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

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

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

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

Timeline for Indian Applicants to Secure an EB-5 Visa

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

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

Filing the Application

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

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

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

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

Priority Dates

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

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

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

Investment Options and TEAs

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

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

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

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

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

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

History of EB-5 Visa Processing Times for Indian Applicants

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

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

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

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

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

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

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

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

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

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

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

Navigating Forms DS-260 and I-485

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

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

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

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

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

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

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

Filing the I-829 Petition

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

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

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

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

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

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

Insights for Indian EB-5 Investors

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

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

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

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

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

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

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

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

Steps to Securing an EB-5 Investor Visa

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

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

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

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

Investment Options for the EB-5 Visa

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

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

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

Direct EB-5 Investments

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

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

EB-5 Regional Center Investments

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

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

EB-5 Visa Requirements

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

Job Creation

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

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

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

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

Targeted Employment Areas (TEAs)

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

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

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

Key Components of Form I-526 Submission

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

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

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

At-risk Investment

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

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

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

Source of Funds

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

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

Investment in an NCE

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

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

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

Proof of Job Creation and Involvement

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

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

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

Personal Information

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

Benefits of Holding an EB-5 Investor Visa

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

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

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

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

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

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

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

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

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

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

Criteria for Qualifying as an E-2 Investor

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

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

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

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

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

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

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

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

Comparing the EB-5 and E-2 Investment Visas

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

Minimum Investment Amounts

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

Additional Costs

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

Eligibility

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

Processing Time

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

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

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

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

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

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