For many years, the EB-5 Immigrant Investor Program has been considered one of the most practical and rewarding visa-by-investment programs in the world. Even though the EB-5 investment industry is governed by numerous regulations, the basics of the program are relatively straightforward: Foreign nationals must make an investment in a qualifying new commercial enterprise (NCE) or a troubled business. This EB-5 investment must comply with all United States Citizenship and Immigration Services (USCIS) guidelines—for instance, the EB-5 capital must remain at risk and be sourced legally. As of July 2021, the required minimum amounts for EB-5 investments are $500,000 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects. Moreover, each EB5 investment must generate or preserve at least 10 full-time jobs.

Foreign nationals who comply with the above regulations become eligible to apply for conditional permanent resident status. Later, they can become lawful permanent residents of the United States. Even though some other countries offer investor visas, the minimum required investment amounts may be significantly higher than those of the EB-5 program. Clearly, the EB-5 investment visa is the best way for foreign nationals to fulfill their dream of relocating to the United States.

However, some interested foreign nationals may hesitate to make an EB5 investment due to the uncertainty caused by the COVID-19 pandemic, which resulted in difficulties for many EB-5 investment projects in 2020. Additionally, the sudden changes in EB-5 regulations that took place in June 2021 may cause foreign nationals to question the program’s stability—after all, the regional center program expired temporarily on June 30, just a few days after the controversial Modernization Rule was overturned on June 22.

Despite these factors, potential EB-5 investors can be sure that the program is still up and running. In fact, now may be the ideal time to make an EB-5 investment. Interested foreign nationals would do well to consider the main benefits of participating in the EB-5 investment program.

The EB-5 Program Continues During the Pandemic

Even though the COVID-19 pandemic has not ended as of August 2021, USCIS continues to process I-526 petitions, which means that EB-5 investments can still be made. The pandemic may even have benefitted the EB-5 investment industry to some extent: Since unemployment has increased throughout the United States, many more parts of the country could potentially be considered as TEAs. As a result, more investors might be able to invest at the lower minimum amount of $500,000.

Family Members Also Qualify for Green Cards

The EB-5 investor is not the only one who will benefit from participating in the program—their immediate family members will also qualify to receive permanent resident status. The investor’s spouse and any unmarried children under the age of 21 will be entitled to enjoy life in the United States. Further, this opportunity will enable the investor’s children to experience the United States’ world-class education system.

EB-5 Investors Can Apply for U.S. Citizenship

Undoubtedly, one of the most significant benefits of making an EB5 investment is the opportunity to obtain U.S. citizenship. After holding permanent resident status for at least five years (this period includes two years of conditional permanent residency), the investor and their family can submit Form N-400 and apply to become citizens of the United States. U.S. citizenship will enable the family to vote in the United States, travel abroad without restrictions, and even hold dual citizenship if their country of origin allows it.

These are just some of the many advantages of participating in the EB-5 program. Of course, foreign nationals who want to begin the path to permanent resident status will need guidance to navigate the many regulations on the EB-5 industry. To that end, they should consult EB-5 specialists and immigration attorneys, who can help them identify suitable projects and comply with all USCIS guidelines.

The EB-5 investment program is undoubtedly the best way for foreign nationals to begin a new life in the United States. The program enables foreign nationals to obtain U.S. green cards by investing in qualifying new commercial enterprises (NCEs). After making an EB5 investment that generates or saves at least 10 jobs and uses at-risk, legally sourced funds, foreign nationals will be able to apply for permanent resident status. Becoming a lawful permanent resident of the United States will entitle the investor to many privileges. For instance, they will be allowed to live and work anywhere in the country and benefit from the United States’ federal and state laws.

Even though the U.S. government established the EB-5 program in 1990, it wasn’t until 2008 that EB-5 investments gained their current popularity—the economic crisis that took place that year likely made EB-5 investment capital all the more appealing. Since then, the program’s popularity grew exponentially, and 2018 saw a record number of EB-5 investment applications.

Challenges Faced by the EB-5 Program

Admittedly, the EB-5 industry faces certain challenges, which cast a shadow over the program’s positive impact on the U.S. economy. In 2020, the financial crisis generated by the COVID-19 pandemic caused several EB-5 projects to be suspended or even canceled altogether. Additionally, EB-5 investment applications have been subject to pitifully slow processing times—even though USCIS has made admirable efforts to speed up the adjudication process, I-526 petitions may still take years to be approved. In fact, Chinese EB5 investment applications have been backlogged since May 2015, so EB-5 investors from China will have to wait far longer to obtain their visas.

Despite these flaws in the EB-5 program, thousands of foreign nationals have made EB-5 investments and successfully relocated to the United States—the advantages of participating in the EB-5 program far outweigh any drawbacks. Three key benefits motivate many foreign nationals to participate in the EB5 investment industry.

Obtaining an EB-5 Visa Can Lead to U.S. Citizenship

Many foreign nationals who make their EB-5 investments are not only interested in securing permanent resident status—after holding their green cards for at least five years, EB-5 investors can file Form N-400 and apply to become citizens of the United States. U.S. citizenship will entitle investors to travel outside the country without restrictions, vote, and obtain U.S. passports.

Investors from Any Country Can Participate

The vast majority of immigration programs have restrictions on what kinds of foreign nationals can apply. In contrast, the EB-5 investment program is truly global and open to foreign nationals from all countries and of any occupation. USCIS is primarily concerned with making sure that each EB-5 investment is legally sourced and generates the 10 required jobs.

Family Members Also Receive Green Cards

The EB-5 program also grants permanent resident status to an EB-5 investor’s immediate family—that is, their spouse and any unmarried children under the age of 21. This benefit is free and does not require the investor to provide any additional capital.

Since the minimum investment amounts for EB-5 projects were lowered on June 22, 2021, there has never been a better time to make an EB-5 investment and enjoy the above rewards. Contact EB5AN for information on open EB-5 investment opportunities.

Making an EB-5 investment is one of the best ways a foreign national can pave the way to permanent immigration to the United States. EB5 investments are relatively straightforward and are open to nationals of any country, as long as they possess the capital means to make an EB-5 investment. However, it’s not quite as easy as funneling capital into a qualifying EB-5 project and relocating permanently to the United States. EB-5 investors do face stringent requirements that shield against fraudulent activity and ensure the EB-5 Immigrant Investor Program benefits the U.S. economy as originally intended by Congress.

Failure to meet the requirements of the EB-5 program generally results in the denial of an investor’s I-526 petition or I-829 petition, depending on where in the EB5 journey the infraction occurs. United States Citizenship and Immigration Services (USCIS) may first issue a request for evidence (RFE), however, if the information in an applicant’s petition is unclear or inconsistent, giving the investor a second chance to clarify their fulfillment of the program requirements. For the most part, an investor can satisfy the requirements by being an honest, good-faith investor using lawfully obtained capital. To avoid becoming entangled in a fraudulent project, investors are encouraged to conduct careful due diligence of any EB-5 project and regional center they consider working with. (Even though the regional center program expired on June 30, 2021, industry experts are confident that it will be reauthorized shortly.)

Minimum Required Investment Amount

The most straightforward EB-5 investment program requirement is the minimum required investment amount. While there is no maximum amount, an investor must commit at least the minimum amount to their EB5 investment project to qualify for the immigration benefits. As of June 22, 2021, the minimum investment amounts are $500,000 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects.

Eligible New Commercial Enterprise

When Congress drew up the EB-5 program in 1990, they introduced certain conditions on which organizations applicants could funnel their EB-5 investment capital into. New commercial enterprises (NCEs), as they are termed in EB-5 law, must be for-profit entities conducting ongoing lawful business activities. As long as the activities are legal and ongoing, there are few restrictions, although the most popular types of EB-5 projects tend to be real estate development and hotels. The investment object must also have been created after 1990—hence the “new” in “new commercial enterprise”—or, if formed before 1990, must be using the EB5 investment capital to expand or restructure the enterprise.

Alternatively, an EB-5 investor can take the less-traveled route of investing in a troubled business. Congress has defined strict terms for what qualifies as a troubled business—the entity must have been established at least two years prior to the applicant’s EB-5 investment and have suffered a net loss of at least 20% of the entity’s value within the one- to two-year period preceding the investment.

Whether an investor invests in an NCE or a troubled business, they always face the requirement to be involved in the management of the entity. This can turn prospective investors with little managerial experience—or those who simply don’t have the time or desire to manage the business—away from the EB-5 program. However, regional center investors usually work around this requirement by signing on as a limited partner, fulfilling this requirement simply by voting remotely on policy formation decisions.

Job Creation

The EB-5 job creation requirement is arguably the most important to Congress—it’s the primary reason why the EB-5 program is a boon to the U.S. people. Indeed, the EB-5 rules stipulate that to reap the immigration benefits the EB-5 program offers, a foreign national’s investment must fund the creation of at least 10 new jobs for U.S. citizens or permanent residents. The jobs must be held for at least two years. The job creation requirement is somewhat flexible, with those who make an EB5 investment through a regional center presented with a relaxed route to job creation.

Direct EB-5 investors must show the creation of at least 10 new jobs on the payroll of the NCE—and depending on the type of business, hiring 10 full-time employees may not be realistic. This effectively restricts the type of businesses that can qualify as direct EB-5 investment projects. The solution is regional centers, which allow investors to count indirect and induced jobs toward the job creation requirement. Under this model, the NCE’s expenditures on goods and services, as well as the wages its employees spend in the local community, are calculated to determine the job creation impact the EB-5 investment has likely had on the region. A third-party economist using approved job calculation methodology must be hired for this calculation.

Job creation is proven in the I-829 petition—the final petition of an EB-5 investment journey. Investors file the I-829 petition after living in the United States as a conditional permanent resident for two years, and approval of the I-829 petition sees the conditions on the applicant’s permanent resident status removed. In the I-526 petition, investors must simply demonstrate the likelihood of the project to generate the 10 jobs.

The EB-5 Immigrant Investor Program has enjoyed immense popularity for many years and has long been considered one of the best ways to immigrate to the United States. EB-5 investment capital provides U.S. businesses with much-needed funds while enabling foreign nationals to apply for permanent resident status and relocate to the United States with their families. Despite the EB-5 program’s popularity and resounding success, many of the current policies established by United States Citizenship and Immigration Services (USCIS) disfavor the program—the EB-5 investment industry is in dire need of reform.

Given these circumstances, many industry members celebrated the Senate’s confirmation of Ur Jaddou as the new director of USCIS on July 30, 2021. Since Jaddou has extensive experience working in the U.S. immigration system, many believe that she will help solve the issues that plague USCIS and the EB-5 program.

Jaddou’s Background

Prior to her appointment as director of USCIS, Jaddou has served as the agency’s general counsel, majority chief counsel for the U.S. House Judiciary Subcommittee on Immigration and Citizenship, and director of DHS Watch. She was also a deputy assistant secretary at the U.S. State Department.

The Senate’s confirmation of Jaddou’s appointment is especially noteworthy because USCIS has been led by temporary acting directors for many years—surely, a more permanent directorship will result in sorely needed improvements to USCIS and the EB-5 investment industry.

Possible Changes to USCIS Policies

Jaddou has stated that she will work on solving USCIS’s funding issues. The COVID-19 pandemic caused a dramatic decrease in immigration petitions. Since much of USCIS’s budget comes from application fees, it announced a massive furlough scheduled for August 2020. Even though the furlough was ultimately averted thanks to tighter spending policies, USCIS desperately needs to return to solvency.

Perhaps the most important issue affecting the EB5 investment industry is USCIS’s notoriously slow petition processing times, which have caused stagnant visa backlogs for investors from numerous countries. In fact, China has experienced a backlog since May 2015. Given USCIS’s history of inefficiency, Jaddou will certainly have a lot of work to do to expedite the adjudication process for EB-5 applications.

Reactions to Jaddou’s Appointment

Many Republicans have openly expressed their distrust of Jaddou. However, her nomination was supported by numerous Democrats and agencies such as the U.S. Chamber of Commerce and the National Citizenship and Immigration Services Council. Many singled her out as the ideal candidate, citing her experience and promising track record. For example, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas stated that Jaddou will “administer our Nation’s immigration system fairly and justly. As the daughter of hard-working immigrants, Ur understands how immigrant families enrich our country and the challenges they face.”

The United States is famous for its strong democracy and the various rights and freedoms its people enjoy. Nearly half of the world’s countries operate under authoritarian or semi-authoritarian regimes, and many of the countries with democracy face flaws with their political system, which leaves the United States as a shining beacon of hope in the minds of many. Many of those living under the boot of an authoritarian government yearn for a life of freedom as offered by the United States, and that desire fuels a large portion of EB-5 investments. While EB-5 Immigrant Investor Program stakeholders tend to focus on economic and practical benefits of a life in the United States, the freedom and rights of U.S. democracy are an equally important consideration behind many EB5 investments.

Let’s take a look through some of the most important freedoms and rights in the United States.

Freedom of Speech

Freedom of speech is guaranteed by the First Amendment of the U.S. Constitution and is arguably the most important freedom to U.S. democracy. In many countries, individuals and journalists alike can be punished by the government for criticizing government policy or (in)action, sometimes facing incarceration or even death. The United States is different. If a foreign national makes a successful EB-5 investment, they can enjoy the freedom to say anything they wish without fear of governmental repercussions. U.S. media has the same right to criticize the government with impunity and does so regularly.

Freedom of Religion

Though Christianity of various denominations is the most commonly practiced religion in the United States, there is no official state religion, and the nation is home to practitioners of all sorts of religions. Many Jewish people, Muslims, Hindus, Buddhists, agnostics, atheists, and others live peacefully in the United States, enjoying the right to practice their faith freely and preach it to others.

The Bill of Rights goes further than just enshrining religious freedom—it also prescribes the separation of church and state, prohibiting the U.S. government from establishing a state religion. In various countries around the world, religious minorities can find themselves persecuted and oppressed and could be arrested or killed for practicing the wrong religion or not practicing the state religion. Those desiring religious freedom should consider, if they have the means, making an EB5 investment as a relatively quick and easy pathway to permanent residency in the United States.

Right to Peaceably Assemble

The right to vote in elections is reserved only for citizens of the United States, in line with most other countries. However, in the United States, voting isn’t the only way to participate in democracy. Unlike in many countries, where governments crack down harshly on peaceful protesters, throwing them in jail indiscriminately or even killing them, the United States celebrates peaceful protest as a powerful means to positive change. Throughout U.S. history are numerous cases of peaceful protest inspiring significant policy changes, and everyone in the United States—citizen or not—is welcome to participate in or organize peaceful protests.

Similarly, U.S. government representatives answer to all constituents, even those without citizenship, so even temporary residents should feel free to reach out to their representative with any concerns. The U.S. political system is ever-evolving to better meet the needs of its diverse population, and everyone has a voice in this system. While the economic landscape of the United States is always a nice draw, the freedom to participate in politics is an equally legitimate motivation to make an EB-5 investment.

A Strong, Fair Legal System

The U.S. legal system prides itself on its fairness, guaranteeing rights even to those who are charged with a crime. Under U.S. law, anyone charged with a crime is considered innocent until proven guilty, and no one can be convicted and sentenced without a fair legal process. Those who do not have the means to hire a criminal lawyer will be provided one for free by the state, allowing everyone access to professional legal assistance in arguing their case. Criminal verdicts are determined by a jury of a defendant’s peers, not the government, ensuring maximal fairness.

People making EB5 investments to come to the United States probably won’t ever have to exercise these rights, but knowing a strong, fair legal system is in place to deliver justice and protect those who live in the United States may be a comforting thought for many, especially those from countries with corrupt justice systems that bow to the government.

Strong Civil Courts

The U.S. legal system extends beyond criminal justice. Civil courts across the United States settle disputes between individuals, businesses, institutions, and more, affording involved parties the same rights as in criminal justice cases. This system allows entities to push back against actions that have caused damages, whether monetary, psychological, or otherwise, and offers individuals or small businesses recourse to fight huge corporations or institutions. Though some may joke about the amount of litigation filed in U.S. courts, in truth, civil courts help protect individuals and small entities from abuse by larger, more influential entities. In fact, EB-5 investment participants often make use of this option when faced with abuse from United States Citizenship and Immigration Services (USCIS), such as in the famous case of Zhang vs. UCSIS.

America: Land of the Free

For those from authoritarian countries who must bow down to the government in all aspects of their lives, the United States can seem like paradise. The strong economy of the United States is only one part of the story—the rights and freedoms guaranteed by the Constitution are the underpinnings of the nation’s success. With an EB5 investment, foreign nationals the world over can claim a slice of the American life, enjoying the rights and freedoms that make the United States so great.

One of the beautiful things about the EB-5 Immigrant Investor Program is its flexibility. Foreign nationals from any country can participate in the residency-by-investment program, and their EB-5 investment capital can come from almost any source, as long as it is legal. This flexibility opens the program up to many foreign nationals dreaming of a life in the United States for themselves and their immediate family members.

Sourcing one’s EB-5 investment funds is often among the most complicated and time-consuming aspects of the EB-5 process. Newcomers to the program are often unsure as to where they may source their capital from. Below are five of the most common sources of EB5 investment capital and tips on demonstrating their legal sources to United States Citizenship and Immigration Services (USCIS).

EB-5 Investment Capital from Employment

Many foreign nationals who make an EB-5 investment earn their capital through employment. The employment may be with any company and in any sector, as long as it is legal. Depending on an investor’s employment situation, proving the lawful source of their employment income may necessitate collecting documents from multiple companies, sometimes dating back several years. In countries with less rigorous record-keeping standards than the United States, necessary documents may not always be available—but an experienced EB-5 immigration attorney can typically advise investors of a workaround.

Various documents can be used to prove the legal sources of an EB5 investment earned through employment, including bank statements, paystubs, and a letter from the respective employer confirming the position and salary. But proof of employment alone isn’t enough—an EB-5 investor must also demonstrate that they have paid all applicable taxes on their income by supplying their tax returns.

EB-5 Investment Capital from the Sale of Property

Whether they inherited a property or bought it and have sold it for a large capital gain, EB-5 investors commonly use the sale of property to fund their EB5 investment. To prove the lawful sources of such capital, the sale agreement is obviously necessary, as well as bank statements showing the funds being deposited in your account from the buyer. But that’s not all—USCIS wants to see that an EB-5 investor originally obtained the property legally. This may entail including the initial purchase agreement, along with proof of the legal sources for the capital used to purchase the property, or inheritance papers. Then, of course, an EB-5 investor must show they paid any property taxes due on the property.

In some cases, an investor owns a property for a significant period of time before selling it, making it difficult to trace the documents from the time of initial purchase. Under such circumstances, USCIS may be satisfied with a note explaining why obtaining these documents is impossible, backed up by statements from local experts. An EB-5 immigration lawyer can guide EB-5 investors through the best solution for their situation.

EB-5 Investment Capital from Loans

Loans are also an acceptable source of EB5 investment capital, whether they come from an institutional lender or an individual. However, securing a loan from an institutional lender is always the safer bet, as USCIS does not require documentation on how major banks sourced their capital for the loan. If contracting a loan from an individual, an EB-5 investor must include evidence showing how the individual acquired the amount. Another important condition to note is that a loan from a friend should be at market rate—USCIS is prone to deny loans significantly below the market average.

To be on the safe side, it’s also recommended to secure the full amount of the loan with the EB-5 investor’s personal assets. Courts have ruled that unsecured loans are indeed valid for EB-5 investment purposes, but with USCIS’s tendency to alter its interpretations on a whim, it’s far safer to use a secured loan, if possible. Again, experienced EB-5 counsel can help determine the best path for any individual EB-5 investor.

EB-5 Investment Capital from Gifts

Though it may come as a surprise to some, gifts are a common and valid source of EB-5 investment funds, particularly from parents to children. Most young EB-5 investors come to the program by way of a gift from their parents, allowing them to work toward U.S. permanent residency as they complete their studies in the United States.

While a gift is a perfectly valid source of EB5 investment capital, investors must still prove the legality of the gift. First, they must provide a written document detailing the gift, with the donor stating in no unclear terms that the recipient has no obligation to repay the amount. If a gift tax is applicable, as in some countries, such as South Korea, the investor must also include records of the tax having been paid.

However, the bureaucracy doesn’t stop there—USCIS wants to confirm that the donor obtained the capital from lawful sources. Therefore, the donor must agree to divulge comprehensive information on the sources of their funds, just as a principal investor would do for employment income. Additionally, if the donor is not an immediate relative, it’s always good practice to include an explanation as to why the donor was willing to gift such a large amount to the EB-5 investor.

EB-5 Investment Capital from Inheritance

Like gifts, inheritance may be used as a source for an EB-5 investment, but the documentation for inherited EB5 investment capital can be tricky. Naturally, the relation of the investor to the deceased must be demonstrated, as well as a copy of the will or other evidence of their right to the inheritance. If the applicable country or state levies inheritance taxes, proof of payment must also be included in the investor’s I-526 petition.

Where inheritance source of funds gets difficult is in demonstrating the legal source of the deceased’s capital. In some cases, this can entail tracing decades of documents, some of which may be impossible to obtain. Explanations attesting to the impossibility to obtain such documents and affidavits asserting the source of funds may be acceptable alternatives—as always, an EB-5 immigration lawyer can provide tailored advice for any investor’s situation.

Consult with an EB-5 Immigration Attorney

This is a non-exhaustive list showcasing merely the most common sources of EB5 investment capital. Investors can and do use an array of other sources to fund their EB-5 investments, and as long as they can prove the money came into their possession legally, anything goes. It is also, of course, possible to use funds from several different sources.

With a complex program like the EB-5 program, it’s important to remember that there is no one-size-fits-all solution, and all investors have unique situations. That’s why it’s imperative to retain an experienced EB-5 immigration attorney who can guide you through the best sources to use for your EB-5 investment.

Many foreign nationals want to relocate to the United States and enjoy the country’s strong economy, political stability, high standard of living, and delightful culture. Perhaps the best way to obtain permanent resident status in the United States is to participate in the EB-5 Immigrant Investor Program. The EB-5 program, which has been active since 1990, allows foreign nationals to obtain green cards by investing in qualifying U.S. enterprises. EB-5 investments stimulate the U.S. economy by creating a source of reliable, legal funds for businesses in need. Moreover, the successful, high-net-worth individuals who participate in the EB-5 program become valuable assets to the country. After gaining their green cards, EB-5 investors may eventually apply to become U.S. citizens.

If you are interested in making an EB-5 investment to obtain permanent resident status, keep in mind that United States Citizenship and Immigration Services (USCIS) sets out several requirements for EB-5 investors. All EB-5 investors must be in a position to make the EB5 investment and cover the associated fees. Further, they must be able to invest funds that remain at risk and create the required number of jobs. USCIS also requires investors to provide exhaustive documentation proving that their funds were sourced legally—if investors cannot submit the needed proof, then USCIS will deny their visa petitions.

Additionally, EB5 investments can be made either directly or through a USCIS-approved regional center. In the direct investment model, investors can only count directly created jobs given to full-time workers. Typically, individuals who make a direct EB5 investment are much more involved in the day-to-day operations of the business. In contrast, EB-5 investments made through regional centers allow investors to count direct, indirect, and induced jobs, thus making it easier to meet the employment creation criteria.

In light of the complexity of the EB-5 program and the many different ways to make an EB-5 investment, interested individuals would do well to enlist the services of an immigration attorney and EB-5 consultants. The following overview shows how individuals can obtain permanent resident status through an EB-5 investment.

1. Identify a Suitable EB-5 Investment Opportunity

Investors can choose between a direct investment or a regional center project. Note that the minimum required investment amount is $1,000,000. However, projects located in targeted employment areas (TEAs) have a reduced minimum required amount of only $500,000. TEAs either have high unemployment rates or are rural. EB-5 investors should choose projects with promising job creation potential.

2. Transfer the Investment Funds

Before transferring the funds to the project’s account, EB-5 investors must make sure that they are ready to document the sources of their funds. USCIS will ask them to trace the invested funds back to their sources in great detail. As previously mentioned, the funds must remain at risk once they are invested.

3. Submit Form I-526

Once an investor has transferred the funds to the project’s account and made sure that they are in compliance with all USCIS regulations, it is time to file Form I-526, Immigrant Petition by Alien Investor. In this petition, investors submit evidence that they have followed all USCIS regulations governing the source of funds, investment amounts, job creation, and other factors. Note that the EB-5 investment must be made before the filing of Form I-526. Typically, an investor’s immigration attorney files the I-526 petition for them. The adjudication process for most I-526 petitions may take between two to five years, depending on the investor’s country of origin.

4. Obtain Conditional Permanent Residence

Once USCIS approves the I-526 petition, an investor can apply for conditional permanent resident status by sending Form DS-260 to the National Visa Center. Investors who already have an immigrant visa must instead submit Form I-845. This conditional permanent resident status will last for two years.

5. Submit Form I-829

Within the last 90 days of their conditional permanent residency, investors must file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. In this petition, investors submit further proof that they have fulfilled all USCIS criteria. Once the form is approved, the investor and their immediate family receive permanent resident status. In five years, they will be eligible to apply for U.S. citizenship.

The EB-5 visa process can be complex, but investors who obtain permanent residency always find that their efforts were worthwhile. Further, EB-5 professionals can provide you with invaluable guidance and simplify the process significantly.

The EB-5 Immigrant Investor Program is famous for offering foreign nationals the opportunity to immigrate permanently to the United States in exchange for an EB-5 investment in a qualifying U.S. business, termed “new commercial enterprise” (NCE) in the EB-5 world. Though the EB5 investment journey may be quicker and easier than many other routes of immigration, it’s still a lengthy process that demands significant criteria and paperwork from participants. An EB-5 investment is characterized by a few key petitions, but meeting the requirements for those petitions can be difficult and time-consuming.

Form I-526: The Initial Petition

Form I-526 is what officially kicks off an applicant’s EB-5 investment journey. This is an investor’s first interaction with United States Citizenship and Immigration Services (USCIS). But investors must dedicate significant time and effort to preparing the I-526 petition, including setting up their EB-5 investment itself. An investor should carefully consider their investment options and choose an EB-5 project that aligns with their needs and goals. They should also conduct due diligence on prospective regional centers, if they, like most applicants, are making an EB5 investment through a regional center.

Prospective EB-5 investors are strongly encouraged to consult with an experienced EB-5 immigration attorney to discuss their individual needs, goals, and circumstances. An EB-5 lawyer can help an investor determine the best type of EB-5 investment for them and their family and guide them through the preparation process for the I-526 petition. Most importantly, they can help investors navigate the fund-sourcing aspect of the petition, generally cited as the most challenging and time-consuming aspect.

USCIS needs to know that any EB-5 investment funds it handles have come from lawful sources. Thus, investors are required to present proof of the lawful sources of their EB5 investment capital. EB-5 capital can come from any number of sources—including multiple sources—as long as the investor can prove its legality. USCIS demands an extremely rigorous fund-sourcing process—for example, showing the sale of a real estate asset alone isn’t sufficient. The investor must also show how they sourced the money to originally purchase the asset as well.

When the I-526 petition is finally compiled, the investor pays the processing fee and files it with USCIS. Processing times vary, but typically, it takes between two and five years for I-526 adjudication, depending on the investor’s country of citizenship.

After I-526 Approval: Obtaining Permanent Residency

Simply obtaining I-526 approval does not automatically grant a foreign national and their immediate family members permanent resident status. Instead, EB-5 investment participants must undertake another process to obtain the status, which further delays their relocation to the United States.

If an applicant has made their EB5 investment from overseas—as most EB-5 investors do—they must submit Form DS-260 to the U.S. Department of State (DOS). DOS verifies the investor’s admissibility and invites them and any family members accompanying them to the United States to schedule a visa interview at their local U.S. embassy or consulate. After a successful interview, an applicant is granted access to the United States, and their two-year conditional permanent residency starts upon landing in the United States.

Foreign nationals already residing in the United States under a different visa status are also eligible to make an EB-5 investment, and while their journey is generally identical to overseas applicants, it does differ at the post-I-526 stage. Domestic investors do not go through consular processing—instead, they file Form I-485 with USCIS to adjust their immigration status. Upon approval of their I-485 petition, their conditional permanent residency period begins.

Form I-829: The Final Petition

Form I-829 can only be filed within the final 90 days of an EB5 investment participant’s two-year conditional permanent residency period. The purpose of the petition is to remove the conditions and grant the petitioner unrestricted permanent residency rights in the United States, and to have these conditions removed, an investor must prove that their EB-5 investment did, in fact, meet all the criteria of the EB-5 program.

An investor must satisfy several criteria for a successful EB-5 investment, including maintaining the EB5 investment capital at risk throughout the entire investment period and creating a minimum of 10 new jobs for U.S. workers. Those who make EB-5 investments directly in an NCE must present 10 new jobs on the payroll of the NCE, but those who invest through a regional center need only present a third-party economic calculation using approved methodology that indicates at least 10 direct, indirect, or induced jobs. The I-829 petition must be submitted with evidence to support the fulfillment of these criteria, as well as the filing fee and biometrics fee. If the I-829 petition is approved, the investor and any included dependents have the conditions removed and become fully fledged permanent residents of the United States.

The popularity of the EB-5 Immigrant Investor Program is undeniable—since 2008, the program has skyrocketed in demand, becoming a popular means of obtaining U.S. permanent resident status for foreign investors around the world. Nonetheless, the program remains controversial in the United States, and a sea of policy issues undermine its effectiveness for EB-5 investment participants, project developers, other EB-5 stakeholders, and the U.S. economy alike. While foreign investors have flocked to the program to earn U.S. permanent resident status for themselves and their immediate family members, the ever-slower processing times at United States Citizenship and Immigration Services (USCIS) and the agency’s retroactively applied rule changes frustrate those who make EB5 investments.

Lawsuits from disgruntled EB-5 investment stakeholders are not uncommon and can have drastic impacts on the program, overturning previous regulations. One famous example is Zhang v. USCIS, where the courts ruled against USCIS’s assertion that unsecured loans constituted indebtedness and thus not a valid source of EB-5 investment capital. Even more dramatically was the case of Behring Regional Center LLC v. Chad Wolf et al., which resulted in the Modernization Rule being overturned. The Modernization Rule had increased the minimum required EB-5 investment amounts by 80% and tightened the rules governing targeted unemployment area (TEA) designation, making EB5 investments far more expensive and harder to qualify for the lower TEA investment amount.

Then, among the U.S. public, the EB-5 program holds a negative reputation of fraud and corruption. This is in part due to the negativity bias of the media, which capitalizes on any instances of fraud in the EB-5 program, while, naturally, not reporting on the many successful and honest EB-5 investments. Politicians are often reluctant to offer support for the program, despite its positive influences, due to its controversial nature. Some politicians have even taken a hardline stance against the program, alleging rampant fraud.

Indeed, the EB5 investment world is swirling with legislative problems and regulatory issues, which is pushing some would-be investors away to residency-by-investment programs in other countries. The program’s dire need for reform has been the pivotal EB-5 investment topic of the first half of 2021, with reform seen as the only way to save the EB-5 Regional Center Program from expiration on June 30, 2021. And sure enough, when the Senate failed to enact the much-needed reform, the program expired, causing major headaches and delays for EB-5 investment stakeholders of all kinds. So, there is no shortage of policy issues in the EB-5 program.

Fraud and National Security Concerns

Perhaps the most common criticism of the EB-5 program is the doors it opens for fraudulent activities and national security risks. One U.S. senator even noted the egregious possibility of the EB-5 program for spies from the Chinese Communist Party to gain U.S. permanent residency rights. When adjudicating petitions, USCIS may flag EB-5 investors with ties to foreign adversaries or with connections to organized crime or terrorism, but the agency may not deny immigration rights to an applicant simply based on national security concerns, indeed opening the door to abuse by malicious actors.

Fraud is also a major concern for EB-5 stakeholders and the U.S. public alike. A few famous cases of EB-5 investment fraud have tarnished the program’s image in the media, and while most EB-5 stakeholders are honest and act in good faith, the industry has been pushing for meaningful reform for years. For one thing, USCIS requires investors to show the lawful sources of their EB5 investment capital, but when records date back decades in countries with poor documentation systems, it’s hard for USCIS to truly verify the source of funds. Project developers may also defraud investors in Ponzi schemes, creating fake projects that simply siphon off EB-5 investment funds for the enrichment of the project leaders. Finally, EB-5 regional centers may also participate in fraud, fooling investors with aggressive promotion tactics that lead investors to believe regional centers are government-run.

USCIS has taken measures to confront and stem problems of fraud in the EB-5 program, but without comprehensive program reform, it’s difficult to truly move forward. Since 2018, the agency has worked more closely with the Federal Bureau of Investigation (FBI), Immigration and Customs Enforcement (ICE), and the Securities and Exchange Commission (SEC) to identify instances of money laundering or other fraudulent activities, as well as national security issues including potential terrorists or spies. Proposed changes, such as the ability to terminate regional centers involved in criminal activity, the ability to prevent individuals with criminal records from being principals of regional centers, and the authority to audit regional centers, could go a long way in allowing USCIS to more effectively root out EB-5 fraud.

USCIS Data Collection Issues

Another major area of policy issues in the EB-5 program is USCIS’s poorly organized data collection methods. USCIS’s failure to digitalize much of its data, instead relying on heaps of paperwork, makes it difficult to trace necessary tidbits of information and effectively identify irregularities that could indicate fraud. Historically, USCIS has also requested relatively little information from EB-5 investment participants, omitting even information that could aid in detecting fraud. Gradually, the agency has been expanding the amount of information it collects and the ways it interacts with it, but there remains much room for improvement.

In 2017, USCIS increased the number of in-person site visits made to EB5 investment projects, finding more than 30% to be “not operating as expected,” whether because they were deserted, had gone out of business, or were not undertaking the activities they had claimed to. A historical lack of site visits could mean there is a sizeable number of EB-5 projects who have gotten away with fraudulent activities undetected.

USCIS’s failures in data collection also impede the ability of EB-5 investment stakeholders to calculate the economic impacts and job creation figures of the EB-5 program. USCIS only verifies that at least 10 jobs have been created per investor instead of tracking the precise number of jobs each investor created, significantly undercutting the total number of jobs created. Overall, USCIS data provides stakeholders with little insight into where EB5 investment capital goes.

Petition Processing Issues

For EB-5 investment participants, one of the worst policy issues at USCIS has been the adjudication times for EB-5 petitions, which have steadily increased over the 2010s as program demand shot up. In particular, Chinese investors face extremely long processing delays, due to country-based restrictions on annual visa allocation. Some investors have grown frustrated at their long waits and even submitted lawsuits to withdraw their EB5 investment and give up their ambitions to immigrate to the United States.

In 2018, USCIS hired a slew of new employees dedicated to EB-5 petition adjudication to help speed up processing times, which did improve the situation. But in 2019, processing times increased significantly again, with USCIS attributing the delays to strengthened measures to ensure integrity. In April 2020, the immigration agency introduced a new I-526 petition processing strategy that prioritized petitions from applicants whose countries did not face an EB-5 visa backlog, asserting that this move would help streamline processing and speed up the process for those who don’t face backlogs. 2020 was an unusual year in many ways, and USCIS couldn’t have predicted the pandemic that swept the world—but the visa availability processing approach didn’t appear to decrease processing times. Processing times is one of the areas that most EB-5 reform initiatives target, pushing for USCIS to return to reasonable processing times.

The EB-5 Immigrant Investor Program is one of the best ways for foreign nationals and their families to relocate to the United States and enjoy the country’s thriving economy and delightful culture. To qualify for permanent resident status, foreign nationals must make an EB5 investment in a qualifying U.S. enterprise and create or preserve at least 10 full-time jobs. Moreover, potential EB-5 investors received encouraging news on June 22, 2021—the EB-5 Modernization Rule had been invalidated, so the required minimum investment amounts decreased to $500,000 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects. Since United States Citizenship and Immigration Services (USCIS) or the Department of Homeland Security (DHS) could take action to raise these minimum amounts, EB-5 investors should take advantage of this opportunity while it lasts.

Admittedly, interested foreign nationals may feel apprehensive about making an EB-5 investment due to the June 30, 2021 suspension of the regional center program. Still, they can be confident that the program will be reauthorized in the coming months—after all, the regional center program previously expired in December 2018 but was later resumed. In fact, the program may be reauthorized in Fall 2021 as part of a spending bill.

Regardless of whether potential investors are interested in investing directly or making a regional center investment once the program is reauthorized, the following guidelines will help them prepare for the EB-5 investment process.

Procure Source-of-Funds Documentation

USCIS has put in place strict guidelines regarding the source of funds of EB-5 investments. When filing Form I-526, investors must provide exhaustive evidence that outlines the sources of their funds and proves their legality. To make matters more complicated, the required documentation will vary depending on the source of funds in question. For instance, EB-5 investors using funds gained from real estate sales will have to submit a property ownership certificate and purchase and sales contracts. On the other hand, foreign nationals who use gifted EB-5 capital will have to procure a written gift agreement signed by both parties. Proving the legality of EB-5 investment funds can be difficult and time consuming, so be sure to gather all the relevant documentation as early as possible.

Work with EB-5 Professionals

The many regulations governing the EB5 investment industry can be confusing to foreign nationals who are new to the program and want to minimize their investment risk. If a foreign national’s EB-5 investment does not comply with all the applicable guidelines when their I-526 petition is filed, USCIS may deny their application or send a request for evidence (RFE). Therefore, EB-5 investors should hire an experienced immigration attorney. Investors can also work with EB-5 consulting firms, which can help them keep up with the rapidly-changing EB5 investment industry.

Identify a Suitable EB-5 Investment Opportunity

Interested foreign nationals should start doing research on available EB-5 projects as soon as possible. When evaluating potential EB-5 investment opportunities, they should be on the lookout for high-risk or suspicious projects that do not have contingency plans in case of a capital shortfall. The safest EB-5 projects have taken steps to ensure their completion even if they do not gather all the planned capital, and EB-5 consultants can help identify such projects. For example, EB5AN offers highly reliable EB-5 projects and has a 100% I-526 and I-924 project approval rate.

Making a successful EB-5 investment requires careful planning and research, but it can lead to a new life in the United States. Schedule a meeting with EB5AN to learn more about current EB-5 investment projects.