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-526E with the United States Citizenship and Immigration Services (USCIS).
Form I-526E Basics
Filing Form I-526E
What Happens Upon Approval?
Delays and Rejections
Where to Start
Form I-526E Basics
The foreign investor submits Form I-526E, Immigrant Petition by a Regional Center Investor, to the USCIS, in order to demonstrate compliance with the EB-5 program.
The investor’s I-526E 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.
What is the Minimum EB-5 Investment?
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 $800,000.
Projects located anywhere else require a minimum investment of $1,050,000.
What Are the EB-5 Eligibility Requirements?
For a project to be eligible, it must be a new commercial enterprise (NCE) 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 investor’s petition must also clearly demonstrate that the invested funds came from a lawful source.
The applicant’s I-526E petition must also demonstrate the foreign investor is sufficiently engaged in the day-to-day management of the new commercial enterprise.
Form I-526 or I-526E?
Nearly all immigrant investors file Form I-526E.
This is because nearly all immigrant investors invest in an NCE through a USCIS-approved regional center. The regional center program is the most popular investment option in the industry.
On March 15th, 2022, Congress authorized the EB-5 Reform and Integrity Act of 2022. Among many welcome changes to speed EB-5 processing, this act divided the EB-5 immigrant petition into two forms, Form I-526 and Form I-526E:
- Form I-526, Immigrant Petition by a Standalone Investor, is for direct investors.
- Form I-526E, Immigrant Petition by a Regional Center Investor, is for immigrant investors who invest through the USCIS-approved regional center program.
Very few investors choose the direct investment route, as it comes with severe limitations, especially regarding what constitutes eligible job creation.
In fact, a 2018 study found that 94% of all successful EB-5 visas were awarded to regional center investors, those who file Form I-526E.
Who Submits Form I-526E to USCIS?
Immigration attorneys often prepare Form I-526E on behalf of EB-5 investors.
The I-526E petition is a complicated and vital step in the EB-5 visa process, involving scores of supporting documentation specific to each investor and each NCE.
An immigration attorney is the best person to ensure proper compliance with USCIS when filing an I-526E petition.
For a regional center investor, the I-526E petition must be accompanied by documentation that demonstrates he or she has met all the criteria of the EB-5 program.
Evidence of Investment
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 the following:
- Bank statements
- Promissory notes
- Loan certificates
- Security agreements
- Escrow account records
- Other evidence that the necessary amount of capital has been invested.
Evidence of Lawfully-Sourced Funds
Furthermore, documentation must be provided with Form I-526E that shows the invested capital was obtained lawfully. Acceptable evidence includes:
- Payment records of income used in the investment
- Bank account statements
- Seven years of tax returns
- Securities statements
If the invested capital was borrowed or a gift, immigrant investors must submit evidence that the donor or lender obtained the funds legally and gifted them in good faith.
This is one of the most challenging and important aspects of Form I-526E.
Evidence of NCE Eligibility
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 of the following, as applicable:
- State business certificates
- Articles of incorporation
- Merger or consolidation certificates
- Joint venture agreements
- Limited partnership agreements
Evidence of Job Creation
The USCIS also requires evidence that the new commercial enterprise will create the necessary number of jobs. Appropriate evidence includes:
- Comprehensive business plan, with
- a hiring timetable
- And an economic report that credibly demonstrates through accepted methodologies that the employment requirement will be met.
- Payroll records
- Employee tax forms, such as Form I-9
- Other hiring documentation, if employees are already hired.
Evidence of Investor Involvement
Finally, Form I-526E 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
- A description of the investor’s responsibilities (e.g., a limited partner)
Filing Form I-526E
Forms I-526 and I-526E are complex petitions to adjudicate, especially given the volume of supporting documentation required. Each application requires special consideration, which takes time.
Furthermore, USCIS processing times across all petitions have ballooned since the COVID-19 pandemic. While Congress has taken measures to alleviate this long wait for adjudication, immigrant investors should still be prepared for a wait of about two years. However, some investors receive a USCIS adjudication in less time.
Where to File
Usually, immigration attorneys compile and submit I-526E petitions on behalf of their clients.
An immigration attorney will send the immigrant investor’s petition to the USCIS Dallas Lockbox Facility for processing.
USCIS mailing addresses are subject to change.
The USCIS fee for filing Form I-526E is $3,675.
This filing fee is nonrefundable, regardless of whether or not USCIS approves a given investor’s petition.
The EB-5 Reform and Integrity Act of 2022 also requires regional center investors to send an additional, separate amount of $1,000.
This additional fee goes to the U.S. Treasury’s EB-5 Integrity Fund, which helps USCIS to adjudicate more I-526E petitions and investigate any compliance issues with regional centers and/or investors alike.
An $85 biometrics services fee is also required.
The biometrics services fee is due at the time of filing, whether or not USCIS ultimately requires an individual investor to appear for a biometrics services interview– for fingerprinting, background checks, photographs, etc.
Money orders or checks should be made payable to “U.S. Department of Homeland Security”.
What Happens Upon Approval?
Once an investor’s I-526E is approved, he or she can apply for permanent resident status.
Concurrent Filing for U.S. Residents
If an investor is already lawfully residing in the United States under a different status, the investor can file Form I-485 to adjust their visa status.
As of 2022, USCIS now allows concurrent filing of Form I-526E and Form I-485.
This welcome change means that investors residing in the U.S. can eliminate an additional waiting period for petition adjudication, by submitting both forms at the same time. Doing so adjusts their immigration status to “pending”.
Investors Living Abroad
After I-526E approval, applicants living abroad must file Form DS-260, Immigrant Visa Electronic Application, in order to be permitted into the country as a conditional permanent resident.
Delays and Rejections
While many investors wait for about two years for adjudication of Form I-526E,, further delays can happen. USCIS might also reject the application.
For instance, if a check for a filing fee is returned as unpayable twice, USCIS will reject an investor’s entire I-526E petition. The investor will also be charged a returned check fee.
Requests for Evidence
If any information is missing or inadequate, the USCIS will send a request for evidence (RFE), which will delay the approval of the petition.
An RFE is not an outright denial. But responding to one can require the professional help of an EB-5 consultant, such as the experts at EB5AN.
Common reasons for RFEs include:
- Inaccurate financial projections
- Inconsistencies in the business pan
- Lack of third-party evidence demonstrating the feasibility of the project
- Lack of detail about the NCE’s business plan
- Lack of proof that the NCE has the potential to operate successfully, and thus not create and sustain the required 10 full-time jobs.
The response time for an RFE is typically between 30 to 90 days.
If an immigrant investor’s I-526E adjudication is taking longer than 93% of other petitions, USCIS allows investors to submit an inquiry with the Immigrant Investor Program Office.
Investors can always check the status of their individual I-526E petition on the USCIS website, as processing times can vary significantly.
Where to Start
With the dual help of a dedicated EB-5 professional from EB5AN and a licensed immigration attorney, immigrant investors can help ensure that their I-526E petitions are adjudicated and approved in as timely a manner as possible.
Although the supporting documentation and wait times can seem daunting, the team at EB5AN has helped thousands of immigrant investors just like you to achieve their family’s dreams of living permanently in the United States.
Reach out to an EB-5 professional at EB5AN today to begin your family’s journey.