Decisions and Requirements to Obtain Permanent Resident Status through the EB-5 Immigrant Investor Program
The fifth employment-based immigrant visa preference, more commonly referred to as EB-5, was created in 1990 by Congress to enable foreign investors to gain permanent resident status through qualifying investments. The program is administered by United States Citizenship and Immigration Services (USCIS).
In general, an EB-5 investment must be made in a new commercial enterprise (NCE) that creates 10 full-time jobs and benefits the U.S. economy. The investment must be sufficiently large, and the investor must be sufficiently engaged in managing the enterprise.
Following is the process for obtaining a permanent Green Card through the EB-5 Immigrant Investor Program.
Choose to Invest Directly or through an EB-5 Regional Center
EB-5 investors have the option to invest directly in an NCE, or they can invest in a project sponsored by a USCIS-approved regional center. For purposes of job creation, regional centers offer investors definite advantages over direct investments.
For direct investments, only direct jobs can be counted toward the employment creation requirement, whereas for regional centers, indirect and induced job creation can also be calculated using accepted economic methodologies. Additionally, regional centers enable EB-5 investors to easily pool their funds with other investors, which allows for larger projects and favorable job creation margins.
Select an EB-5 Project
Whether investing directly or through a regional center, EB-5 investors should conduct ample due diligence to ensure a prospective investment is a good match for them and that the regional center (if applicable) has a track record of success.
The EB-5 program requires investments to be made in NCEs, which are defined as for-profit businesses established after November 29, 1990, engaged in lawful commercial activity. Businesses formed before this date may be eligible for EB-5 investment if they have been restructured or expanded such that a 40% increase in net worth or number of employees has occurred.
EB-5 investors can also choose to invest in troubled businesses, which are defined as businesses that have experienced 20% or higher net loss in the past 12 or 24 months. For troubled business investments, EB-5 investors are not required to create 10 new full-time jobs—instead, the NCE must maintain employment at the pre-investment level.
The location of the NCE receiving the investment should also be considered. A targeted employment area (TEA) is defined as either a rural area with a population less than 20,000 or an area with 50% greater unemployment than the national average. Projects located in TEAs require less capital from EB-5 investors.
Choose a Qualifying Investment
Currently, the required minimum EB-5 investment is $1,000,000 unless the NCE is located in a TEA. For projects in TEAs, the minimum investment is currently $500,000.
USCIS requires EB-5 investors either to make their investment in full and upfront or to demonstrate that their capital is irrevocably committed to the investment.
Submit Form I-526 for the EB-5 Visa
Once an investor has worked through the process of investing his or her capital in an EB-5 project, Form I-526, Immigrant Petition by Alien Entrepreneur, must be submitted to USCIS for approval.
This petition and supporting documentation must demonstrate that the investor has invested the appropriate amount of capital in an NCE that will generate or maintain the necessary jobs to meet the EB-5 program’s employment requirement, and that the investor will be sufficiently engaged in the management of that enterprise.
For the purposes of the EB-5 Visa Program, sufficient engagement entails either direct, day-to-day management in the NCE or a role in its policy formulation. NCEs are often structured as limited partnerships, in which case EB-5 investors are considered sufficiently engaged by virtue of their role as limited partners.
USCIS also expects thorough documentation that proves the investor’s funds were lawfully obtained.
Obtain Conditional Permanent Resident Status
Once the I-526 Petition is approved by USCIS, the foreign investor must go through the process of obtaining his or her EB-5 Visa (Green Card). For investors living outside the U.S., this involves submitting Form DS-230 to the U.S. National Visa Center and being processed through the U.S. consulate or embassy in their home nation. Investors legally residing in the U.S. under a different immigrant status must submit Form I-485 to change their status to conditional permanent resident.
The EB-5 program enables investors to obtain Green Cards for themselves, their spouses, and any children who at the time of filing Form I-526 are unmarried and under age 21.
The status afforded EB-5 investors at this stage is conditional and lasts for only two years.
Maintain the NCE and Investment during the Conditional Period
In order for the conditions to ultimately be removed at the end of the two-year conditional period, the investor must be able to demonstrate that the NCE he or she invested in and the investment itself were maintained throughout this time.
Limit Travel Abroad
Permanent resident status is contingent on actual residence within the U.S. If the government suspects a permanent resident does not intend to reside in the U.S., his or her status may be revoked. In general, permanent residents may spend time abroad as long as they are in the U.S. for at least six months per year.
Submit Form I-829
At the end of the two-year conditional period, the EB-5 investor must submit Form I-829, Petition by Entrepreneur to Remove Conditions. This petition must be submitted within the last 90 days of the two-year period.
The purpose of Form I-829 is to demonstrate to USCIS that all the requirements of the EB-5 Visa program have been met. Therefore, the petition and its accompanying documentation must clearly show that the required amount of capital was invested in an NCE that actually created or sustained the necessary number of jobs to meet the employment requirement.
Once USCIS approves an investor’s I-829 Petition, the investor and his or her family become lawful permanent residents. Five years after receiving the initial conditional permanent resident status, the investor and his or her family may apply for U.S. citizenship.