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The Petition Process of the EB-5 Program


The EB-5 Immigrant Investor Program is famous for offering foreign nationals the opportunity to immigrate permanently to the United States in exchange for an EB-5 investment in a qualifying U.S. business, termed “new commercial enterprise” (NCE) in the EB-5 world. Though the EB5 investment journey may be quicker and easier than many other routes of immigration, it’s still a lengthy process that demands significant criteria and paperwork from participants. An EB-5 investment is characterized by a few key petitions, but meeting the requirements for those petitions can be difficult and time-consuming.

Form I-526: The Initial Petition

Form I-526 is what officially kicks off an applicant’s EB-5 investment journey. This is an investor’s first interaction with United States Citizenship and Immigration Services (USCIS). But investors must dedicate significant time and effort to preparing the I-526 petition, including setting up their EB-5 investment itself. An investor should carefully consider their investment options and choose an EB-5 project that aligns with their needs and goals. They should also conduct due diligence on prospective regional centers, if they, like most applicants, are making an EB5 investment through a regional center.

Prospective EB-5 investors are strongly encouraged to consult with an experienced EB-5 immigration attorney to discuss their individual needs, goals, and circumstances. An EB-5 lawyer can help an investor determine the best type of EB-5 investment for them and their family and guide them through the preparation process for the I-526 petition. Most importantly, they can help investors navigate the fund-sourcing aspect of the petition, generally cited as the most challenging and time-consuming aspect.

USCIS needs to know that any EB-5 investment funds it handles have come from lawful sources. Thus, investors are required to present proof of the lawful sources of their EB5 investment capital. EB-5 capital can come from any number of sources—including multiple sources—as long as the investor can prove its legality. USCIS demands an extremely rigorous fund-sourcing process—for example, showing the sale of a real estate asset alone isn’t sufficient. The investor must also show how they sourced the money to originally purchase the asset as well.

When the I-526 petition is finally compiled, the investor pays the processing fee and files it with USCIS. Processing times vary, but typically, it takes between two and five years for I-526 adjudication, depending on the investor’s country of citizenship.

After I-526 Approval: Obtaining Permanent Residency

Simply obtaining I-526 approval does not automatically grant a foreign national and their immediate family members permanent resident status. Instead, EB-5 investment participants must undertake another process to obtain the status, which further delays their relocation to the United States.

If an applicant has made their EB5 investment from overseas—as most EB-5 investors do—they must submit Form DS-260 to the U.S. Department of State (DOS). DOS verifies the investor’s admissibility and invites them and any family members accompanying them to the United States to schedule a visa interview at their local U.S. embassy or consulate. After a successful interview, an applicant is granted access to the United States, and their two-year conditional permanent residency starts upon landing in the United States.

Foreign nationals already residing in the United States under a different visa status are also eligible to make an EB-5 investment, and while their journey is generally identical to overseas applicants, it does differ at the post-I-526 stage. Domestic investors do not go through consular processing—instead, they file Form I-485 with USCIS to adjust their immigration status. Upon approval of their I-485 petition, their conditional permanent residency period begins.

Form I-829: The Final Petition

Form I-829 can only be filed within the final 90 days of an EB5 investment participant’s two-year conditional permanent residency period. The purpose of the petition is to remove the conditions and grant the petitioner unrestricted permanent residency rights in the United States, and to have these conditions removed, an investor must prove that their EB-5 investment did, in fact, meet all the criteria of the EB-5 program.

An investor must satisfy several criteria for a successful EB-5 investment, including maintaining the EB5 investment capital at risk throughout the entire investment period and creating a minimum of 10 new jobs for U.S. workers. Those who make EB-5 investments directly in an NCE must present 10 new jobs on the payroll of the NCE, but those who invest through a regional center need only present a third-party economic calculation using approved methodology that indicates at least 10 direct, indirect, or induced jobs. The I-829 petition must be submitted with evidence to support the fulfillment of these criteria, as well as the filing fee and biometrics fee. If the I-829 petition is approved, the investor and any included dependents have the conditions removed and become fully fledged permanent residents of the United States.