The E-2 Treaty Investor Visa, commonly known as the E2 visa, is a non-immigrant visa for citizens of countries that have a commerce and navigation treaty with the United States. Individuals who invest significantly in a U.S. enterprise are entitled to live and work in the U.S., with the option for unlimited visa renewals.

While the E2 visa comes with its set of advantages, it also has certain limitations. It does not automatically grant permanent residency or a Green Card. E2 visa holders are expected to have the intention to leave the U.S. when their visa expires.

However, transitioning from an E-2 visa to a Green Card is possible. In this article, we will explore how transitioning from an E2 visa to a Green Card can allow foreign nationals to access benefits not available with the E2 visa.

Advantages of Transitioning from an E-2 Visa to a Green Card

U.S. permanent residence (Green Card) enables the holder to live and work freely across the United States, offering many rights similar to those of a U.S. citizen. After five years of holding permanent residency, it also paves the way for U.S. citizenship. Transitioning from an E2 visa to a Green Card brings numerous advantages, including:

• The possibility to sponsor relatives for Green Cards.
• Easier travel in and out of the U.S.
• Eligibility for social security benefits.
• Broader employment opportunities.

It’s important to note that E2 visa holders face employment limitations, being allowed to work only within their own investment businesses. With a Green Card, these limitations are lifted, offering greater freedom.

Green Card holders are also free from the requirement to intend to leave the U.S. and their status is not dependent on the success or existence of a particular business. So a Green Card offers a more stable and long-term solution for those looking to make the United States their permanent home.

Steps of Converting Your E-2 Visa into a Green Card

There are several ways to convert an E2 visa into a Green Card. These include increasing the investment amount to qualify for an EB-5 visa, securing sponsorship from a family member or employer, or applying for a National Interest Waiver.

Foreign nationals are advised to seek guidance from an immigration lawyer during this process to ensure a smooth transition to Green Card status.

Increasing Your Investment

A key benefit of the E2 visa is that there’s no set minimum for the investment required. However, it’s generally advised to invest at least $100,000 to ensure the investment is deemed substantial by the United States Citizenship and Immigration Services (USCIS). E2 visa holders can pave the way to permanent residence by increasing their investment, thereby meeting the criteria for an EB-5 Green Card.

The EB-5 program provides a straightforward path for foreign nationals to secure a U.S. Green Card. E2 visa holders looking to transition via the EB-5 route need to familiarize themselves with its specific investment demands.

To qualify under the EB-5 program, investors are required to generate at least 10 full-time jobs and invest a minimum of $800,000 in a new commercial enterprise. This means E-2 investors must increase their investment until it totals at least $800,000 to comply with EB-5 requirements.

Investing in a Regional Center Project

E2 visa holders have the flexibility to invest in an EB-5 regional center project instead of directly into a business, while still maintaining their E2 operations. Regional center projects are often organized as limited partnerships, where the investors take on roles as limited partners. These projects commonly pool funds from multiple EB-5 investors, simplifying the process of meeting the job creation criteria.

The requirement for these regional center investments includes the generation of at least 10 jobs for U.S. workers. Unlike direct investments, this total can include not only direct but also indirect and induced jobs, which are determined through economic models. This approach makes it much easier to meet the job creation requirement.

Sponsorship by an Employer or Family Member

E2 visa holders may also secure a path to a lawful permanent residency through employment if a U.S.-based employer extends a job offer to them. This requires the employer to demonstrate the absence of suitable U.S. workers to fill the role, and treaty investors would need to change their status before accepting a job offer.

In another scenario, E2 investors have the option of obtaining a family-based Green Card through sponsorship by an immediate family member. This includes spouses, parents, and children of either U.S. citizens or current Green Card holders.

Securing a National Interest Waiver

Investors with exceptional skills who seek lawful permanent residency may explore the option of the EB-2 National Interest Waiver. This waiver eliminates the need for employer sponsorship and labor certification by arguing that the investor’s exceptional talents will significantly benefit the U.S. economy. An approved National Interest Waiver allows investors to secure a Green Card independently.

To be eligible for a Green Card through the National Interest Waiver, applicants must:

• Show that their business venture is of significant merit and national importance;
• Have the necessary skills for the success of the business;
• Explain the advantages to the United States of waiving the usual EB-2 immigrant visa requirements, including the absence of need for family or employer sponsorship. The National Interest Waiver is specifically available to individuals with extraordinary abilities or advanced degrees in areas like science, arts, and business.

Timeline for Converting an E-2 Visa to a Green Card

Depending on the chosen pathway, converting an E-2 visa can take several years.

One of the most popular options, the EB5 visa route, entails a few different stages. Initially, applicants must file an I-526 petition, and upon approval, they are eligible to obtain a conditional Green Card that is valid for two years. The I-526 petition’s processing time can depend on several factors, including the type and location of the EB-5 investment, the complexity of the immigration case, and the applicant’s country of birth.

After the two-year conditional residency period, foreign nationals are required to submit Form I-829 to remove the conditions on their EB5 Green Card and obtain permanent residency status. This permanent EB-5 Green Card can be renewed every 10 years.

In the meantime, after five years of residency in the United States, EB-5 investors can apply for citizenship by naturalization. The two-year conditional residency period counts toward this, so the EB-5 visa offers a relatively fast track to U.S. citizenship.

The EB-5 Green Card application process demands detailed personal and financial documentation. This includes, but is not limited to, evidence of investment in a qualifying EB-5 project, documents tracing the source of the investment funds, tax records, scans of passports, certificates of birth and marriage, and many more.

How to Start the Transition Process

Opting for the EB-5 program might be the most straightforward and secure route to changing your E-2 status into permanent residency. Before starting this intricate process, it is important to get help from reliable industry leaders.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our 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’re interested in exploring your U.S. investment visa options in more detail, book a call with us today and our expert team will be happy to guide you through every step of the process.

Intercreditor agreements take place among two or more lending parties, typically involving a senior and a junior lender, to establish certain safeguards for the involved entities. Without such agreements, there could be legal complications among the parties.

EB-5 projects have access to various loan types, and the choice of financing impacts the specifics of the intercreditor agreement, which usually benefits the senior lender. This is why it’s crucial for junior lenders and borrowers to closely review the terms and conditions.

In this article, we explore the different loan options, the framework of intercreditor agreements, and the advantages and disadvantages of securing one for an EB-5 investment.

Types of EB-5 Financing

The EB-5 financing structure incorporates a special purpose vehicle (SPV) set up to receive funds from EB-5 investors and channel these funds as loans to the EB-5 project. This financing arrangement carries a risk of financial loss for both parties, making it essential for both to have sufficient resources or alternatives in the event of project failure, and for the loan conditions to be explicitly detailed in the offering documents.

Senior, subordinate, junior, and mezzanine loans represent the typical financing options available to an EB-5 borrower.

Senior Loans

Senior loans are backed by collateral, like real estate, and have priority over subordinate loans. This entity is the principal lienholder and is entitled to payments on senior debt.

Subordinate Loans

Subordinate loans are positioned after senior loans in terms of rights to assets, encompassing both junior and mezzanine loans. It is crucial for investors to fully understand the conditions of a subordination agreement.

Junior

A junior loan, like a senior loan, is a subordinate loan that is secured by collateral.

Mezzanine

A mezzanine loan is secured by a company equity pledge or assets by the borrower.

Considerations When Selecting a Loan

EB-5 borrowers must scrutinize the offering documents, especially when the SPV is a regional center or a company with several affiliates involved. Key points to consider include:

• What’s the loan amount, and is there flexibility to increase it through an accordion option?
• What are the defined minimum and maximum loan amounts, and under what conditions can these change?
• When will interest start to accumulate, and when are payments due? Is the interest calculated on a simple or compound basis?
• What are the terms for the repayment of the loan?
• What fees are associated with the loan, are they justified, and to whom are they payable?
• Are there any loan terms that restrict fund distribution?
• What guarantees and assurances are provided in the agreement?
• What purpose do affirmative or negative covenants serve in the agreement?
• Is collateral securing the loan, what form does it take, and what is its value?
• Does the lender hold a primary or secondary position in the case of repayment?
• Is the project’s equity substantial enough to cover both senior and junior debts in a foreclosure scenario, emphasizing the importance of a robust capital structure for the EB-5 project?
• What are the consequences of a borrower’s default, including potential interest rate hikes or immediate loan repayment demands?
• Is there a guarantor for the loan, and are they financially capable of fulfilling their obligations if needed?
• How affiliated are the parties involved, and are they reliable?

The Basics of EB-5 Intercreditor Agreements

An EB-5 intercreditor agreement outlines specific conditions between a senior and junior lender, clarifying their mutual relationship and their connection with the EB-5 investor obtaining the loan. Sometimes, intercreditor agreements may also occur between two senior lenders, which can significantly affect EB 5 investors.

For the subordinate lienholder, it’s critical to act swiftly on their rights to mitigate the threat of substantial financial loss due to defaults or bankruptcy, as well as to avert potential immigration issues for the borrower. If the junior lender defaults, it could jeopardize the EB-5 investors’ eligibility for U.S. visas.

Advantages and Disadvantages

There are potential advantages and disadvantages of an intercreditor agreement for a subordinate lienholder to consider. Keep in mind that these may not all be applicable, as each intercreditor agreement is different. This is why it is essential to understand the complete range of terms.

Benefits of an Intercreditor Agreement

The junior lender might benefit from:

• Receiving notice of default.
• Having the chance to remedy a default and assume control of the project.
• The option to enforce a mezzanine pledge.
• Lowering loan expenses owing to the senior lender’s use of administrative infrastructure, which provides updates on project progress and loan disbursements without requiring additional resources.

Drawbacks of an Intercreditor Agreement

The subordinate lienholder could face the loss of:

• The ability to receive principal or interest payments.
• The power to sanction a plan of action during bankruptcy proceedings.
• The right to seize collateral through foreclosure.
• The privilege to seek remedies from guarantors shared with the senior lender.
• The capacity to amend the terms of the subordinate loan agreement.

The Importance of Intercreditor Agreements

The intercreditor agreement aims to protect the interests of all parties involved, ensuring that lenders can repay EB-5 investors in case the project runs into financial issues.

However, it’s common for intercreditor agreements to primarily benefit senior lenders, who often have priority over collateral and decisions in default situations. Therefore, entering into an intercreditor agreement might not always serve the best interest of a junior lender unless they, or the borrower, have significant negotiating power to secure favorable terms.

Such negotiating power for an EB-5 lender could come from having the financial capability to independently complete the EB-5 project without the senior lender’s involvement, or when their loan contribution is critical to the project’s success.

Borrowers who have a positive track record with their senior lender, or the flexibility to switch lenders easily, also hold valuable leverage that can lead to a more advantageous agreement.

Crucial Aspects of EB-5 Intercreditor Negotiation

Without enough bargaining power, it might be better to go without an intercreditor agreement unless required by the senior lender, as such agreements can potentially increase the risk for investors. While reviewing the offering memorandum, both the junior lender and borrower should assess various aspects to decide on their course of action.

The junior lender ideally needs:

• The capacity to foreclose on the subordinate collateral.
• The power to put a temporary halt on the senior lienholder’s foreclosure actions.
• The privilege to be paid back the owed amount.
• The option to intervene and complete the project if there is default.
• The opportunity to acquire the senior debt during a default scenario.
• Adequate financial resources to assume control of the project in the event of the borrower’s failure, or a partnership with a capable entity.
• Proven experience in finalizing projects of a similar nature, or access to necessary resources.

While these criteria may not always be fully satisfied in the offering memorandum, if many of them are, it will be more advantageous for both the borrower and the junior lender.

Navigating EB-5 Intercreditor Agreements

Intercreditor agreements play a vital role for EB-5 investors and lenders, as they outline the specific terms of the EB-5 loan and protect the rights of the junior lender. However, it’s important to note that not all intercreditor agreements provide equal protection, and some may even harm the rights of the junior lender. This is why EB5 investors should carefully review the offering documents and seek help from qualified industry professionals.

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.

For detailed insights into how intercreditor agreements work with EB-5 investments, book a call with our EB-5 team today.

The E-2 treaty visa is designed for foreign nationals who wish to live and work in the United States by investing in a U.S. business. This visa allows entrepreneurs to make a meaningful economic impact through investment, granting them E-2 visa status in return.

While E-2 is not an immigrant visa, which means it does not provide investors with a direct pathway to a U.S. Green Card or citizenship, it can offer a viable non-immigrant alternative to individuals who would like to set up a business in the United States.

In this article, we will take a closer look at the E-2 visa for foreign investors, while providing detailed insight into the investment requirements.

E-2 Visa at a Glance

One of the key advantages of the E-2 visa is its lack of a fixed minimum investment requirement, setting it apart from other investment-based visas that demand high initial investment amounts. This flexibility makes the E-2 visa an accessible and appealing option for many. The U.S. Citizenship and Immigration Services (USCIS) requires the investment to be “substantial,” which is measured relative to the total value of the business.

To qualify as substantial, the investment must be able to:

• Acquire an existing business or start a new one;
• Demonstrate the investor’s serious financial commitment to the business;
• Ensure the investor’s ability to effectively manage and grow the business.

Although there is no specific minimum investment amount for the E-2 visa, immigration experts often advise not to invest less than $100,000. The rationale is that a larger investment can more convincingly show the investor’s commitment to the business, potentially simplifying the application process.

Investors are required to demonstrate that their E 2 investment is substantial and committed to a legitimate enterprise, putting them at financial risk if the business fails. To meet this requirement, investors can present a variety of evidence, including:

• Copies of money orders and checks;
• Relevant personal and business bank account statements;
• Detailed lists of goods and materials purchased with accompanying financial records for the investment;
• Lease agreements;
• Initial agreements such as term sheets, letters of intent, or memorandums of understanding;
• Bills of sale;
• Escrow agreement documents;
• Documentation of loans and mortgages;
• Tables showing how the business is capitalized;
• Analyses assessing the value of the business’s assets;
• Agreements for purchasing;
• Studies valuing company shares;
• Agreements for buying shares, along with records of meetings, stock ledgers, certificates, and proof of payment for shares.

To be eligible for the E2 treaty visa, an investor must hold citizenship in a country that has a treaty of commerce and navigation with the United States. The list of these E-2 treaty countries includes over 70 nations.

Once granted, the E-2 visa permits a stay of two years, which can be extended in two-year increments indefinitely, as long as the investor maintains the intention to leave the U.S. once the visa expires or is terminated.

There are no specific educational requirements for the E2 visa. However, since the treaty investor will have a significant role in managing and operating the business, they need to prove their ability to do so effectively. The investor’s skills and experience should be directly applicable to the business venture, ensuring they can execute their business strategy successfully.

Engagement in Management Activities

How much a treaty investor needs to be involved in the management of the business depends on how the investment is structured. However, the E-2 program requires treaty investors to be actively involved in business operations.

Every treaty investor must show they plan to play a hands-on role in the management and operation of the E 2 business soon after arriving in the United States. If they don’t, their investment might be seen as passive.

Filing an E-2 Visa Application

Investors Living in the U.S.

E 2 visa applicants located in the United States on a valid nonimmigrant status are required to file Form I-129 along with identification documents and proof of legal status to the USCIS. Additionally, Form I-539 is necessary for each of the investor’s dependents (namely, their spouse and any children under the age of 21) involved in the application.

Those applying from inside the United States can opt for premium processing for an additional fee, which shortens the processing time to roughly 15 days. Without premium processing, the standard timeline for processing an E-2 visa application spans several months, depending on each case.

Investors Applying From Abroad

E-2 visa applicants from outside the United States must apply through the U.S. consulate or embassy in their home country. The process and requirements for E-2 visa applications can significantly differ from one consulate to another, with some requiring applications to be mailed in, others accepting submissions via email, and more variations. Applicants are advised to consult the website of the relevant consulate to understand the specific instructions before beginning their application.

All applicants are required to complete Form DS-160, and most consulates also ask for Form DS-156E.

After the consulate reviews the submitted application and documents, applicants will be invited to schedule an interview. A successful interview leads to the issuance of an E-2 visa.

Application Fees for an E-2 Visa

As mentioned above, when applying from within the U.S., principal investors must file Form I-129, and their dependents need to submit Form I-539. As of March 2024, the filing fees for these forms are $460 for Form I-129 and $370 for Form I-539. With the USCIS price increase in filing fees, these will increase on April 1, 2024, to $1,015 and $420, respectively.

For those applying from outside the U.S., Form DS-160 must be completed by each applicant, with the filing fee typically around $200, although this can vary across different consulates.

While the submission of Form DS-539E is required by many consulates, it does not come with a filing fee. A nominal fee is also charged upon the issuance of the visa to the investor, which differs from consulate to consulate. It’s common for investors to retain an immigration lawyer while preparing these applications.

Throughout the E-2 visa application process, applicants may encounter various other expenses, including fees for legal services and business plan, biometrics, and business setup costs.

Key Info to Keep in Mind

• The choice of business venture to invest in is left to the investor, as long as it meets the E-2 criteria. While investors have the liberty to select from a broad range of businesses, the E2 enterprise must not be marginal. In other words, it should generate sufficient income to sustain the investor and their family, while also making a meaningful contribution to the U.S. economy.
• Even though the minimum investment requirement for the E-2 visa is relatively low, there’s still the risk of losing time and money if the venture doesn’t succeed.
• Seeking a specialized immigration attorney’s help can offer significant advantages to E-2 investors. The success of an E 2 visa application heavily relies on the performance of the business, which makes strategic planning very important.
• E-2 investors are expected to submit a detailed business plan with their application. This plan should outline the investment’s purpose, confirm its adequacy for making the business operational, and demonstrate its potential to achieve growth targets. The business plan must comply with specific E-2 guidelines. A well-constructed business plan increases the chances of application approval and minimizes the risk of receiving a request for evidence (RFE) or denial. Consulting firms can assist investors in developing a comprehensive business plan.
• Dependents of the investor, regardless of their nationality, typically receive the same duration of stay as the treaty investor, with the option to extend their stay as needed. Children of the investor are permitted to study in the U.S., and spouses are eligible to seek employment authorization, allowing them to work outside of the E-2 business, unlike the primary investor.
• The E-2 visa does not cap the number of times a treaty investor can renew their stay permit, offering the freedom to travel internationally without restrictions on the duration spent outside the U.S. However, E-2 visa holders should carefully monitor their visa status during travel to avoid complications that might occur if the visa expires while they are outside the United States.

How to Start the E-2 Visa Process

The E-2 visa is known for its flexible investment threshold and provides a cost-effective path to the United States, with many investors opting for an investment near the $100,000 mark.

With the help of experienced industry professionals, the E-2 visa can also serve as a step toward obtaining the EB-5 visa, which offers a direct pathway to permanent residency with a subsequent opportunity to apply for U.S. citizenship.

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 would like to learn more about the E-2 visa, please book a call with our team, who can assist you in successfully obtaining an investment visa in the United States.

Foreign nationals looking to live in the U.S. have several visa paths available, investment visas being one of them. Under U.S. investment visa categories, two popular options are the E-2 treaty investor visa and the EB-5 immigrant investor program.

This article will explore these two visa options, delving into their similarities, differences, and requirements.

Eligibility Criteria for an E-2 Visa

The main factor that determines E-2 visa eligibility is the applicant’s nationality. Treaty investors must be citizens of an E-2 treaty country. This includes any form of legally obtained citizenship, including naturalization.

Currently, the United States holds E-2 treaties with more than 70 countries.

Key Requirements

Candidates for the E2 visa are required to invest in a U.S. business and plan to leave the U.S. upon visa expiration. However, the E2 visa can be renewed, allowing treaty investors to remain in the U.S. well beyond the initial two-year term, despite the requirement to eventually leave.

Unlike other investment visas that specify a minimum investment amount, the E2 visa does not have a fixed minimum investment requirement. Instead, E-2 treaty investors must make a significant investment that is enough to buy or establish a business, demonstrating a serious financial commitment to managing and growing the business.

The business in question must be a legitimate, for-profit enterprise engaged in entrepreneurial activities.

A core purpose of the E-2 visa is to create jobs for American workers, which means that the business must be able to generate substantial income to support the investor and their family, as well as contribute positively to the American economy.

While no exact minimum investment amount is required, industry experts often suggest an investment of no less than $100,000 to ensure a viable application, as smaller investments may not be deemed significant enough to qualify.

A larger investment amount typically strengthens the investor’s case by showing their financial commitment to the business.

The investment must meet the “at risk” criteria for the E2 visa, meaning it must be fully committed to the business without guarantees of return.

This commitment is evidenced by funds already spent or in the process of being spent at the time of the E2 visa application.

Typically, an E-2 treaty investor should hold a minimum of 50% ownership in the business, hold an executive position, or have a role that provides control and operational oversight.

Pros and Cons

• The E2 visa grants an initial stay of two years, with the possibility of indefinite renewal in two-year intervals. There’s no cap on the number of renewals an E-2 visa holder can obtain, as long as the business continues to operate and meet the criteria of the E2 program.
• E-2 visa holders enjoy the liberty to travel in and out of the U.S. without any limitations, and there’s no restriction on the duration of travel. However, it is important to be aware of the visa’s validity, as complications may arise if the visa expires while the investor is outside the U.S.
• The E2 visa is known for relatively faster processing times, although the exact timeline can vary depending on the details of each case.
• Employment for E-2 visa holders is confined to the business in which they have invested.
• Prospective investors must note that the E-2 visa is a non-immigrant visa, which means it does not offer a direct pathway to a U.S. Green Card or citizenship.

E-2 Visa Eligibility for Family Members

The E2 visa also extends eligibility to the dependent family members of the investor, which includes their spouse and unmarried children under 21 years of age.

If these dependents receive E-2 approval, they are granted the same duration of stay as the primary treaty investor. The nationality of dependents does not have to match that of the main applicant.

Spouses are eligible to apply for a work permit, while children under 21 can pursue education in the U.S.

However, dependency under the E2 visa has its limitations; children will lose their dependent status upon reaching the age of 21, making them ineligible to remain on their parent’s visa as dependents.

Ideal Business Ventures for E-2 Investors

An E-2 treaty investor has the flexibility to invest in various business types, depending on the investor’s personal interests, as long as the business complies with E2 criteria and all relevant regulations. Popular choices among investors include multinational companies, franchise operations, restaurants, and consultancy firms.

How to File an E-2 Visa Application

For a successful E-2 treaty investor visa application, investors need to fulfill all eligibility criteria and carefully navigate the application process.

Applicants must file several documents for the E2 visa, including Form DS-160, the Online Nonimmigrant Visa Application, and Form DS-156E, the Nonimmigrant Treaty Trader/Investor Visa Application.

The necessary documents for an E2 visa application also include a current passport, evidence of business premises through a lease or purchase agreement, state business registration or a sales license, and a federal employer identification number. Financial statements, acquisition contracts, valuation of assets, and proof of payments are critical for demonstrating the establishment of the business.

Moreover, the source of investment capital must be documented, with items like loan documents and receipts from the sale of assets.

Where relevant, additional details on business operations should be provided, including but not limited to customer contracts, share certificates, escrow fund evidence, partnership agreements, billing documents, and financial records.

A critical component of the E2 visa application is a detailed business plan, further discussed below.

E-2 Visa Business Plan

A comprehensive business plan must be included in an E2 visa application. This plan should outline future projections and the deployment of investment towards the success of the business. Essential components of this plan include financial, operational, staffing, and marketing strategies, alongside the applicant’s qualifications and background.

The business plan must present a profit and loss forecast for the upcoming five years, demonstrating that the investment will fulfill growth expectations and generate employment throughout the visa’s validity.

The plan needs to be realistic and achievable. Investors seeking to extend their E2 visa must show evidence of realized business objectives, as detailed in the initial plan.

While there is no minimum amount of investment required, the invested capital must be significant relative to the total business cost. It falls upon the investor to justify that the investment is substantial when the business and its demands are considered.

To support their claim, a treaty investor might present various documents such as business bank statements, income proofs, loan agreements, and receipts of business expenditures, demonstrating the assets at risk.

The E2 visa supports various business models, requiring investors to outline a clear plan for how their business will operate. Since E2 visa holders will be managing and growing a business, having a well-defined management structure is crucial.

The business plan must also prove the investor’s capacity to employ U.S. workers, detailing the number and nature of the positions to be created.

Furthermore, a marketing strategy should be set up within the business plan to explain the economic benefits of the investor’s funding to the U.S. economy. The inclusion of U.S. contacts or signed letters of intent can help with this.

E-2 applicants are required to show that their expertise and experience directly align with the business venture. Those with exceptional skills may also explore the O-1 visa as an option, although it offers a significantly different immigration pathway.

Why Professional Advice is Crucial for E-2 Visa Applicants

Securing an E2 visa may require a lower investment amount compared to other investment options, but applicants face the potential loss of both time and resources if their E2 visa application is incomplete, incorrect, or fails to meet the necessary criteria.

This is why collaborating with an immigration lawyer can greatly improve the chances of meeting all E2 visa requirements. Experienced immigration attorneys are also well-positioned to connect the treaty investor with other experts within the industry as needed.

The Differences Between E-2 and EB-5 Visas

The EB-5 visa, like the E2 visa, is an investor visa, granting foreign nationals the opportunity to live and work in the U.S. by making a significant investment in a new commercial enterprise (NCE). Yet, there are significant differences between these two types of visas.

Unlike the E2 visa, the EB-5 visa specifies minimum investment thresholds. For investments in a targeted employment area (TEA), the minimum is set at $800,000, while investments outside these areas require at least $1,050,000.

The EB-5 visa offers a pathway to conditional permanent residency in the U.S. for a period of two years, granting the right to live and work anywhere within the country. This can lead to obtaining a permanent Green Card. While the E2 visa permits holders to temporarily live in the U.S., it restricts employment to the business involved in the investment.

A crucial distinction to note is that the E2 visa falls under the non-immigrant category and does not offer a direct route to permanent residency. Although it can be renewed indefinitely as long as the holder meets the visa requirements, it doesn’t promise a permanent stay or eventual citizenship.

EB-5 visa holders, on the other hand, can transition from conditional to permanent residency after two years, obtaining the freedom to live and work anywhere in the U.S., no matter where the NCE is located.

Moreover, after five years of residing in the U.S. through the EB-5 program, individuals become eligible to apply for U.S. citizenship. Their two years of conditional residency in the U.S. can count towards this residence requirement, which makes the U.S. naturalization process even shorter for EB-5 investors.

How to Select the Best Option

Due to the differences between EB-5 and E-2 visas, investors are advised to conduct thorough research to determine which option aligns best with their goals and preferences.

Seeking assistance from experienced industry professionals during the due diligence and application stages can be advantageous for prospective investors.

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’re interested in learning more about the E-2 and EB-5 visa options, book a call with us today to discuss the specifics of your immigration plans.

Finding an experienced and knowledgeable immigration attorney is one of the most crucial decisions an investor can make to streamline the EB-5 process.

The Importance of Hiring a Qualified EB-5 Attorney

There are many decisions that individuals must make when applying for a United States Green Card through the EB-5 Immigrant Investor Program, but perhaps none is as important as choosing the right EB-5 attorney. A lawyer with experience and expertise in the EB-5 visa application process can help applicants better understand the several complex requirements of the EB-5 program. Failure to submit paperwork in a timely manner or neglecting certain details on one of the many necessary forms could lead to significant delays in the processing of an EB-5 application. As such, finding a competent, knowledgeable, and attentive EB-5 lawyer is essential for effectively navigating the process.

The Crucial Role of an EB-5 Lawyer in the Visa Application Process

Given the complexity of the EB-5 process, hiring an experienced immigration attorney is crucial. An experienced immigration attorney should have a comprehensive understanding of the intricacies of the EB-5 program, especially given the changes brought on by the enactment of the EB-5 Reform and Integrity Act (RIA) in 2022. From the initial step of filing a Form I-526E to the final step of filing a Form I-829, an EB-5 lawyer is crucial for guiding investors through the entire process of obtaining U.S. permanent residency.

A qualified EB-5 lawyer will effectively act on the behalf of investors every step of the way. This includes a wide variety of functions, including ensuring accurate completion of every form, coordinating necessary submissions to United States Citizenship and Immigration Services (USCIS) and other government agencies, helping to prepare the investor’s source of funds (SOF) documentation, keeping the investor updated on the status of the new commercial enterprise in which they invested, preparing investors for their embassy interview, and much more.

The entire EB-5 application process can take several years, and incomplete forms or missed deadlines can further delay the process, costing investors time and money. In worst-case scenarios, mistakes can even lead to outright rejection of an EB-5 investor’s application. A qualified EB-5 attorney will have expertise in immigration law – as well as knowledge of what makes for a sound EB-5 investment – that will help prospective immigrants make the most informed decisions throughout the entire process.

How to Ensure an EB-5 Attorney Has a Track Record of Successfully Filing I-526E and I-829 Petitions

It’s important that every EB-5 investor does their own due diligence throughout the process, and choosing an EB-5 lawyer is no exception. Attorneys with a proven track record of success are always the safest options. In order to identify an EB-5 lawyer who has successfully navigated the process many times before, prospective immigrants should ask a series of questions to make an informed decision on which attorney to hire.

Before making a hiring decision, every EB-5 investor should ask prospective immigration lawyers how many successful Form I-526Es and Form I-829s they have filed, as well as their approval rates on these petitions.

Form I-526 – or, far more likely, Form I-526E, for prospective immigrants who invest through the USCIS-approved regional center program – is the very first form in the EB-5 process. The form grants the investor and their eligible dependents conditional United States Green Cards, and is submitted once they have selected a project in which to invest. The I-526E petition asks for personal information from the investor, specific documentation about the project, proof that the required minimum investment has been made, and information about the source of their investment funds.

Three months before the conditional Green Card expires, EB-5 investors are required to submit an I-829 petition, which proves that they have successfully met all USCIS requirements, thereby allowing them to live in the United States permanently.

Forms I-526E and I-829 are, in a sense, the first and last steps in the EB-5 process, respectively. Every qualified EB-5 attorney will have filed both forms countless times, and will be able to provide their approval rates. The more times an immigration lawyer has navigated the process from beginning to end, and the higher rate of success they have attained, the more confidence a prospective EB-5 investor can have in the approval of their own application.

How to Find an EB-5 Lawyer with Experience Demonstrating Lawful Source of Funds

Every EB-5 investor needs to clearly lay out the source of funds (SOF) for their investment in their I-526E petition, whether in the form of bank statements, stock or real estate transfer documents, proof of inheritance or gifts, or various other forms of documentation. USCIS requires detailed evidence that an investor’s funds were legally sourced, which often requires that investors provide a lengthy history of transactions. Insufficient proof that every transaction in that chain was lawful can result in application delays or rejections.

Regardless of the source of the investor’s funds, and especially in instances of mixed sources of funds, an experienced EB-5 lawyer will have a clear strategy for compiling all of the necessary documentation. Failure to provide the level of detail required by USCIS is among the most common stumbling blocks in the entire process, so the most competent EB-5 lawyers will have a thorough plan for compiling the information needed.

How to Identify an EB-5 Attorney with the Right Experience for an Investor’s Unique Circumstances

Every EB-5 application is unique, so every investor should look for an EB-5 lawyer with experience and knowledge that fits their circumstances. The documentation required by USCIS may be in a different format than what is easily attainable by an applicant, depending on their home country. As a result, finding an EB-5 attorney with experience processing a significant number of applications from an individual’s home country is imperative.

In addition, every competent EB-5 attorney should be able to provide a list of prior clients, ideally from the applicant’s country, who can provide testimonials about their experience. The quantity and quality of these testimonials, as well as how similar they are to the applicant’s own circumstances, can go a long way in providing assurance that a particular EB-5 attorney has the experience to successfully guide an investor through the process.

Prospective EB-5 investors should always do their own due diligence before hiring an EB-5 attorney to help lead them through the process. For 10 years, EB5AN has worked with several excellent EB-5 attorneys, and is committed to helping investors identify the lawyer with the right experience for their unique circumstances. To request a list of EB-5 lawyers that we are proud to endorse, please contact us here, or reach us via phone, text, or WhatsApp at +1 (561) 386-5356.

Established in 1990, the EB-5 Immigrant Investor Program aims to stimulate economic development in the United States. By investing in a qualifying New Commercial Enterprise (NCE), EB-5 investors, along with their dependent family members, become eligible for an EB5 Green Card.

Participants in this program obtain lawful permanent residency in the U.S., with the opportunity to seek U.S. citizenship afterward.

However, interested individuals should first do some research into whether they qualify for a Green Card through investment. The EB-5 program eligibility depends on several factors, and understanding these factors can greatly benefit EB-5 investors throughout their application process.

In this article, we will explore the requirements to get a U.S. Green Card, specifically through the EB-5 Immigrant Investor Program.

EB-5 Green Card Eligibility

The two key criteria for EB5 eligibility are the minimum capital investment and participation in the New Commercial Enterprise (NCE) management. The necessary investment amount varies depending on the EB-5 project; an NCE located within a Targeted Employment Area (TEA) requires a lower investment amount than in areas outside of TEAs.

The source of the invested capital is not restricted, but it must be lawfully acquired, which is demonstrated through the EB-5 source of funds process. Additionally, the investor’s level of involvement in the NCE can differ based on the NCE’s organizational structure.

For all EB 5 requirements, sufficient evidence must be presented to the United States Citizenship and Immigration Services (USCIS), which operates under the Department of Homeland Security, to prove compliance with these conditions.

EB5 immigrant investors are not required to have prior business experience or training. There are also no education or nationality limitations.

EB-5 Investment and Job Creation Types

Prospective EB-5 investors have the option of selecting either direct or indirect (Regional Center) investment approaches. Regardless of this choice, all successful investments yield the same ultimate benefit: U.S. permanent residency. However, the choice of investment type can make a difference in the simplicity, ease, and feasibility of the EB-5 process. Investors need to fully grasp both alternatives before deciding.

EB-5 Job Creation

The primary difference between direct and Regional Center investments lies in job creation, so it’s important to understand this requirement before deciding on the investment type. Every EB-5 project must generate at least 10 jobs per investor. Depending on the investment route, these can be counted across three different employment types: direct, indirect, and induced jobs.

Direct Jobs

Direct jobs are created directly by the NCE, such as positions in construction or operations. Only full-time jobs can be counted towards this requirement. While part-time roles do not qualify, job-sharing arrangements may be acceptable.

Indirect and Induced Jobs

Indirect jobs stem from the investment’s economic influence on the local area, such as when the business’s purchases of materials and services create new jobs.

Induced jobs occur when employees spend their earnings locally, further stimulating the economy.

Direct EB-5 Investments

Only a minority of EB5 investors opt for direct investments, as this model only allows for direct jobs to be counted towards the job creation requirement. However, some investors who seek greater control over the day-to-day management of their EB-5 business favor this option.

EB-5 Regional Center Investments

The majority of EB-5 investors prefer the indirect investment route via a USCIS-designated EB-5 Regional Center, offering a more passive investment approach. This method allows for the inclusion of direct, indirect, and induced jobs in the job creation count, which makes it easier for investors to fulfill the EB-5 requirements.

How Much Does an EB-5 Green Card Cost?

Introduced in 1990, the EB-5 program initially required a capital investment of $1,000,000, with a reduced threshold of $500,000 for investments in Targeted Employment Areas (TEAs).

In 1992, the establishment of the EB-5 Regional Center Program offered an alternate pathway for investment. These investment minimums stayed the same until 2019, when the EB-5 Modernization Rule was enacted, raising the minimum investment to $1,800,000 for standard areas and $900,000 for TEAs.

In 2022, with the introduction of new legislation, the minimum investment amount for the EB-5 visa was reduced. The current minimum investment requirements are $1,050,000 for non-TEA projects and $800,000 for TEA projects, with public infrastructure projects also qualifying for the lower investment threshold.

TEAs are defined as areas in need of economic revitalization and job creation. Investing in a TEA costs less than in non-TEA areas, which helps regions in need of economic development attract more capital from foreign investors.

TEAs are categorized into rural TEAs and High Unemployment Areas. A rural TEA must have a population under 20,000, not be located next to a city with a population over 20,000, and lie outside a Metropolitan Statistical Area (MSA). High Unemployment Areas are characterized by unemployment rates of at least 150% above the national average.

How Long Should EB-5 Investors Keep Capital Invested?

The EB-5 timeline varies for each investor, but in some cases, the process can span several years. EB5 investors need to keep their investment committed to the business until project completion. Additionally, the investment must be “at risk,” meaning that the return of capital is not guaranteed.

Depending on whether the investor is already in the U.S. or not, they are eligible to apply for a two-year EB-5 Green Card following the approval of their I-526 or I-526E forms, or petition to adjust status at the same time as the I-526 filing depending on visa availability.

Investors are required to submit Form I-829 within the final 90 days of their two-year conditional residency. This form is used to demonstrate to USCIS that the EB-5 project has followed its business plan and fulfilled all requirements, especially in terms of job creation. Once approved, the investor receives a permanent Green Card, which can be renewed indefinitely.

How Many EB-5 Visas Are Available Each Year?

U.S. immigration processes are based on a quota system, limiting the number of visas available to foreign nationals annually. This system applies to the EB-5 Immigrant Investor Program as well, with the U.S. Department of State (DOS) determining the EB-5 visa allocation each fiscal year.

With the enactment of the EB-5 Reform and Integrity Act, the allocation rules were revised. Currently, 32% of the yearly EB-5 quota is set aside for TEA investments and infrastructure projects—20% for rural TEAs; 10% for high-unemployment TEAs; and 2% for infrastructure projects.

If any of these designated visas remain unclaimed by the fiscal year’s end, they carry over to the next year within the same categories.

Additionally, each country is limited to receiving no more than 7% of the total annual EB-5 visas. Countries with high demand often surpass the allocated number, leading to a backlog known as visa retrogression.

The new visa set-aside provision offers a significant advantage for EB-5 investors from backlogged countries, allowing them to bypass the waitlist and secure their EB-5 visas more quickly. As of March 2024, individuals born in Mainland China and India are facing backlogs in the unreserved categories, while set-aside categories are current for all EB-5 investors.

What Does the Visa Bulletin Mean?

During an EB-5 visa retrogression, the Department of State implements cut-off dates for applicants from the affected country to manage how they can proceed with their EB5 applications. These cut-off dates have two categories: final action dates and dates for filing.

Final action dates show the date when investors are eligible to receive an EB-5 Green Card. On the other hand, dates for filing indicate when investors can submit their applications to the National Visa Center for adjustment of status. The investor’s priority date is what determines how these dates affect them. Priority date is the day the USCIS receives an investor’s I-526 petition.

The Visa Bulletin, published monthly by the DOS, provides the cut-off dates for each country. If an investor’s priority date is earlier than the cut-off date listed on the latest Visa Bulletin, these limitations don’t apply to them and they can proceed with their EB5 immigration process. However, those with priority dates that come after the cut-off date must wait until a visa becomes available.

In the past, these backlogs meant long wait times for EB-5 investors from certain countries, like China and India. Today, with the new visa set-asides, foreign nationals can enjoy faster processing times regardless of their nationality.

By investing in one of the set-aside categories, investors can get their EB-5 Green Card faster than ever before.

How to Start the EB-5 Process

There are several decisions prospective EB-5 investors need to make before filing their I-526 petitions, like whether they want to invest directly or indirectly, which EB-5 project to invest in, how to structure their investment, etc. This is why it’s important for investors to work with the right EB-5 service providers and seek expert advice from immigration attorneys to avoid potential delays, denials, and loss of capital.

To discuss the case-specific details of how you can obtain a Green Card through investment, please schedule a call with our EB-5 team today.

The EB-5 visa, also known as the “employment-based fifth preference” visa, is a pathway to obtaining a U.S. Green Card through the EB-5 Immigrant Investor Program. This program offers one of the fastest routes to U.S. citizenship.

The EB-5 Immigrant Investor Program was established by Congress in 1990 with the primary goal of stimulating the U.S. economy through job creation and capital investment by foreign investors. Since its inception, the program has been operated by the United States Citizenship and Immigration Services (USCIS).

The United States boasts the world’s largest economy and is renowned for its political stability. Investing in an EB-5 project in the U.S. can be a lucrative opportunity, offering foreign nationals a source of consistent and reliable returns on their investments.

In this article, we will cover the topic of U.S. citizenship by naturalization, and how foreign nationals can apply for citizenship through the EB-5 immigrant investor visa.

The EB-5 Visa Pathway to U.S. Citizenship

Through a financial investment, foreign investors, along with their spouses and unmarried children under 21, can secure U.S. Green Cards, granting them lawful permanent residence. Notably, no employer or family visa sponsor is required for this program.

After maintaining permanent residence status for five years in the United States, foreign nationals become eligible to apply for U.S. citizenship. The two-year period of conditional residency in the U.S. also counts toward citizenship, which makes the process even faster.

The EB 5 program is accessible to foreign investors with a clean criminal record, and it does not require demonstrating “extraordinary ability,” having a permanent job offer, or specific work experience.

To qualify for the EB-5 visa, foreign nationals should be accredited investors with a net worth of at least $1,000,000 or an annual income of $200,000 for the last two years. Investors must also have the financial capacity to cover a substantial investment, USCIS filing fees, administrative expenses, and attorney fees.

It’s important to note that investment funds must be lawfully sourced, and both investors and their eligible family members must pass routine criminal, financial, and medical background checks to participate in the program.

In addition to serving as a pathway to both U.S. Green Cards and U.S. citizenship, an EB-5 investment can also prove to be highly profitable.

EB-5 Investment Criteria for Obtaining U.S. Citizenship

To qualify for a U.S. passport, a foreign national is first required to invest a minimum of $800,000 into a New Commercial Enterprise situated within a targeted employment area (TEA).

A targeted employment area represents a geographic region in the United States that is categorized as either rural or a high unemployment area.

The reduced minimum investment threshold for EB-5 projects located in TEAs is designed to foster investment in underserved communities. For EB-5 investment projects located outside of TEAs, the minimum required investment increases to $1,050,000.

It’s important to note that an EB5 investment must be channeled into a New Commercial Enterprise (NCE), and the investment must generate a minimum of 10 permanent full-time positions for U.S. workers. These positions must be maintained for two years.

The investment capital must remain “at risk” for at least two years, with no assurance of financial return during this period.

Moreover, all funds utilized throughout the EB5 process must have a lawful source. The source of funds requirement also applies to gifts or inheritance.

Step-by-step EB-5 Visa Application Process

Acquiring a Green Card through the EB-5 visa program can span a few months or several years, depending on the investor’s nationality, choice of EB-5 project, and various other factors.

The EB-5 process involves several essential steps. In summary, an investor must start by making the initial investment and subsequently demonstrate the creation and maintenance of permanent jobs.

It is crucial that the intended job creation is outlined in the initial immigration application through a detailed business plan. While removing conditions from the investor’s two-year conditional Green Card, the project must have followed the estimations in the business plan.

Initiating Your Investment

Investors have two main options for their investment approach. They can opt for a standalone or “direct investment,” where they invest independently in a business, or they can choose to invest through a USCIS-designated EB-5 regional center. EB-5 regional centers connect foreign investors with qualifying EB-5 projects available for investment.

It’s worth noting that standalone or direct investors are only allowed to count full-time workers who are directly employed by the new commercial enterprise towards meeting the minimum requirement of 10 permanent jobs. Regional center investors, on the other hand, have the flexibility to include indirect and induced jobs that result from business interactions with the NCE, such as those involving vendors or local businesses.

Additionally, an EB 5 investor must engage in the management of the NCE on some level. Direct investors are required to assume a more hands-on managerial role, while regional center investors can meet this requirement by serving as a limited partner.

Filing an Immigration Petition

Following their investment, foreign investors are required to submit an immigration petition to the United States Citizenship and Immigration Services (USCIS). This petition serves as evidence of their lawfully sourced qualifying investment and the job opportunities it has created.

For direct investors, the appropriate form to file is Form I-526, known as the Immigrant Petition by Standalone Investor. EB-5 regional center investors, on the other hand, should file Form I-526E, Immigrant Petition by Regional Center Investor.

The filing fee for either Form I-526 or I-526E is currently $3,675, but USCIS is raising this fee to $11,160 on April 1, 2024. It’s important to note that immigration attorney fees and any administrative costs will also apply.

The processing time for Form I-526E can vary based on factors such as demand and visa availability. EB-5 investors can check the official USCIS website for current processing times, although actual wait times often prove to be shorter than announced.

Obtaining Conditional Permanent Residence

EB-5 investors in the United States can file their Form I-485, Application to Register Permanent Residence or Adjust Status, at the same time as their I-526E petition. Investors who are already legally residing in the United States on a different visa, such as the H-1B, can enjoy the benefits of concurrent filing and apply for work and travel permits while their I-526E petitions are being processed.

Form I-485 currently has a filing fee of $1,140 for adults, with a reduced fee of $750 for children under 14 applying with a parent. An additional $85 biometrics services fee for fingerprinting is also mandatory, except for children under 14 or adults over 79, who are exempt from this fee. The USCIS fee hike of April 1, 2024, will increase the I-485 filing fee for adults to $1,440.

The processing times for I-485 petitions differ based on the field office or service center that processes them.

Investors residing outside the United States must follow the process of filing Form DS-260 to obtain their initial immigrant visa from their local U.S. embassy or consulate. They should file this form once they have received I-526E approval from USCIS.

Form DS-260 incurs a filing fee of $325, plus an Affidavit of Support fee of $120.

Upon the approval of their relevant petitions, EB-5 investors are granted a two-year conditional permanent resident status.

As a holder of a conditional Green Card, the investor, their spouse, and unmarried children under 21 have the liberty to live, work, and study anywhere within the United States.

Conditional permanent resident status is valid for two years, but it can be extended until the approval of Form I-829.

Progressing to Permanent Residence and U.S. Citizenship

During the final 90 days of an EB-5 investor’s two-year conditional permanent residency, it is important to start the process of removing conditions from their Green Card.

This involves the submission of Form I-829 to USCIS. The goal of this form is to provide sufficient evidence demonstrating that the investment fulfilled all the requirements of the EB-5 program. This includes the creation and maintenance of 10 permanent full-time jobs for U.S. workers, each lasting at least two years.

Form I-829 currently comes with a filing fee of $3,750, rising to $9,525 with the April price increase.

As of March 2024, USCIS announces the current estimated processing time for I-829 petitions as about five years. While this form is being processed, EB-5 investors can get extensions to remain in valid conditional permanent resident status.

Upon the approval of the I-829 petition, the investor, along with their spouse and unmarried children under the age of 21, will have the conditions lifted from their Green Cards. At this point, they obtain full permanent resident status in the United States.

After accumulating five years of permanent residence, which includes the initial conditional residence period, EB-5 Green Card holders become eligible to apply for U.S. citizenship. This can be achieved by submitting Form N-400, the Application for Naturalization, which can be conveniently filed online.

The Advantages of U.S. Citizenship

U.S. citizenship offers many advantages beyond lawful permanent resident status.

• U.S. citizenship provides a safeguard against deportation. Lawful permanent residents can face deportation in cases involving criminal convictions or certain activities, while U.S. citizens are protected from such deportations.
• U.S. citizens have the privilege to petition for the immigration of additional family members, including aging parents or married adult children. Lawful permanent residents are restricted to applying for their spouses and unmarried young children.
• U.S. citizens hold the right to vote in U.S. federal, state, and local elections.
• Numerous studies have demonstrated that U.S. citizens tend to enjoy a more prosperous financial status, with economic earnings exceeding those of noncitizens by 50% or more. Additionally, U.S. citizens are eligible to pursue U.S. government jobs, expanding their career opportunities.
• As for international travel, lawful permanent residents are limited to traveling outside of the United States for up to one year at a time, whereas U.S. citizens face no restrictions on their travel.

First Step to Citizenship by Investment in the United States

The EB-5 program is the only investor visa with a direct pathway to U.S. citizenship. Investors with long-term plans in the U.S. can benefit from this program not only for a streamlined immigration process but also for the prospect of having their capital repaid in a relatively short time.

To take advantage of these benefits, it is important for prospective EB-5 investors to do their due diligence and make informed decisions. The first step to U.S. citizenship through the EB-5 visa should be selecting the right team of professionals to assist investors throughout their investment process.

For additional insights on the process of becoming a U.S. citizen through the EB-5 program, book a call with our EB-5 team today.

The backlog for EB-2 and EB-3 visa categories has hit unprecedented levels, with delays outpacing even those of the EB-5 Immigrant Investor Program.

According to U.S. government statistics, recent applicants from India, which has the highest demand, could face waiting periods ranging from 20 years to an astonishing 128 years before their visa is issued.

Several factors contribute to these extreme delays in EB-2 and EB-3 visa approvals. The global demand for these visas has surged, seeing over 15,000 applications monthly. However, the annual quota remains capped at 40,000 visas for both EB-2 and EB-3 categories. This cap includes family members eligible for visas, not solely the primary applicant.

In this article, we will delve into the processes for EB-2 and EB-3 visas and analyze government data to understand the reasons behind these significantly extended wait times for both new and existing applicants. We’ll look into alternative pathways for those in the queue for EB-2 and EB-3 visas.

Understanding EB-2 and EB-3 Visas

The EB-2 and EB-3 visas fall under employment-based (EB) categories, offering holders the opportunity for permanent residency in the United States, with the United States Citizenship and Immigration Services (USCIS) overseeing these programs.

Overview of the EB-2 Visa

The EB-2 visa caters to foreign professionals either with an advanced degree or outstanding skills. Eligibility for the visa with an advanced degree necessitates holding a master’s, doctorate, or equivalent degree from abroad. For those claiming exceptional ability, the applicant must meet at least three of the following criteria:

• Possession of a university degree or diploma in their field of expertise.
• A valid license or certification allowing professional practice.
• Notable acknowledgments for contributions to their industry.
• Affiliation with pertinent professional organizations.
• Proof of a high salary or other compensation indicative of superior ability.
• Recommendation letters from past and present employers verifying at least a decade of professional experience.

Insights into the EB-3 Visa

The EB-3 visa is designated for skilled workers and professionals from abroad whose occupations necessitate a minimum of a U.S. bachelor’s degree or its international equivalent, or a minimum of two years of vocational training. Applicants are required to have at least two years of work experience in their respective fields.

For both EB-2 and EB-3 visas, the holder’s spouse and their unmarried children under 21 years old are eligible to accompany or follow to join them in the United States. Additional family members may be eligible for family-based immigration in the future, particularly if the visa holder proceeds to apply for U.S. citizenship.

Procedures for EB-2 and EB-3 Visas

The application process for both EB-2 and EB-3 visa categories involves similar steps. Applicants must have a permanent, full-time job offer from a U.S. employer, and the employer must first receive labor certification from the U.S. Department of Labor (DOL), not USCIS.

Upon extending a formal job offer to an international worker, the U.S. employer is required to secure a certified ETA Form 9089, Application for Permanent Employment Certification, or PERM, from the DOL. This certification confirms that there are no available or qualified U.S. workers for the job and that hiring the immigrant will not negatively impact the wages of U.S. workers.

The processing of ETA Form 9089 for labor certification by the DOL can take up to six months. This certification is valid for only 180 days.

Following this, the U.S. employer must file Form I-140, Petition for Alien Worker, for the immigrant. This petition is for the noncitizen worker to obtain lawful permanent residency in the U.S. based on employment. The petition must include proof that the employer can afford the foreign worker’s salary on a permanent, full-time basis.

There is a $700 filing fee for Form I-140, which must be submitted to USCIS before the labor certification’s 180-day validity period ends. The processing time for this form can also extend up to six months.

Catastrophic Waiting Periods

If both ETA Form 9089 and Form I-140 typically require around six months each for adjudication, what accounts for the exceedingly prolonged waiting periods associated with EB-2 and EB-3 visas?

Legislative Caps on Visas

Over three decades ago, Congress established an annual global cap of 140,000 employment-based visas, a figure that has remained unchanged despite growing population sizes and demands.

Each year, out of this total, only 40,000 visas are allocated to the EB-2 visa program, and another 40,000 are set aside for the EB-3 visa category. This allocation includes not only the primary visa applicants but also their eligible dependents, such as spouses or unmarried children under the age of 21. No single country may claim over 7% (or 2,800) of the 40,000 visas available in either category.

In 2022, the Department of Labor processed over 15,000 PERM labor certification applications monthly, with the number surging to over 22,000 in March 2023 alone.

Yet, even after obtaining approval for labor certification (ETA Form 9089) and employment-based immigration (Form I-140), applicants are still required to wait for one of the mere 2,800 green cards allocated per year in their visa category and country to become available.

Projected Delays for EB-2 and EB-3 Visa Applicants

The U.S. Department of State issues a visa bulletin monthly, updating cut-off dates for processing along with other crucial details. These cut-off dates, which are subject to frequent changes, apply across all visa categories.

Applicants for immigration visas are eligible to adjust their status to become permanent residents of the United States only if their priority date precedes the cut-off date in the State Department’s monthly visa bulletin.

A priority date is established on the day USCIS receives the Form I-140 from an EB-2 or EB-3 petitioner. Applicants typically receive a receipt notice (I-797) by mail a few weeks after filing.

The November 2023 visa bulletin from the U.S. Department of State shows a significant rise in global demand for both EB-2 and EB-3 visas, marking the first occasion since FY 2018 that no country is designated as ‘current’ for these visas.

As of November 2023, the cut-off date for EB-2 visas is set at July 15, 2022, for all countries except for India and China, with China’s cut-off at October 1, 2019. For EB-3 visas, the cut-off date is December 1, 2021, for all countries except for China and India, with China’s cut-off at January 1, 2020.

EB-2 or EB-3 applicants with a filing receipt dated before these cut-off dates are eligible to receive a U.S. green card, except for those from India.

Intense Visa Backlogs for Indian Applicants

The situation of visa backlog, or visa retrogression, is particularly dire for Indian nationals compared to other countries.

Manjunath Gokare, the founder and partner at Gokare Law Firm with a focus on immigration, notes, “The number of Indians in queue for green cards is at a staggering 1.1 million; with most in EB-2 and EB-3 categories.”

As of March 2023, there are 395,958 approved I-140 petitions in line for an EB-2 visa, with India accounting for 90% of these applications, or 358,078. Additionally, there are 129,754 approved petitions for the EB-3 visa, 89% of which are from Indian applicants.

By November 2023, the cut-off date for EB-2 visas for Indians is set for petitions filed before January 1, 2012. For EB-3 visas, the Indian cut-off date is May 1, 2012. This indicates that only applicants who submitted their I-140 petitions over ten years ago are currently eligible to receive their green cards.

Given that nearly 400,000 approved Indian nationals are competing for one of the 2,800 EB-2 visas available annually, simple calculations suggest that recent applicants could face a wait of up to an astounding 128 years for an EB-2 visa, or 41 years for an EB-3 visa.

And with the volume of applications reaching 15,000 each month in recent times, the backlog is expected to further increase.

EB-5 Visas: An Alternative Analysis?

The EB-5 Immigrant Investor Program stands as a highly dependable path to obtaining employment-based permanent residency in the United States.

Unlike other visa categories, there’s no need for an employer to sponsor EB-5 visas. This autonomy allows EB-5 holders the freedom to live, work, and study anywhere across the U.S. and switch jobs without affecting their resident status.

To qualify, EB-5 applicants must invest a minimum of $800,000 in a new U.S. commercial enterprise that will generate at least ten full-time permanent jobs for American workers, with these positions lasting no less than two years.

Although the EB-5 visa wait times have seen an uptick due to various reasons, including closures of consular services during the pandemic, the typical application processing for an entire family is within 5 to 8 years.

Countries with high demand may experience longer processing times. Nonetheless, EB-5 visas not claimed in countries with lower demand are reallocated to applicants from countries with higher demand, such as India or China, the following year.

EB-2 and EB-3 visa holders have the option to transition to the EB-5 visa, involving additional steps.

While the EB-5 visa comes with a higher price tag compared to EB-2 and EB-3 visas, the shorter waiting periods, particularly for Indian nationals, make it an attractive alternative. For those with available capital, the EB-5 visa not only accelerates residency acquisition but also offers potential returns on the investment should the enterprise succeed.

Legislative Solutions for the Visa Queue

The extensive backlogs for EB-2 and EB-3 visas are deterring highly qualified immigrants from seeking entry into the United States, presenting long-term detrimental effects on the U.S. economy’s vitality.

To mitigate these backlogs, Congress has the option to augment the annual allotment of employment-based immigrant visas. Similarly, it could eliminate per-country visa caps, a measure already omitted in certain visa categories.

Furthermore, Congress could boost funding to USCIS or the Department of Labor, enabling the recruitment of additional staff to review petitions. Efficiencies could also be realized through internal improvements to the PERM labor certification process and the overall operations of USCIS.

For detailed insights into employment-based visas, including the EB-5 investor visa, consider arranging a free consultation with EB5AN today, or reach out via email at info@EB5AN.com.

Investing in industrial warehouse ventures has traditionally been seen as a dependable and profitable option in real estate. However, recent market trends have sparked questions about the practicality of these investments, especially considering factors like oversupply and rising interest rates.

In this article, we will look into the reasons why industrial warehouse investments might not be the best choice for EB-5 investors, and explore safer options.

The Oversupply Issue

Before taking a closer look at industrial warehouses as an EB-5 investment option, investors must first understand the dynamics of the market. The last ten years have seen a sharp rise in the need for warehouse spaces, due to the surge in e-commerce, shifts in consumer habits, and streamlined supply chains. This surge attracted a wave of investors, causing a significant build-out of warehouse properties and leading to an excess in available spaces

Market Saturation and Vulnerability

Significant warehouse expansion in major urban logistics centers initially satisfied the growing demand. However, this expansion has then led to market saturation. The abundance of warehouse space has intensified the competition for leasing tenants, causing a decline in rental prices and compressing investors’ profit margins.

By the second quarter of 2023, the vacancy rates were rising, with distribution firms increasingly subletting space, marking the highest sublease rates seen in recent years. “The market is recalibrating, with vacancy expected to slightly rise over the next few quarters as construction deliveries begin to outpace net absorption, reversing the trend of the last two years,” stated a Newmark report.

The glut in warehouse spaces makes the industry vulnerable to economic downturns. In periods of financial instability, the demand for warehousing and distribution can fall, leading to unoccupied buildings and straining the returns for investors.

EB-5 investors need to pay attention to the fact that a sector’s past growth doesn’t guarantee future success, especially when such growth has caused an oversupply.

The Tenant Diversification Issue

The reliance of warehouse investments on particular sectors or key tenants poses a high degree of concentrated risk. If a significant tenant faces economic difficulties or changes their operational approach, it could affect the EB 5 investment’s success.

Warehouses are often built following a market analysis that identifies potential tenants nearby. Financial challenges faced by these tenants can turn the warehouse ineffective. The safest real estate investments have a diverse portfolio of tenants and buyers.

The Effects of Higher Borrowing Costs

The development of industrial warehouses is influenced by interest rates, affecting both demand for warehouse space and the overall project costs. Financing is a common approach for purchasing materials and equipment, and as interest rates rise, so do these expenses, potentially affecting the budget for new warehouse projects.

The value of warehouse properties and the potential lease rates are also affected by fluctuations in interest rates. With higher interest rates, tenants who rely on borrowing for their operations face increased expenses, which may affect their capacity to afford higher lease payments.

In scenarios where rising interest rates affect both the costs and revenues of a project, EB5 investors must reassess the project’s profitability.

Financial Uncertainty

Changes in the global economy, like trade disputes and supply chain disruptions, can impact the industrial warehouse industry. EB-5 investors must also evaluate how these macroeconomic trends could affect their investments.

As explained by The Wall Street Journal in a logistics report published in 2023, retailers have recently decelerated their warehouse leasing due to a decline in the pandemic-induced online shopping boom and the challenges posed by inflation.

Amazon.com Inc., which had expanded its fulfillment network size by double within two years during the pandemic’s peak, started to pull back on its logistics growth, choosing to sublease some of its warehouse spaces.

Adrian Ponsen, the national director of U.S. industrial market analytics at CoStar, observed: “Developers’ profit margins are basically coming under pressure from both sides. At the same time that the hard costs to build these warehouses is rising, the prices that developers think they can ultimately sell them for is beginning to decline.”

The first nine months of 2023 saw industrial property construction initiations plummet by 48% compared to the same timeframe in 2022, marking the steepest fall for that period since 2009. This decline poses big challenges for investors like Blackstone, whose industrial real estate holdings make up a large part of their property portfolio.

The Uncertainty in EB-5 Job Creation

EB-5 projects within the industrial warehouse sector often depend on generating employment through their operations. Creating jobs through operational activities is far less predictable than through construction efforts. In the case of construction-generated jobs, the developer only needs to allocate the planned budget toward construction activities to fulfill the EB-5 job creation requirement. However, job creation based on operational success depends on meeting or surpassing expected revenues.

During periods of economic decline, a project might fall short of its expected revenue, failing to produce the initially planned jobs. This discrepancy highlights the risky nature of depending on operational jobs to meet the EB-5 program’s job creation criteria.

Exploring Safer EB-5 Real Estate Investment Options

The revenue and market valuation of warehouse properties heavily depend on the current economic conditions. EB-5 investors, who usually expect short-term returns and full repayment of their investment, face difficulties during economic downturns. Selling or refinancing property becomes hard in a weak market, which may extend investment periods or result in capital losses. These types of investments carry significant risks for EB-5 investors due to their cyclical nature.

EB-5 real estate projects built by reliable developers, however, offer a more secure investment pathway compared to cyclical options. With the right approach to EB-5 project selection, investors can benefit from diligent planning, stringent oversight, and proven track records. By focusing on steady construction-based job creation rather than being heavily influenced by economic cycles, these projects mitigate both financial and immigration risks EB5 investors might face.

Investing in the right EB-5 project not only offers the potential for timely financial returns but also presents a faster and smoother process toward obtaining a Green Card in the United States, with the subsequent opportunity to apply for citizenship.

For further insights into the EB-5 process, book a call with our team and discover which real estate investments are most suited to your specific needs and preferences.

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.