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Form I-526 Petition Best Practices

The EB-5 Immigrant Investor Program enables foreign nationals to obtain permanent resident status through investment in U.S. commercial enterprises. For an investor to begin the EB-5 process, he or she must file Form I-526 with the United States Citizenship and Immigration Services (USCIS).

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Form I-526 Basics

The foreign investor submits Form I-526, Immigrant Petition by Alien Investor, to the USCIS and demonstrates compliance with the EB-5 program. The investor’s I-526 petition must show that he or she has invested the appropriate amount of capital in an eligible U.S. enterprise, either directly or through a USCIS-approved EB-5 regional center, and that the enterprise will create the necessary number of jobs.

The amount of capital required depends on the location of the project. Projects located within areas of higher-than-average unemployment or low population, known as targeted employment areas (TEAs), require a minimum investment of $900,000. Projects located anywhere else require a minimum investment of $1,800,000. The investor’s petition must also clearly demonstrate that the invested funds came from a lawful source.

For a project to be eligible, it must be a new commercial enterprise that creates at least 10 qualified job positions for each EB-5 investor. These job positions must be full-time (at least 35 hours) and filled by U.S. citizens, lawful permanent residents, or other authorized workers.

The applicant’s I-526 petition must also demonstrate the foreign investor is sufficiently engaged in the day-to-day management of the new commercial enterprise.

Immigration attorneys often prepare Form I-526 on behalf of EB-5 investors.

Accompanying Documentation

The investor’s I-526 petition must be accompanied by documentation that demonstrates he or she has met all the criteria of the EB-5 program.

The petition and accompanying documents must show the investor has already invested or otherwise irrevocably committed his or her capital to the project. Necessary evidence may include bank statements, promissory notes, loan certificates, security agreements, and/or other evidence that the necessary amount of capital has been invested.

Furthermore, documentation must be provided with Form I-526 that shows the invested capital was obtained lawfully. Acceptable evidence includes pay stubs from income used in the investment, bank account statements, five years of tax returns, and/or securities statements.

In addition to the documentation related to the investment capital itself, the application must include documentation that demonstrates the new commercial enterprise is eligible for the EB-5 program. To this end, the application should include any state business certificates, articles of incorporation, merger or consolidation certificates, joint venture agreements, and/or limited partnership agreements.

The USCIS also requires evidence that the new commercial enterprise will create the necessary number of jobs. Appropriate evidence includes a comprehensive business plan with a hiring timetable and an economic report that credibly demonstrates through accepted methodologies that the employment requirement will be met.

Finally, Form I-526 must be accompanied by evidence that the investor will be sufficiently engaged with the daily management of the new commercial enterprise. Accepted evidence includes corporate documents and a description of the investor’s responsibilities.

Filing Form I-526

Usually, immigration attorneys compile and submit I-526 petitions on behalf of their clients. The USCIS fee for filing Form I-526 is $3,675.

The petition is sent to the USCIS Dallas Lockbox Facility for processing. If any information is missing or inadequate, the USCIS will send a Request for Evidence (RFE), which will delay the approval of the petition. The average processing time for Form I-526 is approximately 31.5 to 52 months, but processing times do vary.

Once an investor’s I-526 is approved, he or she can apply for permanent resident status. If already in the United States under a different status, the investor will file Form I-485 to adjust his or her status. Applicants living abroad must file Form DS-260.