opportunity for foreign nationals who aspire to build a life for themselves and their immediate family members in the United States.

On March 15, 2022, President Joe Biden signed the omnibus spending package into law, which included the EB-5 Reform and Integrity Act of 2022. This act brings significant change to the EB-5 industry, most of which is welcomed by stakeholders. Placing a greater emphasis on transparency, efficiency and protection for investors and project developers alike, the EB-5 Reform and Integrity Act may mark the most extensive reform that the industry has seen in its history.

Below is an overview of the revised regulations brought on by the EB-5 Reform and Integrity Act.

• The EB-5 Regional Center Program has been given a long-term reauthorization. Rather than just a few months, the program has been reauthorized through September 2027. A grandfather clause was added to grant the adjudication of any I-526 petitions filed by regional center investors on or before September 2026. Investors whose petitions were put on hold can breathe a sigh of relief, knowing that their petitions will move forward, and all regional centers can resume operations.
• Rural targeted employment areas (TEAs) will now be given priority processing status, and United States Citizenship and Immigration Service (USCIS) will now be responsible for designating high-unemployment TEAs.
• Forms I-526 and I-485 may now be filed concurrently. This is a major advantage for foreign nationals who are residing in the United States under a different visa (such as the H-1B). Should they make an EB-5 investment, they now no longer have to wait for their Form I-485 to be approved before filing Form I-526. This will make the process much more streamlined and efficient.
• Limitations on meeting the job creation criteria. Previously, indirect and induced jobs could make up 100% of the job creation criteria for regional center projects. Under the new regulations, indirect and induced positions can only count for 90% of the job creation criteria. Within that, only 75% can be construction jobs lasting less than two years. This means that there must be at least one direct, W-2 position created by each regional center EB5 investment project.
• The investment thresholds have increased to $800,000 for projects in TEAs and $1,050,000 for projects outside of TEAs.

This reform, while extensive, is welcomed by the EB-5 investment industry with excitement. It marks the beginning of a new era in the industry, promising to make the EB-5 visa process more efficient than ever. Foreign nationals who plan to make an EB5 investment should contact an immigration attorney for guidance. EB5AN, one of the leading consulting firms in the industry, is always available to answer questions and offer guidance.

The EB-5 Immigrant Investor Program has long been a common pathway for foreign nationals to obtain permanent residency status in the United States, exploding in popularity in the 2010s after severe underutilization in its first two decades of existence. But it isn’t the EB-5 program itself that accounts for most of these EB-5 investments—it’s the EB-5 Regional Center Program. Regional centers are overwhelmingly the preferred vehicle for EB5 investments for a number of reasons. In fact, in FY2019, 96% of investors made their EB-5 investment through a regional center.

The EB-5 Regional Center Program was born in 1992, just two years after the EB-5 program itself. Its purpose was to consolidate EB-5 investment funds from different investors to drive more economic growth and achieve higher job creation figures. Since its initial creation, the program has faced several reauthorizations but has yet to be established as a permanent immigration program, even though EB-5 itself is a permanent visa category. After several months of deauthorization since June 2021, the regional center program was revalidated in March 2022 by the EB-5 Reform and Integrity Act.

What Is a Regional Center?

A regional center is a commercial entity that promotes and manages EB5 investment funds and funnels them into select new commercial enterprises (NCEs) that qualify for the EB-5 program. Most regional centers are limited partnerships or limited liability corporations and may be owned privately or publicly or through a public–private partnership. In most cases, they rely on third-party intermediaries to promote their EB5 investment opportunities to prospective investors, although the rise of the internet opens more avenues for regional centers to conduct recruitment themselves.

A regional center must obtain designation from United States Citizenship and Immigration Services (USCIS) by filing Form I-924. Regional centers apply for designation in a specific geographic area, which can be as large as multiple states and as small as a single county. To maintain their regional center designation, they must demonstrate to USCIS in their annual I-924A report that they are promoting economic growth throughout their entire region of designation. Regional centers may apply to adjust their geographic reach.

Regional Center Terminations

The number of USCIS-approved EB-5 regional centers has followed the same trend as the EB-5 program itself. In 2007, USCIS only listed 11 approved regional centers across the United States, a figure that exploded over the proceeding decade to 674 as of December 2020. However, December 2020’s figure comes off the trail of rampant regional center terminations since 2018. Also in December 2020, USCIS listed a whopping 532 regional centers that it had terminated since 2008, with 73% of those meeting their end since 2018. This highlights the importance for foreign nationals considering making an EB-5 investment through a regional center to conduct careful due diligence before committing their funds.

It is worth noting, however, that a regional center termination only affects investors who have yet to receive their conditional permanent resident status. Foreign nationals (and their immediate family members) who make an EB5 investment through a regional center and obtain conditional permanent resident status after I-526 petition approval are unaffected by their affiliated regional center being terminated, as long as they continue to demonstrate compliance with program regulations. Moreover, the Reform and Integrity Act introduced provisions for innocent investors whose regional centers are terminated—they can now reinvest in another project without losing their processing priority date.

Benefits of Regional Center EB-5 Investment

Why do the majority of EB-5 investors choose regional centers? After all, the EB-5 Regional Center Program is only temporary, whereas the base EB-5 Immigrant Investor Program is permanent.

The overall EB5 investment process is usually much more streamlined and secure for regional center investors. The program requirements remain the same, but the program offers two key differences that facilitate the process for investors: relaxed job creation calculation methodology and differently structured governance that affords investors more freedom.

Anyone who makes an EB-5 investment must demonstrate the creation of at least 10 new jobs for U.S. workers to qualify for the permanent resident immigration benefits the program offers. However, while direct EB-5 investors are restricted to direct jobs listed on the NCE’s payroll—which may be impossible for certain types of businesses—regional center investors may additionally count indirect and induced jobs. Indirect jobs are those created by the NCE’s expenditures on external goods and services, while induced jobs are those created in the community by the local spending of the NCE’s employees. Hiring a third-party economist and using approved calculation methodologies, a regional center investor can meet the 10-job EB-5 requirement much more easily than a direct investor.

Next is the different governance structure of regional center EB5 investments, where investors typically serve as limited partners, voting on important business decisions. This is enough to satisfy the requirement of active involvement in the NCE and can be accomplished remotely, allowing an EB-5 investor to live anywhere in the United States, even if it’s far away from their EB-5 project. It also allows those with limited managerial experience to participate in the EB-5 program. Direct investors, conversely, generally engage in the daily management operations of the NCE, which may necessitate managerial know-how and require them to live near the business.

The Department of State (DOS) has released the Visa Bulletin for April 2022. For the EB-5 industry, this monthly publication shows which investors are eligible to apply for and receive their two-year conditional green cards after their I-526 petitions have been approved. This information only pertains to investors from oversubscribed countries with a particularly high demand for the EB-5 visa. However, investors from countries that could potentially become oversubscribed also do well to keep track of the trends presented in each Visa Bulletin.

Chart A, Final Action Dates For Employment-Based Preference Cases

The April 2022 Visa Bulletin does not reflect any changes from the previous month’s cutoff dates. All regional center investors in Chart A are still marked as “Unauthorized”, and direct (that is, “non-regional center”) investors still enjoy “Current” status. For the time being, Chinese investors who receive approval for Form I-526 can apply for and receive their two-year conditional Green Cards as soon as these are available. Chinese investors had experienced a processing backlog from 2015 until the December 2021 Visa Bulletin, but it is unclear if this nationality will enter retrogression once more in the coming months.

Chart B, Dates For Filing Of Employment-Based Visa Applications

The dates for filing only apply to Chinese investors when the country is undergoing visa retrogression, and they restrict when Chinese nationals with approved I-526 petitions can apply for their initial visas. As in Chart A, all Chinese direct investors have no date for filing, but investors in regional center-sponsored projects have a date for filing of December 15, 2015. This means that regional center investors from China with a I-526 filing date later than December 15, 2015, will not be able to apply for their visas.

A Watershed Period in the EB-5 Investment Industry

The April 2022 Visa Bulletin comes at an important time in the EB-5 program’s history: on March 15, 2022, the EB-5 Reform and Integrity Act was signed into law. This bill reauthorized the regional center program and made many other changes to increase the transparency and safety of EB5 investment offerings. Even though regional center investment was revalidated through 2027, this change will only be made effective starting in May 2022. As a result, the April 2022 Visa Bulletin still marks regional center investors as “Unauthorized” in Chart A. It will be intriguing to find out whether the return of regional center EB-5 visa applications will result in backlogs for countries such as China or India.

The first step in the EB-5 visa process is the irrevocable commitment of investment funds in a new commercial enterprise (NCE) in the United States. After that, investors must submit Form I-526, Immigrant Petition by Alien Investor. In this form, investors should include details about the terms of the project they have invested in. In addition, foreign nationals should include documentation supporting the fact that their funds have come from credible sources and that the applicable taxes have been paid. This form is reviewed by United States Citizenship and Immigration Services (USCIS) and, should it determine that their requirements were met, the investor and their immediate family members are granted a two-year residency status.

Although it is a safe pathway to U.S. permanent residency, the EB-5 investment process is not without its challenges. USCIS carefully scrutinizes every detail of Form I-526 and, if they find that there is information missing or something was done incorrectly, they may send a request for evidence (RFE). This doesn’t necessarily mean that the petition will be denied, but it does add another layer of time to a historically slow process.

In order to avoid additional requests for information, potential investors and their immigration attorneys should pay careful attention to an aspect of Form I-526 that demonstrates the financial viability and stability of the EB5 investment project: the business plan.

Potential for Financial Success

A solid EB-5 investment project business plan will show USCIS that the project will successfully meet the job creation criteria, have a positive impact on the economy, and be financially viable. In order to do that, the business plan has to detail how the NCE will operate, including a marketing strategy, a projected budget, and a market analysis from a third party. All aspects of the business plan are important, but the market analysis supports the project developers’ projections for the NCE’s success. The projects most likely to receive approval are the ones that are only using the EB-5 investment funds as a small portion of the business’ overall capital. An overdependence on EB-5 investment funds shows that the business is not financially viable.

Another key factor to keep in mind is consistency throughout the business plan. These may seem like harmless mistakes, but if the information contained in the business plan is not consistent, USCIS is likely to deny the petition. It is in the best interest of the project developers and investors to carefully look over the petition and ensure there are no discrepancies.

Meeting EB-5 Investment Regulations

Prior to irrevocably committing their funds, investors should consider several factors. It is critical that the EB5 investment project not only be a sound, financially viable business, but that it also meets USCIS regulations. One example is ensuring that the NCE can created the required minimum of 10 jobs per investor. In addition, investors should ensure that they’ve met the required minimum investment threshold which, as of March 2022, is $1,050,000 for projects that are not in a targeted employment area (TEA). Projects that are in a TEA have an investment threshold of $800,000.

Meeting the job creation requirement is a key obligation of every EB-5 investment project. After all, the program was created to benefit the U.S. economy while also providing a pathway to U.S. residency for foreign nationals. The minimum of 10 jobs must be available for the entirety of the two-year conditional residency period granted to investors and must be filled by persons who are lawfully authorized for employment in the United States. In addition, the type of employment that can be counted towards the required minimum will depend on the investment model that is being used. The regional center model allows for indirect and induced employment (those that are created by the NCE’s overall economic impact) to be counted. By contrast, direct investments only allow jobs that are directly created by the NCE to count towards the required minimum.

The EB-5 visa process can at times seem overwhelming, which is why it is recommended that foreign nationals choose an immigration attorney with substantial expertise in the industry to guide them through the process.