Form I-485 allows foreign nationals living in the United States to apply to adjust their immigration status to lawful permanent resident. This allows them to receive a Green Card. Applicants can remain in the United States while they await adjudication of their petitions.

In this article, we will explain everything you need to know about Form I-485. We will also introduce you to the EB-5 visa program, which is one of the best ways to get a U.S. Green Card.

What Is Form I-485?

Foreign nationals can file Form I-485, Application to Register Permanent Residence or Adjust Status, to change their non-immigrant status to lawful permanent resident status. This means they will become a U.S. Green Card holder.

To do so, they must meet a series of U.S. Citizenship and Immigration Services (USCIS) requirements.

Let’s take a closer look at who can and cannot file this important form, and what a successful application looks like.

Who Can Apply?

A successful I-485 applicant must meet a series of eligibility requirements.

Most importantly, an I-485 petitioner should be lawfully and physically present inside the United States. They must have entered the country lawfully; in other words, they were admitted or paroled by a U.S. immigration officer, entered with a valid visa, and were carrying proper documentation. An immigrant visa must also be available for such an applicant, per the USCIS Visa Bulletin.

Beyond these requirements, foreign nationals who fall into one of several USCIS eligibility categories may apply for a Green Card. The main ones are:

• Family-based.
• Employment-based.
• Humanitarian.

A successful applicant must also avoid certain conditions or activities that may get their petition rejected.

Who Cannot Apply

Some foreign nationals are not eligible to receive Form I-485 approval. Individuals who demonstrate one or more of the following “inadmissibility grounds,” as described in the Immigration and Nationality Act, are likely to be disqualified from getting this form approved.

• Major health problems, including carrying certain infectious diseases.
• Criminal record that includes being convicted of a serious crime.
• Security concerns that suggest a threat to U.S. national security.
• U.S. immigration law violations.
• Other miscellaneous concerns at USCIS’ discretion.

Furthermore, USCIS will generally not approve Form I-485 from an applicant who has done one or more of the following:

• Entered the United States as a crewman.
• Entered the United States as an informant or witness.
• Entered the United States while traveling through it to visit a different country.
• Been subjected to removal proceedings because of terrorist activities.

However, not all of the aforementioned issues will automatically cause an applicant’s Form I-485 to be denied. In some cases, you may be eligible to receive a waiver.

Consult an experienced immigration attorney to determine whether a waiver may apply to your particular circumstances.

Step-by-Step Instructions: How to Compile and File Form I-485

Be prepared to complete each of the following steps and provide the following types of evidence to file Form I-485.

Use the Latest Version

Look up and fill out the latest version of Form I-485, using the USCIS website. Also be sure to study the filing instructions closely.

Should You File Online or by Mail?

At the time of writing, it was not possible to file an I-485 electronically. However, it is possible to file other related forms online, such as the N-400, Application for Naturalization and I-130, Petition for Alien Relative. To do so, create an account on the USCIS webpage and sign up to receive updates using your alien registration number.

The I-485 must be printed and filled out as a hard copy. Send it to the appropriate filing location. To do so, look up the lockbox address that corresponds to your physical address and mail it in to a USCIS service center or USCIS field office when ready.

Gather Documentation

You must provide a great deal of evidence and many supporting documents to get approval from USCIS of your Form I-485. The time needed to complete this step will vary between individuals. Evidence required includes:

1. Proof of eligibility: If you file Form I-485 concurrently with your I-526/I-526E immigrant petition, include a copy of the I-526/I-526E. If you do not engage in concurrent filing, include a copy of Form I-797, Approval or Receipt Notice. This is an acknowledgment from USCIS that it received the immigrant petition. Either document shows the individual may apply to adjust status.
2. Personal records: Copies of your birth certificate, marriage certificate (if you are married), and divorce certificate (if you are divorced).
3. Photos: Two of the same passport-style photos (glossy and on a white background) taken during the 30-day period before you filed your I-485.
4. Passport and immigration documents: Copies of every page of your passport (or a different government-issued identity document) and documentation proving you were inspected by an immigration officer and admitted or paroled into the United States.
5. Criminal history documentation: Records of your criminal history, if you have one.
6. Medical documentation: Records of your vaccinations and medical exams.
7. Biographic information: Each eligible immediate relative should complete and file Form I-130, Petition for Alien Relative. The day that USCIS receives Form I-130 is called the priority date.

Include the Correct Filing Fee

You must also include the correct filing fee. The amount is $1,440 (including biometric services), effective April 1, 2024.

Use the Correct Mailing Address

Applicants must mail hard copies of their I-485 petitions to the appropriate USCIS lockbox.

A lockbox facility collects documentation and filing fees. It also makes a preliminary decision on whether to accept or reject of the application based on the fee paid. If you are rejected at this point, you probably sent the wrong fee amount.

Petitioners should file their I-485s by mail or courier service to one of the lockboxes below, depending on the delivery service they select. Addresses change from time to time, so check the list of USCIS direct addresses for the latest guidance before submitting your form.

USCIS Dallas Lockbox

U.S. Postal Service (USPS)

USCIS
Attn: I-526/E
P.O. Box 660168
Dallas, TX 75266-0168

FedEx, UPS, and DHL Deliveries

USCIS
Attn: I-526/E (Box 660168)
2501 S. State Highway 121 Business
Suite 400
Lewisville, TX 75067-8003

Attend a Biometrics Appointment and Green Card Interview

USCIS may contact you to set up a biometrics appointment. If so, they will need you to provide photographs, fingerprints, and/or your signature.

Several months later, USCIS may also reach out to set up an interview. You can expect them to confirm your identity and ask you additional questions related to your I-485 during the meeting.
If applicable, USCIS will inform you of the time, date, and location of your appointments.

Receive Employment Authorization Document (EAD)

If you need to get a work permit, file Form I-765, Application for Employment Authorization. Submitting this means you can request an EAD.

Once your I-485 is approved, an EAD is not required if you wish to work in the United States. Lawful permanent residents of the United States do not need one. The Green Card itself is evidence of employment authorization.

Form I-485 Estimated Processing Times

An adjustment to your U.S. resident status is a huge and often lengthy step. It’s not uncommon for EB-5 participants to wait years to secure their Green Cards.

Factors such as different caseloads between local USCIS offices, the basis for the application, and whether the paperwork is correct and complete can cause Form I-485 processing times to vary widely among applicants.

For example, USCIS adjudicates 80% of employment-based I-485 filings submitted to the California Service Center within 20.5 months. However, it decides on 80% of employment-based I-485 applications filed with the Orlando, Florida USCIS field office within 38 months—almost twice as long.

USCIS calculates these estimated processing times based on how long it took them to adjudicate 80% of their cases during the preceding six months and updates the figures on the USCIS website regularly.

Within two years of getting Form I-485 approved and receiving conditional permanent residency, you must file an I-829 petition to have those conditions removed and become a U.S. permanent resident.

Save Time with Concurrent Filing of Form I-485 and Form I-526

Thanks to the passage of the EB-5 Reform and Integrity Act of 2022, qualified investors living in the United States on non-immigrant visas may concurrently apply for adjustment of status while filing their I-526E petitions.

Concurrent filing allows EB-5 investors to enjoy the benefits of being lawful permanent residents.

While they wait for their I-485s to be adjudicated, foreign investors and their families can apply for work authorization and travel permits. The latter, also known as an advance parole document, permits a noncitizen to return to the United States after completing temporary travel outside of the country.

The EB-5 Immigrant Investor Program: One of the Best Ways to Get a Green Card

If you are an immigrant already living in the United States, you may be able to obtain your Green Card by making an EB-5 investment.

Each year, numerous foreign nationals invest in the EB-5 program domestically, receiving U.S. permanent resident status for themselves and their qualified immediate family members upon successful completion.

Let’s explore in greater detail what this program is, who may qualify to participate, and how to complete the EB-5 process successfully.

What Is the EB-5 Immigrant Investor Program?

Foreign nationals with the means to invest foreign capital proven to be lawfully obtained in an approved EB-5 project have an opportunity to secure Green Cards for themselves and their eligible family members through the EB-5 Immigrant Investor Program.

This immigrant visa program is a pathway toward U.S. permanent resident status that has been available to foreign investors since the 1990s. It was proposed as a solution to a downturned U.S. economy and functions as a pathway to Green Cards (and citizenship, if desired) in return for an infusion of foreign capital into program-approved projects across the country.

Minimum EB-5 Investment Requirements

In most cases, the minimum requirements to gain U.S. permanent resident status through the EB-5 program are as follows:

• A $1,050,000* investment in a program-approved new commercial enterprise (NCE).
• The creation of 10 new full-time jobs for U.S. workers.
• Capital proven to have derived from lawful sources that remains “at risk” throughout the investment period.

*If an investment is made in a designated TEA (targeted employment area), then the minimum investment required is reduced to only $800,000.

Essentially, there are seven basic steps in the EB-5 investment process. The next section provides a brief overview of how the EB-5 investment process works through a firm like EB5AN.

Seven Steps of the EB-5 Investment Process with EB5AN

EB-5 investors are not required to consult an attorney or firm that specializes in EB-5 investment processing. That said, many foreign investors understand the value in having access to experienced professionals for questions and concerns. Additionally, working with a specialized EB-5 investment team is a way to ensure a program participant’s EB-5 investment is handled appropriately throughout the process.

Here is how the investment process works through EB5AN:

• Initiate the EB-5 investment process.
• Prepare the supporting documentation for your capital investment.
• Finalize your EB-5 investment partnership.
• Make the appropriate capital funds transfer.
• Petition for your conditional Green Card status.
• Conduct the necessary government interviews and/or request an adjustment of status.
• Complete your program terms, petition for the removal of conditions, and recuperate your EB-5 investment (plus any gains your investment may have realized).

Most investors can have their immigration status adjusted within just a few years. However, navigating the complexities of the program is not always easy.

When the EB-5 Program Can Become Complex

While the EB-5 program provides one of the quickest routes to a U.S. Green Card, every step of the journey has its own set of rules, which can be tricky.

For example, processing delays are common. However, most investment terms are not so flexible. When an investment period extends beyond the funding terms, an option to redeploy EB-5 capital to maintain the required at-risk status may seem like the best choice.

For these reasons, it is always advisable to partner with an experienced EB-5 attorney to ensure your immigrant visa journey toward a Green Card is as smooth as possible.

Partway through their EB-5 journey, investors who meet all of the EB-5 investment requirements may seek to update their immigration status through Form I-485, which we addressed earlier.

Save Time and Effort with EB5AN

Adjusting your immigration status via Form I-485 is just one step in a broader EB-5 process. Receiving lawful permanent residence in the United States will open many doors for you and your family.

However, the EB-5 process can be quite difficult and risky for those who are inexperienced and go it alone. Mistakes can lead to denials. To give your application the best odds of approval, be sure to work with a professional team.

An industry leader, EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

If you have questions about anything from how to select a project and seek legal counsel to the implications of becoming a Green Card holder, book a call with us today to receive in-depth support from our EB-5 team.

Form I-829, Petition by Investor to Remove Conditions on Permanent Residency, is the form filed by EB-5 investors to apply to have their conditional resident status lifted. Submitting it is an exciting moment—it’s the final step before obtaining your permanent Green Card!

However, it can take United States Citizenship and Immigration Services (USCIS) a long time to process your petition, and it’s difficult to predict how long you will have to wait. This creates uncertainty for EB-5 investors and their families. It’s therefore important to fully understand what the I-829 process involves and how the processing times work.

This article analyzes recent and historic data of processing time for Form I-829 to help you understand how long you may have to wait. We’ll also explain what you can do to give your Form I-829 the best chance of being approved quickly.

 

What is Form I-829?

The EB-5 Immigrant Investor Program allows foreign investors to gain permanent residency in the United States by investing in the country’s economy. The initial steps are:

1. Invest in a new commercial enterprise (NCE) in the U.S.
2. Submit Form I-526E
3. Leave your investment at risk for at least two years
4. Ensure your investment generates at least 10 full-time jobs for U.S. citizens

When an EB-5 investor’s Form I-526E is approved, they are given a conditional Green Card. This gives them the right to live and work in the U.S. It also gives them the right to travel internationally and return to the U.S.

An investor’s conditional Green Card lasts for the two-year period during which their investment is at risk. Form I-829 is filed by immigrant investors 90 days before the expiration of this two-year period, assuming they’ve generated the required number of jobs.

Form I-829 is 11 pages long. It requires EB-5 investors to submit documentary proof that they have fulfilled the conditions of their visa. This includes:

✔️ Bank statements or similar documents proving that the investor invested the required amount of capital into the right company
✔️ Proof that this investment remained with the company throughout the two-year period
✔️ Proof that the investment generated 10 full-time jobs
✔️ Copies of the EB-5 investor’s conditional Green Card, and those belonging to family members
✔️ Details of any U.S. criminal convictions accrued by the investor during the two-year period
✔️ A filing fee of $3,750 and biometric services fee of $85. (The filing fee will be raised to $9,525 as of April 1, 2024.)

The EB-5 investor then sends the form to USCIS for processing. This involves USCIS confirming that the investor has met the program’s requirements. They will also check if there are any legal issues surrounding the investor’s application.

The EB-5 investor’s conditional permanent resident status gets an automatic two-year extension when they submit Form I-829. It can be extended year-by-year, until the investor’s Form I-829 is adjudicated.

Once USCIS approves the form, the investor’s visa conditions are lifted and they gain permanent resident status in the U.S.

What Is the I-829 Waiting Time?

USCIS reports that, as of November 14, 2023, 80% of I-829 petitions were processed within 67 months—that’s approximately 5.5 years. The median processing time was 49.4 months, or 4.1 years.

At first glance, the 67-month figure may seem worrying. However, this represents the longest time taken within the fastest 80% of cases. Many cases were completed far quicker, as evidenced by the 49.4-month median. Because of this, we know that, during 2023:

• 50% of I-829 forms were processed faster than 49.4 months.
• 50% of I-829 forms were processed slower than 49.4 months.

In our experience, the I-829 processing time is around three years for many EB-5 investors. However, this shorter timeframe may be because the investors we work with submit comprehensive forms with strong evidence.

How many I-829 petitions get denied?

According to data from Q3, 2023, 444 I-829 petitions were approved, and 30 were denied. In our experience, the most common reasons for denial are because the investor does not—or can’t—prove that they created the required number of jobs or that they supported the business throughout the two-year period.

When can I send an inquiry?

USCIS won’t accept an inquiry about the progress of your I-829 petition until it’s significantly surpassed normal processing times. For example, if you submitted your petition on November 14, 2023, you can’t send an inquiry until September 25, 2030. Unfortunately, when the time at which inquiries are allowed is nearly 7 years away, they’re effectively discouraged.

This happened to I-526 petition processing times in 2020. The estimated processing time range for I-526 petitions nearly doubled, leaving new investors with case inquiry dates that were up to five or six years away. The entire situation was mysterious, given that statistics showed hardly any pending I-526 petitions from so long ago. Some speculated that it had been intended to quell case inquiries entirely.

What are the longest and shortest processing times?

The estimated Form I-829 processing time figure from the USCIS website isn’t very helpful. The median processing time only gives a slightly better indication of how long it’ll take. However, in the past, USCIS published more detailed data on processing times. These insights can help us understand the discrepancies between the estimated and actual processing times.

For example, below is data from Q1, 2019. It gives a breakdown of how many forms were processed within different timeframes. As you can see, the vast majority of cases were completed within 36 months. The timeframe in which the most applications were approved was 18–24 months, and some were even approved within 12–18 months. The longest processing time was 6.5 years.

Factors affecting I-829 processing times in 2023

Of course, statistics from late 2019 don’t reflect the reality in late 2023. The pandemic created backlogs in processing times. But there have also been many changes to the EB-5 Program, including the introduction of the Reform and Integrity Act of 2022. These changes have led to USCIS adopting more efficient processing practices.

I-829 processing times depend on USCIS’s productivity, and, while real-time processing data is not available, I-829 adjudication data for each quarter is available on USCIS’s Citizenship and Immigration Data page. The chart below shows trends in USCIS productivity by quarter since FY2015 Q1, revealing clear fluctuations in USCIS’s I-829 adjudication productivity over the years.

How to Speed Up Your Form I-829 Processing Time

EB-5 investors have very little control over Form I-829’s lengthy processing times. There are, however, a few things you can do to speed up the process:

File at the right time

Form I-829 should be filed within a 90-day period prior to the expiration date of your two-year conditional resident status. If you leave it until your conditional Green Card expires, your ability to gain a permanent residency card will be jeopardized. However, if you file it too early, it will be rejected.

Fill all documentation and evidence correctly

To get your I-829 form approved, you need to provide concrete evidence that your investment has created 10 full-time jobs. Any gaps in documentation or weak evidence may slow your form’s processing time or even lead to it being rejected.

Work with a regional center

Regional centers document job creation data on behalf of their investors. They can also help their investors compile the necessary evidence and documentation. Many regional centers work closely with USCIS and will know what a good I-829 petition looks like.

Make an expedited request

If your I-829 petition was submitted more than two years ago, you can request for it to be expedited. However, you need to have a specific, compelling reason. These include:

• Severe financial loss
• Humanitarian reasons or emergencies
• Situations where it will benefit the United States’ cultural or social interests (this needs to be requested via a non-profit organization)
• Cases where it’s in the interest of the United States government
• Errors made by USCIS

I-829 Processing Times: Conclusions

The EB-5 Immigrant Investor Program is a great way for foreign nationals to become lawful permanent residents in the U.S. However, I-829 processing times can be frightening. A long waiting period can mean uncertainty for investors and their families. However, it’s important to remember that many Green Cards are granted within a reasonable timeframe. Some are even approved quickly.

Our advice is to make a contingency plan, just in case your I-829 petition is delayed. This avoids disappointment and ensures you have a plan in place, should there be delays.

For more information on the EB-5 process or to find help filing your I-829 petition, get in touch with EB5AN. We’ve helped hundreds of EB-5 investors to gain permanent residency status in the United States. Book a free consultation and discover how we can do the same for you.

The EB-5 Immigrant Investor Program may be one of the quickest and simplest pathways to U.S. permanent residency, but that doesn’t mean the process is necessarily quick or simple. Lengthy wait times have long plagued the EB-5 program, particularly for investors from backlogged countries. Excessive EB-5 demand is clearly one contributing factor to long wait times for an EB-5 visa, but it’s far from the only one, and those making an EB-5 investment should bear in mind the multitude of factors at play.

Obtaining conditional permanent resident status through the EB-5 program is a two-stage process: first, investors must file Form I-526, and then, upon I-526 approval, they must apply for the U.S. green card itself. As EB-5 investors from backlogged countries know all too well, simply receiving I-526 approval does not necessarily mark the end of the wait. To balance the excessive demand with the lower supply of EB-5 visas, United States Citizenship and Immigration Services (USCIS) releases monthly Visa Bulletins that limit the number of investors who can claim an EB-5 visa based on their priority date, or the date USCIS received their I-526 petition.

Most foreign nationals with an active EB-5 investment may file for their EB-5 visa immediately upon receiving I-526 approval, but for particularly backlogged countries—as of November 2020, only China—investors must wait even to file their green card application. Investors from countries not marked as “current” in Chart B of the monthly Visa Bulletin must hold off even on submitting their application for U.S. permanent resident status, elongating their wait indefinitely.

However, simply being from a “current” country does not free an EB-5 investor from hurdles and delays in their EB-5 journey. Anyone considering making an EB5 investment must also take into account that factors such as USCIS productivity and manpower or U.S. embassy and consulate closures could delay their journey to an EB-5 visa. Some such obstacles, such as the COVID-19 pandemic, whose subsequent global shutdown has thrown countless EB-5 investors into processing limbo, are unforeseeable. Those subject to a final action date in Chart A of the Visa Bulletin must also understand that this means that their priority date becoming current is not a guarantee of EB-5 visa issuance.

Effects of COVID-19

The COVID-19 pandemic, not USCIS itself, was the primary reason for the astoundingly low number of EB-5 visas issued in FY2020. Catching the whole world by surprise, the virus quickly spread around the globe and temporarily shut down nearly everything in its path, including U.S. consulates and embassies. Unable to proceed with their visa interviews, EB-5 investors from around the world have been left unable to claim their U.S. green cards—but those already living in the United States have escaped this obstacle.

With the ability to bypass the National Visa Center (NVC) and simply submit Form I-485 to adjust their immigration status, domestic investors have been one of the primary beneficiary groups of the COVID-19 pandemic in the EB-5 sphere. Given the consular shutdowns around the world, when final action dates in the Visa Bulletin move forward, they generally benefit only those applying for a U.S. green card by adjusting their status. In normal times, domestic and overseas applications are affected roughly equally, but in the COVID-19 era, the Visa Bulletin suddenly takes on a different significance for these two groups.

Wait Times for Indian Investors

The EB-5 world collectively rejoiced when the Indian final action date finally became “current” in July 2020. True to predictions from the chief of the Visa Control and Reporting Division at the U.S. Department of State, it has also remained current as of November 2020. However, this monumental status change doesn’t necessarily mean the wait times for all Indian EB-5 investors have been reduced. It’s important to consider where in the process the investors are. Whereas many investors from Vietnam, a backlogged country, have received I-526 approval and are awaiting their EB-5 visa, numerous Indian investors are still waiting for their I-526 petitions to be adjudicated. Since the Visa Bulletin does not account for these investors, it was able to leap forward, leaving thousands of Indian EB-5 investors behind. When these individuals from India with EB5 investments are finally approved, the final action date could fall back, and India could once again become a backlogged country.

The devastation that the COVID-19 pandemic has caused, including in the United States, is not news to anyone. As the world moves into a second wave and Europe sees the re-emergence of lockdown measures, immigration may be the last thing on most people’s minds. But in fact, the COVID-19 pandemic may present the perfect opportunity to invest in the EB-5 Immigrant Investor Program for a permanent life in the United States.

Life returning to normal is a question of when, not if. Even in the absence of a vaccine, viruses naturally weaken over time, and populations naturally build up herd immunity, meaning a return to normalcy is inevitable. Though it is still, as of November 2020, unknown when the world can return to normal life, those investing in their future through an EB-5 investment have plenty of time to wait. The program’s long processing times for I-526 petitions are no secret, with investors often waiting up to two years. EB-5 investors from backlogged countries—as of November 2020, China and Vietnam—must generally wait even longer.

The long processing times are not a good thing—there is even legal precedent of judges deeming unreasonable the wait times United States Citizenship and Immigration Services (USCIS) subjects EB-5 petitioners to. However, as they remain part and parcel of the EB-5 journey, advance planning is paramount, and prospective EB-5 investors can take advantage of the “lost time” of the pandemic to wait for USCIS to adjudicate their I-526 petition.

Another advantage the pandemic has bestowed upon those making EB5 investments is the flood of unused family-based visas reallocated to the employment-based visa programs. Each fiscal year, unused family-based visas from the previous year are rolled over to the employment-based programs, and the EB-5 program is entitled to 7.1% of these visas. The pandemic effectively halted all streams of immigration, including family-based immigration, which has resulted in the number of available EB-5 visas in FY2021 nearly doubling from the annual average. That means roughly twice as many investors as normal can receive their EB-5 visas in FY2021.

Some prospective investors may have doubts about the viability of initiating an EB-5 investment during the pandemic due to the suspended operations at U.S. consulates and embassies and travel restrictions that prohibit travelers from certain regions. These indeed constitute hinderances to an EB5 investment. However, anyone considering making an EB-5 investment should conduct careful due diligence on any potential project and EB-5 regional center, which can be time-consuming. Additionally, EB-5 investors must collect and submit complicated documentation proving the lawful sources of their EB-5 capital when filing their I-526 petition, which can account for another large chunk of time. By the time an investor is ready to submit their I-526 petition, life may already be well on its way to normalcy.

Potential Progress in the COVID-19 Fight

Since the onset of the pandemic in the United States, the Centers for Disease Control and Prevention (CDC) has been toiling away to keep Americans safe. According to the CDC, the government-initiated Operation Warp Speed, a public–private partnership intended to accelerate the development and distribution of a COVID-19 vaccine to the American people, has been operating since the beginning of the crisis, and while there remain no approved vaccines as of November 2, 2020, a CDC report dated October 14, 2020, indicates the possibility of a vaccine becoming available before 2020 ends.

A COVID-19 vaccine has been hailed by many as the key driver in the eventual return to normalcy. A vaccine could allow businesses to reopen with larger capacity, schools and universities to return to in-person classes, and the entertainment, travel, and hospitality industries—the most heavily affected industries—to resume their services. Given that the lucrative business opportunities and world-class education options the United States offers are among the top reasons foreign nationals opt to immigrate to the nation, the advent of a COVID-19 vaccine promises a return of the United States immigrants know and love—just in time for those who start the EB5 investment process now.

A life in the United States is highly sought after among foreign nationals around the world. For foreign investors and entrepreneurs, there exist multiple pathways to gain residency in the world’s largest economy, each with its own pros and cons. Two popular U.S. immigration programs for foreign investors and entrepreneurs include the E-2 visa program and the EB-5 Immigrant Investor Program. Prospective immigrants should consider their individual situation and determine whether the E-2 program, the EB-5 program, or a combination of both is the best route for them.

EB5AN collaborated with Beshara Global Migration Law Firm to present a webinar on making the switch between these two visas and how to make an EB-5 investment by installments. Watch the webinar on YouTube, download the PDF slides of the presentation, or read on to learn more about the process.

The E-2 Visa

The E-2 program is open to entrepreneurs from specific treaty countries to looking to temporarily operate a business in the United States. The visa is valid for two years but may be renewed indefinitely, and spouses and dependent children are also eligible for status. Spouses may apply for work permits within months, but while dependent children may qualify for better chances in college admissions and in-state tuition savings, they cannot apply for work permits.

The E-2 program does not entail any minimum required investment amount, although $200,000+ is often cited as a general recommendation. What the program does require is that the investor owns at least 50% of the investment business. The investor may launch the business themselves or acquire an existing business—all that matters is that they own at least 50% of the business entity. If the primary purpose for purchasing a business is the opportunity to live in the United States, the investor may set up the terms of purchase such that it is only executed if their E-2 visa is approved.

For many prospective investors, the most significant obstacle of the E-2 program is the nationality restriction. Only investors from 81 treaty countries may participate in the program, closing the doors to countries with massive populations and high demand, such as China, India, and Vietnam. Fortunately, there is a solution: Some treaty countries, such as Grenada, offer quick citizenship-by-investment programs.

The EB-5 Visa

The EB-5 Immigrant Investor Program grants U.S. permanent resident status to foreign investors who inject $1.8 million into a qualifying EB-5 project, with the minimum required investment amount dropping to $900,000 if the project is in a targeted employment area (TEA). Permanent resident status is also available to an investor’s spouse and dependent children and comes with a myriad of benefits, including the right to live indefinitely in the United States and work, study, and travel anywhere in the country.

To participate in the EB-5 program, an investor must demonstrate to United States Citizenship and Immigration Services (USCIS) that their investment capital was derived from lawful sources and that they themselves have a clean criminal record. Permanent resident status is initially granted on a two-year conditional basis, and investors can remove the conditions after the two-year investment period if they can prove that their EB-5 investment funded the creation of at least 10 new full-time positions for U.S. workers.

The new commercial enterprise (NCE) into which the EB5 investment capital is injected may be the investor’s own business or a third-party entity—as long as the funds have been lawfully sourced, remain at risk for the duration of the investment, and create the required 10 jobs, the investor and their family are eligible for EB-5 visas.

Converting an E-2 Visa to an EB-5 Visa

For some foreign nationals, the best option may be to combine these two immigration pathways. One key advantage of the E-2 visa is the fast processing times—typically, E-2 petitions are adjudicated within just three months. Given that the average processing time for the EB-5 program is around two years—and even longer for investors from backlogged countries—the E-2 program enables a must faster relocation to the United States.

The first step is to obtain an E-2 visa, which can be completed in a matter of months (a bit longer if the investor must acquire a new citizenship first). Once the investor has settled in the United States and their E-2 business has been operating for at least a year, they may then invest additional funds into the business to meet the EB-5 minimum required investment amount or, alternatively, make an EB-5 investment in a separate business.

To qualify for a green card, the EB5 investment must create 10 new full-time jobs. If the investor is investing in their own business, they may expand their hiring timetable to account for these 10 new positions or partner with an EB-5 regional center to count indirect and induced jobs toward the requirement. Those who opt for the “separate business” route may choose to either directly manage the EB-5 investment or passively invest through an EB-5 regional center, but both options are open to regional center affiliation to reduce immigration risk and relax the job creation requirements.

Partial EB-5 Investments

It is still possible to make an EB5 investment even if an investor doesn’t have the entire $1.8 million or $900,000 available in liquid capital. In such cases, the investor may invest a portion of the EB-5 capital and present a promissory note with a pledged security interest covering the remaining investment funds. The investor then makes installment payments on the rest of the capital, with the note holder retaining the right to force the liquidation of asset in the event of failure to inject the full EB-5 capital amount.

With this setup, a foreign investor can easily obtain an E-2 visa and begin their life in the United States and then switch to an EB-5 investment to attain permanent resident status and stay in the United States indefinitely. The EB-5 program also opens the door to naturalization, as foreign nationals may apply for U.S. citizenship after five years of permanent residency.

One of the many requirements the EB-5 Immigrant Investor Program imposes upon those who make an EB-5 investment, the obligation to prove the lawful source of funds of the full EB-5 investment has long represented one of the most challenging aspects of an EB-5 investor’s I-526 petition. While EB-5 investors can use EB-5 investment capital derived from any number of sources, whether employment income, funds derived from the sale of assets, or gift money from parents, the need to document its legality remains consistent. Depending on the source, this requirement can be difficult and time-consuming to fulfill.

Then, on top of the onerous task of carefully documenting the lawful sources of all $1.8 million ($900,000 for targeted employment area, or TEA, projects) in EB5 investment capital, investors from certain countries may have an additional source-of-funds burden thrust upon them. Certain countries, often in Asia, the Middle East, and Africa, impose restrictions on the transfer and handling of U.S. dollars within their jurisdiction, with some countries even ruling it illegal to purchase U.S. dollars. Notably, China, Vietnam, and India—the top three nations in terms of EB-5 demand, as of October 2020—all impose some level of restrictions on the transfer of U.S. dollars.

EB-5 Currency Swaps

To bypass the restrictions on U.S. dollars in their home countries, EB-5 investors have taken to engaging in “currency swaps” to invest their capital in a qualifying EB-5 project. The process is straightforward: the EB-5 investor transfers the equivalent of $1.8 million or $900,000 in their local currency to a third-party intermediary, and upon receipt of the transfer, the intermediary transfers the amount in U.S. dollars to the designated escrow account of the EB-5 investor’s project. The problem is that, in 2016, after years of implicitly understanding that a currency swap is the only means many foreign nationals have to make an EB5 investment, United States Citizenship and Immigration Services (USCIS) began to issue requests for evidence (RFEs) demanding that investors provide lawful source-of-funds documentation for the intermediary’s U.S. dollars.

The ease of documenting the legal sources of third-party currency swap dollars depends on the type of currency swap that has occurred. Currency swaps can largely be broken down into three overarching categories:

• A currency swap with an individual personally known to the investor, such as a relative or friend
• A currency swap through a company acting as a licensed money exchanger
• A currency swap with an individual or company not personally known to the investor and not licensed as a money exchanger but who agrees to exchange the capital for a fee

Currency Swaps Through a Known Individual

The first type of currency swap is common among EB-5 investors from China and entails the investor asking a relative or friend with U.S. dollars outside of China to accept their payment of an equivalent amount in yuan and transfer the necessary capital in U.S. dollars to the designated escrow account. If an investor receives an RFE requesting documentation of the legality of the third-party individual’s U.S. funds, they are typically required to prove either how the person earned the U.S. dollars in the third country or how they earned the money in the restricted country and then transferred it to the third country.

Generally, USCIS requests employment records and tax returns from the third party, as well as bank statements from the investor showing the transfer of their local currency to the third party. At the very least, USCIS requires evidence of the third party’s employment. If the friend or family member agrees to provide their personal information and funds documentation to USCIS, the investor is usually approved, assuming no other problems with the I-526 petition. However, if the friend or family member refuses, the EB-5 investor’s petition may be denied.

Currency Swaps Through a Licensed Money Exchanger

When an EB-5 investor contracts a licensed money exchanger to transfer their EB-5 capital to their project’s escrow account, proving the lawful source of the third party’s funds is generally straightforward and simple: typically, all that’s needed is evidence of the company’s license to operate as a currency exchange agent. In countries such as Hong Kong, Singapore, and Australia, money exchangers are subject to strict anti–money laundering regulations, so a valid license is sufficient to prove the lawfulness of the capital.

EB-5 investors who receive an RFE to demonstrate the path of funds in this type of currency swap should supply USCIS with the contract of their deal with the exchange house, the license of the money exchanger, the wire transfer of local currency from the investor to the exchange house, and the wire transfer of U.S. dollars from the money exchanger to the investor’s U.S. bank account or the designated escrow account.

Currency Swaps Through an Unlicensed, Unknown Third Party

Whereas it is relatively easy to demonstrate the lawful source of funds for the first two types of currency swaps, problems arise in the third type, where the investor contracts an unknown, unlicensed individual or company to conduct the transfer for a fee. This may be the only option for EB-5 investors from certain countries in the Middle East, Asia, and Africa, where licensed exchange houses may not operate. Typically, these individuals or companies cannot present source-of-funds documentation or a money exchanger license, although these informal exchange houses sometimes do have business licenses to operate as a currency exchanger, which USCIS may consider acceptable. In some cases, a business with U.S. funds may also be willing to provide business records to justify the lawful acquisition of the currency, allowing the investor to satisfy the source-of-funds requirement for this third-party capital.

Barring these two possibilities, it is often impossible for applicants who have conducted their EB-5 investment through this means to prove the lawful sources of the third-party capital, leading to the denial of their I-526 petition. Thus, EB-5 investors in countries with restrictions on U.S. dollar transfers and no regulatory body for currency exchangers must conduct careful due diligence into their options for transferring their EB-5 capital to the United States. Failure to do so can come with a major cost: the loss of a bright, prosperous future in the United States.

As we enter the second month of FY2021, the EB-5 final action dates show no sign of jumping forward rapidly. The figures come as a disappointment to the many Chinese and Vietnamese applicants with EB-5 investments waiting to finally begin their new lives in the United States. FY2021 has potential to be a phenomenal year for EB-5 investors, considering that nearly twice as many EB-5 visas than average are available in FY2021—a beneficial side effect of the COVID-19 pandemic and its devastating effects on travel and immigration. With this news released at the beginning of the fiscal year in October 2020, investors hoped the surge in available EB-5 visas would spur rapid forward momentum in the November 2020 Visa Bulletin. Alas, this was not the case.

Generally, United States Citizenship and Immigration Services (USCIS) releases the monthly Visa Bulletin around two weeks before the respective month begins, but the November 2020 Visa Bulletin showed up barely before November began. This delay indicates possible difficulties in determining the final action date figures this time around. Temporarily suspended visa services at U.S. consulates and embassies have left countless EB-5 investors unable to proceed with their EB-5 journey, regardless of the Visa Bulletin dates, while domestic investors have encountered no obstacles in filing Form I-485 to adjust their immigration status. Thus, moving the final action dates forward generally helps only I-485 applicants. This leaves USCIS with a dilemma: push the final action dates forward and risk major retrogression when routine visa services resume, or keep the pace slow and risk countless EB-5 visas going unclaimed?

The final action dates in the November 2020 Visa Bulletin indicate USCIS’s decision to pursue the latter option. The dates are almost identical to those of the October 2020 Visa Bulletin, with the Chinese final action date staying put and the Vietnamese final action date moving ahead by two weeks. That puts the Chinese final action date at August 15, 2015, and the Vietnamese one at August 15, 2017. India has once again retained its “current” status after initially achieving it in July 2020, but retrogression in the future is possible.

China remains the only country with an EB-5 date for filing, which has remained at December 15, 2015, for the ninth month in a row. Those from China with EB5 investments who are waiting to file their application for a U.S. green card have been stuck in limbo since the onset of the COVID-19 pandemic in the United States, and their frustration is not set to end for at least another month.

Considering the dismal news of the November 2020 Visa Bulletin, individuals making EB-5 investments from backlogged countries should hope for eased COVID-19 restrictions to trigger forward movement in the Visa Bulletin. At least in November, USCIS has clearly chosen to let EB-5 visas go unclaimed to avoid potential visa retrogression in the future.

The EB-5 Immigrant Investor Program, which carves out a pathway for foreign investors to obtain U.S. green cards for themselves and their immediate family, offers two types of investment projects: those located within a targeted employment area (TEA), and those that are not. The majority of foreign nationals who make an EB-5 investment to obtain permanent resident status in the United States invest in a TEA project because it halves the amount of required capital from $1.8 million to $900,000.

In the past, EB-5 investors would obtain a TEA designation letter from the state labor department attesting to the project’s TEA status. They would then include this letter with their I-526 petition to United States Citizenship and Immigration Services (USCIS), solidifying their EB5 investment in the lower required amount.

That all changed when the Modernization Rule kicked in on November 21, 2019. The new regulation introduced a slew of new rules for TEAs, including the elimination of the state-issued TEA designation letter. The new set of rules places the onus for TEA status justification squarely on the shoulders of the EB-5 investor, requiring them to submit documentation supporting the designation of the project as a TEA project alongside their I-526 petition.

Investors can still obtain a letter to show USCIS that their project is in a TEA, but it can’t come from the state—it must now come from a private expert. And a letter alone won’t suffice—an investor must provide a myriad of documentation to justify their lower EB-5 investment amount.

EB5AN’s TEA Map

Proving the TEA status of an EB-5 project can be challenging—but EB5AN’s TEA map dramatically facilitates the process. EB-5 investors are required to use official data and figures from the U.S. Census Bureau and Bureau of Labor Statistics, but it can be difficult for the uninitiated to scour these sites to cull the relevant pieces of data. The price of mistakes is high, too—insufficient or inaccurate data can cost an EB-5 investor an extra $900,000—or, if they don’t have the funds to double their EB5 investment, their bright future in the United States.

EB5AN’s TEA map is the ideal solution for EB-5 investors looking to justify the TEA designation of their investment project. It’s simple and straightforward to use: simply enter an address, and the map will display the TEA status of the region. The map is designed for the easy and instantaneous identification of TEAs, with census tracts that qualify as TEAs highlighted in orange.

It’s important to note that even if the individual census tract that an EB-5 project is located in does not qualify for TEA status, it may when combined with adjacent census tracts. The EB5AN TEA map automatically combines census tracts when necessary to create a custom TEA. This maximizes the potential of any EB-5 project to qualify for TEA status.

If an investor’s EB-5 project is indeed located in a TEA, they can also download a free TEA letter template, further facilitating the process of demonstrating TEA status to USCIS. By simply filling in the details of the specific project, an EB-5 investor can easily craft a professionally written and succinct TEA letter that offers clear argumentation for the TEA designation of the given project.

The I-526 petition is the first step to initiating the EB-5 process with United States Citizenship and Immigration Services (USCIS). In an I-526 petition, an EB-5 investor outlines details about themselves and their chosen EB-5 project, including the likelihood of the new commercial enterprise (NCE) to create at least 10 new full-time jobs for U.S. workers with the invested capital. If USCIS approves the investor, they are deemed eligible for an EB-5 visa and may apply for conditional permanent resident status for themselves, their spouse, and any unmarried children below the age of 21.

Foreign nationals who have committed to making an EB-5 investment, whether for $1.8 million or the reduced $900,000 amount for targeted employment area (TEA) projects, must compile and submit an I-526 petition to formally launch their EB-5 application process. Although the precise procedure differs from project to project and can be found outlined in a given project’s documentation, EB-5 investors generally file their I-526 petition after transferring their EB-5 capital to a designated escrow account. Should an investor receive a denial on their EB-5 petition, the capital in the escrow account is returned to them.

Once an EB-5 investor has consulted an immigration lawyer about the suitability of the EB-5 program for their goals, conducted meticulous due diligence to select a trustworthy EB-5 project with low immigration and financial risk, and tentatively committed their EB-5 funds to the NCE in the form of a transfer to the escrow account, it’s time for them to put together their I-526 petition. The first step is to locate the latest version of the form on the USCIS website. The next step is to carefully fill out the form and gather the accompanying documentation, which can be time-consuming.

Required Information for Form I-526

Those making an EB5 investment are required to divulge substantial amounts of information about themselves, their investment, and their family. Below are a few examples of the information EB-5 investors must include in their I-526 petition:

• Personal details, such as country of citizenship, current and past addresses, and employment history
• Personal information about the applicant’s spouse and dependent children
• Details about present U.S. immigration status, for those applying domestically as a holder of a different visa
• Information about previous U.S. immigration dealings and visas the investor has received or applied for
• Information regarding the EB-5 investment

Most of this information should be easy for an EB-5 investor to obtain and include in an I-526 petition. Far more challenging is collecting the supplementary documentation, including proof of the lawful sources of the EB-5 capital.

Collecting the Required Documentation for an I-526 Petition

Applicants are required to submit substantial documentation to support their EB-5 investment. While the most daunting and time-consuming is usually the source-of-funds documentation, which demonstrate the legality of an investor’s EB-5 capital, investors must also include documentation on their chosen EB-5 project, including financial reports and hiring timetables to showcase the expectation of creating 10 new full-time jobs for U.S. workers during the investor’s two-year conditional permanent residency window. If the project is in a TEA, the investor must also append the appropriate documentation to prove the project’s status as being in a high-unemployment or rural TEA.

Gathering the source-of-funds documentation can be tricky, depending on the type of capital involved. Applicants may derive their EB5 investment from any number of sources, including loans, inheritance money, and donations, but in all cases, the lawful sources of the funds must be demonstrated. If the capital is derived from a gift, the investor must provide a note outlining the donation and waiving the recipient’s obligation to repay the money, and the donor’s lawful acquisition of the funds must be documented.

EB-5 investors are urged to consult an experienced EB-5 immigration attorney about the source-of-funds requirement. Some fund sources are significantly easier to trace than others, so an EB-5 immigration lawyer can help an investor determine which of their fund sources are best suited to the EB-5 program. In addition to facilitating the source-of-funds requirement, working with an EB-5 immigration expert can also help an investor compile a comprehensive I-526 petition that includes all the required information and documentation, reducing the likelihood of receiving a request for evidence (RFE) or notice of intent to deny (NOID). Collaborating with an EB-5 immigration attorney can put EB-5 investors that much closer to their dream of a life of freedom in the United States.