Introduced in 1990, the EB-5 Immigrant Investor Program offers foreign investors worldwide something that millions dream of—a life in the United States. In exchange for qualifying investments in new commercial enterprises in the United States, wealthy foreign nationals and their families can obtain green cards and, eventually, if they wish, U.S. citizenship.
While the EB-5 process is quite complex, it can roughly be broken down into eight main steps.
Step 1: Conduct Initial Research
As a potential EB-5 investor, you must consider whether you are eligible for the program and whether it aligns with your goals. Because of the complexity of the EB-5 program and U.S. immigration law, we recommend that you engage the services of an experienced immigration attorney in this research.
If you currently reside in the United States on a different visa and wish to participate in the EB-5 program, you must be an accredited investor. To qualify as an accredited investor, you must either have earned $200,000 for two consecutive years and expect the same level of income for the current year, have earned $300,000 between you and your spouse for two consecutive years and expect the same level of income for the current year, or have a net worth of at least $1 million, excluding your primary residence, between you and your spouse. It is recommended to include in your I-526 petition a letter from your accountant or immigration attorney verifying your accredited investor status.
It is also important to consider whether applicants from your country are subject to visa backlogs. Visa backlogs occur when EB-5 demand from a given country exceeds the number of visas available for that country, and it can result in visa retrogression. You can find up-to-date information about visa availability for your country by checking the monthly Visa Bulletin issued by the State Department.
Step 2: Find One or More Potential Projects
Once you’ve determined that the EB-5 program aligns with your goals, you need to look for a suitable EB-5 project. A good EB-5 project poses both low financial risk and low immigration risk.
Another factor you should consider when looking for a suitable EB-5 project is its targeted employment area (TEA) designation. EB-5 projects in TEAs, defined as high-unemployment urban areas or rural areas of fewer than 20,000 inhabitants, are subject to a minimum investment amount of $900,000, half of the otherwise required $1.8 million.
Finally, you must determine whether you wish to invest directly or via an EB-5 regional center. Investors who invest via regional centers have limited management responsibilities, which is ideal for those who wish to invest solely to receive a green card. Another major benefit of regional center investment is the relaxed job creation requirements. To be eligible for a green card, EB-5 investors must create at least 10 new full-time jobs with their investment, but projects working with regional centers can count indirect and induced jobs toward the job count.
Step 3: Conduct Careful Due Diligence on Your Preferred Project
After you’ve selected a project, you will need to conduct due diligence to make sure you’re not putting yourself at financial or immigration risk. To comprehensively evaluate a potential investment project’s financial and immigration risk, you can use our free EB-5 Project Risk Assessment Questionnaire.
To access an EB-5 project’s documents, potential EB-5 investors typically have to sign a confidentiality agreement. Signing a confidentiality agreement allows investors to read a project’s documentation without an obligation to invest in it.
While it is impossible to determine with 100% certainty whether an investment in an EB-5 project will be successful, there are some key indicators to look for. Make sure the prospective project is highly transparent and complies with the relevant EB-5 rules, uses objective third parties to evaluate and assess its assumptions and financial analyses, and predicts job creation numbers well above the requirements of the EB-5 program.
Step 4: Invest the Necessary Capital in the EB-5 Project
Once you’ve selected a suitable project and thoroughly assessed it for risks, you can finally concretely begin your investment. Before handing over your capital, consult with your immigration attorney to make sure you and the project developer are following all applicable laws and regulations. Then, carry out the investment as outlined in the project documents. In many cases, your investment will initially be stored in an escrow account.
Depending on where you reside, the difficulty of this process may differ. For example, Indian nationals are restricted by limitations on capital outflows imposed by the Reserve Bank of India, which complicates the investment process. Often, Indian investors must funnel their investments through foreign banks.
Step 5: Work with Your Immigration Attorney to Compile Personal Documents
Once your EB-5 investment is in escrow, you must file an I-526 petition with United States Citizenship and Investment Services (USCIS) to officially begin the EB-5 process. While it is possible to complete and file the form yourself, it is highly recommended that you seek the assistance of an immigration attorney.
In addition to documentation related to the project and its financial projections, you must include in your I-526 petition copies of personal official documents, such as your passport, birth certificate, and marriage certificate, as well as evidence detailing the source of your investment funds.
Depending on your country of origin, your personal official documents may also need to be translated. In terms of proving the source of your investment capital, a number of different documents are acceptable, including bank documents, employment and wage documents, and documentation of gifts.
Step 6: File Form I-526, Immigrant Petition for Alien Entrepreneur
After you complete Form I-526, the next step is, naturally, to submit it to USCIS. Upon receipt, USCIS will send you a letter notifying you that your petition was successfully filed. The receipt notification will also display your priority date, which determines when you are eligible to apply for a visa.
Once your I-526 petition is approved, you may apply for conditional permanent resident status as soon as a visa becomes available for you. If you are from a country not subject to visa backlogs or retrogression, you may apply for your visa immediately upon I-526 approval. Chinese, Indian, and Vietnamese EB-5 investors may have to wait months or years for a visa to become available.
In the past, when I-526 petitions were processed on a first-in-first-out basis, it typically took around two years until an EB-5 investor received I-526 approval. This has changed with the new visa availability approach, where petitions from countries with available visas are prioritized. This speeds up processing times for investors from countries like Canada, the United Kingdom, and Japan but pushes them back for investors from China, India, and Vietnam.
Step 7: Apply for Conditional Legal Permanent Resident Status
Once you receive I-526 approval and your priority date for your country is current, you may finally apply for your EB-5 green card. The process differs depending on whether you are currently residing inside the United States on a different visa or in your country of origin.
If you are already living in the United States, you will need to file Form I-485 to adjust your resident status. Even if your original resident status expires while your I-485 petition is pending approval, you are permitted to remain in the United States.
If you are living in your home country, you must file Form DS-260 via your local U.S. consulate. Following the processing of your application, you will be required to appear at your local consulate for an immigration interview.
After you complete the visa application process, you will receive a two-year conditional permanent residence card.
Step 8: File Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status
The final step in the EB-5 process is to file Form I-829 to remove the conditions from your permanent resident status. You must submit an I-829 petition within the final 90 days of your conditional permanent residency, and on the form, you must demonstrate that your investment has remained at risk for the entire EB-5 process and that it has created the required 10 full-time jobs for U.S. citizens or residents.
Upon approval of the I-829 petition, you will receive your permanent green card. With that, the long, complicated EB-5 process is finally over, and you may enjoy a rich, promising life with your family in the United States.
