Immigrating to the United States through the EB-5 immigrant investor program is complicated; the process itself can become an obstacle to potential investors. But with a little insight and perspective, the complexities of the EB-5 program can be unraveled into a navigable process.
To help foreign nationals considering the EB-5 visa program understand how the program works, we’ve broken down the EB-5 process into eight steps.
Step 1: Conduct Initial Research with an Immigration Attorney
Find a qualified immigration attorney to help you determine whether the EB-5 program is a fit for you.
The first step in the process is to conduct some basic research into the EB-5 program to determine whether it aligns with your investment and immigration goals and that you meet the program’s criteria. Several factors come into play, such as whether you are considered an accredited investor and whether visas for your country of origin are presently subject to visa retrogression. Due to the complexities of U.S. immigration laws and policies, you should hire an experienced immigration attorney to assist you in this initial research.
Step 2: Find One or More Potential Projects
Search for at least one project that you are comfortable with that offers low financial and immigration risk.
After determining that the EB-5 program is a fit for you, you need to find one or more projects that meet your particular investment goals, bear limited financial risk, and that have low immigration risk. For example, you may want to invest directly into a project and maintain active, day-to-day management responsibilities in that business; on the other hand, you might be more interested in a larger project with multiple investors sponsored by a regional center that involves limited management responsibilities.
Step 3: Conduct Careful Due Diligence on Your Preferred Project
Conduct comprehensive diligence on a potential investment to avoid fraud and ensure low financial and immigration risk.
Upon completing some preliminary research and selecting a potential investment, you’ll need more information on the project. In order to diligence a project, you’ll need access to the project’s full set of documents, which will likely require signing a confidentiality agreement. Signing a confidentiality does not represent a commitment to invest in the project.
Careful, comprehensive due diligence is vital to ensuring a project is legitimate, that the track records of those involved with the project are strong, and that the project itself offers low risk in terms of your invested capital. Most importantly, the project should have very little immigration risk, which means its job creation exceeds the requirements of the EB-5 program, it offers a high degree of transparency and compliance, and its assumptions and economic analyses are validated by objective third parties. If the diligence process reveals problems with the project, select the next project in your list of candidates and conduct due diligence on it.
Step 4: Invest the Necessary Capital in the EB-5 Project
Execute all necessary offering documents and transfer the necessary funds
Once you complete your due diligence and select a project, you will need to follow the procedures outlined in the offering documents to invest your capital into the project. This process generally entails executing the offering documents and transferring your EB-5 investment plus any fees into the designated account—often an escrow account. Be sure to work with your immigration attorney to ensure all laws and procedures are followed with the funds transfer to avoid any questions pertaining to the source and path of your funds.
Step 5: Work with Your Immigration Attorney to Compile Personal Documents
Compile all the documents required for visa processing.
In concert with your immigration attorney, begin to compile all the necessary documents for your Form I-526, Immigrant Petition for Alien Entrepreneur, which is filed with USCIS to request an EB-5 visa and conditional permanent resident status. The list of required documents includes copies of vital documents, such as birth certificates, marriage licenses, passports, etc., and sufficient evidence of the legal source of your investment capital, such as bank documents, employment and wage documents, documentation of gifts (including where the benefactor obtained the gifted funds), etc.
Step 6: File Form I-526, Immigrant Petition for Alien Entrepreneur
Instruct your attorney to file Form I-526 with USCIS.
Once you have supplied your immigration attorney with all the necessary documents, he or she will be able to file Form I-526. When the petition is received by USCIS, you will receive a receipt notice, which indicates the form has been successfully filed and provides you with your priority date. The priority date is used to determine when the petitioner may apply for his or her EB-5 visa.
Step 7: Apply for Conditional Legal Permanent Resident Status
Instruct your attorney to submit the appropriate application for conditional residency status.
If already residing in the United States, instruct your attorney to file Form I-485 to adjust your resident status; if still living in your home country, instruct your attorney to file Form DS-260 to apply for consular processing. Once the U.S. Department of State processes the application, you will be required to appear at the nearest U.S. consulate for an interview. At the conclusion of this process, you will receive conditional legal permanent resident status and a conditional Green Card.
Step 8: File Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status
At the conclusion of your conditional residence period, instruct your attorney to file Form I-829 to remove conditions on your resident status.
Within the last 90 days of your 2-year period of conditional residence period, instruct your attorney to file Form I-829. This form must demonstrate that you have met all of the requirements of the EB-5 program and is prepared by your attorney in conjunction with the project developer. Once USCIS approves your I-829 petition, you will attain the status of lawful permanent resident and receive a permanent Green Card.
These eight steps provide a summary overview of the entire EB-5 process, from initial research to obtaining a permanent Green Card. By following these steps and enlisting the help of qualified professionals along the way, you can successfully navigate the EB-5 visa process and immigrate to the United States.
