While an EB-5 investment can be a lucrative financial decision that generates a handsome return on investment, most EB-5 investors participate in the EB-5 Immigrant Investor Program primarily—or even solely—to obtain a U.S. green card and live permanently in the United States. This makes the likelihood of EB-5 approval the driving factor behind many foreign nationals’ decision to make an EB5 investment. There are no guarantees in the EB-5 program—denial is always a possibility. But fortunately, for most EB-5 investment participants, it’s an extremely slim possibility.
The First Step: Filing an I-526 Petition
The first form an EB-5 investor must file with United States Citizenship and Immigration Services (USCIS) is Form I-526, which officially sets their EB5 investment journey in motion. To file an I-526 petition, an investor must have already identified a desired EB-5 project and committed their EB-5 capital to the designated escrow account.
The I-526 is intimidating for many EB-5 investment participants due to its numerous stipulations and required supplementary documents. USCIS uses the I-526 petition to learn more about an investor, their immediate family members, and the project they are making an EB5 investment in, and petitioners must satisfy three key requirements to move forward in their EB-5 journey. First, they must prove that the new commercial enterprise (NCE) receiving their EB-5 investment truly exists and features a viable job creation plan, that they have committed their EB-5 funds to the NCE and will participate in the NCE’s management, and that all their EB-5 capital has been derived from lawful sources.
The source-of-funds requirement is generally the most difficult and time-consuming, depending on the fund sources an investor is documenting. This process can, however, be streamlined by hiring an EB-5 immigration attorney, who can advise an investor on the best fund sources to use and otherwise assist in the I-526 process.
Another tip for compiling a successful I-526 petition is to make an EB-5 investment through an EB-5 regional center, which are USCIS-approved commercial entities that group together EB-5 investments to fund major projects. Reputable regional centers can offer professional guidance to elevate an investor’s chances of I-526 success. A further advantage of regional center investment is that it relaxes the requirement to be involved in the management of the NCE: merely signing on as a limited partner is sufficient for regional center investors.
The Last Step: Filing an I-829 Petition
The I-526 process is the most harrowing part of the EB-5 journey, and I-526 approval makes an investor—and their spouse and dependent children—eligible for two years of conditional permanent resident status in the United States. But investors must follow up with Form I-829 at the end of their two-year residency period to remove the conditions and obtain the right to reside in the United States indefinitely.
With the I-829 petition, USCIS is interested in determining whether the EB5 investment has met all the requirements necessary for a U.S. green card. The most important requirement is the creation of at least 10 full-time jobs for U.S. employees, but the immigration body will also check whether an investor has maintained their EB-5 investment capital at risk throughout the full period of investment. For investors from backlogged countries—especially China—this can lead to the necessity to redeploy EB-5 capital in a new project so that it stays at risk.
Aligning with an EB-5 regional center proves beneficial once again in the I-829 process, facilitating the ever-important count of created jobs. Those who invest directly in an EB-5 project are limited to direct jobs (i.e., those listed on the NCE’s payroll or construction jobs that last more than two years). Those who invest through a regional center, conversely, have the option to additionally count indirect and induced jobs (i.e., those created through the procurement of goods and services by the NCE or by the wages spent by NCE employees in the community). The relaxed job creation rules for regional center investors are the biggest reason for its popularity over direct EB-5 investment.
I-526 and I-829 Approval Statistics
As the above sections illustrate, the I-526 and I-829 processes are long and involved. An investor may wonder whether the approval rates are high enough to justify all the time and effort necessary for an EB5 investment—and the answer is an overwhelming yes. Since 2008, USCIS has approved I-526 petitions at an average rate of 82.9%. Those who invest through regional centers are even better off—most regional centers boast approval ratings exceeding 90% for their investors’ I-526 petitions. This highlights the importance of seeking out a reputable EB-5 regional center, as a long track record of I-526 approvals is a strong indicator of future approval.
The situation is even rosier for I-829 petitioners. Those who have passed the first stage of USCIS adjudication with I-526 approval are highly unlikely to lose their permanent residency rights with the filing of their I-829 petition. Since 2016, USCIS has approved 96% of I-829 petitions, and the lowest approval rate since 2013 was a whopping 90%.
While guarantees are impossible, with the risk of delays, setbacks, and even denial always present, foreign nationals can embark on an EB-5 investment journey with little fear of rejection. As long as an investor earnestly works to fulfill the program requirements and hires an experienced EB-5 immigration lawyer to guide them through the process, they can be confident that they will soon reap the many benefits of U.S. permanent resident status.
