The I-526 petition is the first step to initiating the EB-5 process with United States Citizenship and Immigration Services (USCIS). In an I-526 petition, an EB-5 investor outlines details about themselves and their chosen EB-5 project, including the likelihood of the new commercial enterprise (NCE) to create at least 10 new full-time jobs for U.S. workers with the invested capital. If USCIS approves the investor, they are deemed eligible for an EB-5 visa and may apply for conditional permanent resident status for themselves, their spouse, and any unmarried children below the age of 21.
Foreign nationals who have committed to making an EB-5 investment, whether for $1.8 million or the reduced $900,000 amount for targeted employment area (TEA) projects, must compile and submit an I-526 petition to formally launch their EB-5 application process. Although the precise procedure differs from project to project and can be found outlined in a given project’s documentation, EB-5 investors generally file their I-526 petition after transferring their EB-5 capital to a designated escrow account. Should an investor receive a denial on their EB-5 petition, the capital in the escrow account is returned to them.
Once an EB-5 investor has consulted an immigration lawyer about the suitability of the EB-5 program for their goals, conducted meticulous due diligence to select a trustworthy EB-5 project with low immigration and financial risk, and tentatively committed their EB-5 funds to the NCE in the form of a transfer to the escrow account, it’s time for them to put together their I-526 petition. The first step is to locate the latest version of the form on the USCIS website. The next step is to carefully fill out the form and gather the accompanying documentation, which can be time-consuming.
Required Information for Form I-526
Those making an EB5 investment are required to divulge substantial amounts of information about themselves, their investment, and their family. Below are a few examples of the information EB-5 investors must include in their I-526 petition:
- Personal details, such as country of citizenship, current and past addresses, and employment history
- Personal information about the applicant’s spouse and dependent children
- Details about present U.S. immigration status, for those applying domestically as a holder of a different visa
- Information about previous U.S. immigration dealings and visas the investor has received or applied for
- Information regarding the EB-5 investment
Most of this information should be easy for an EB-5 investor to obtain and include in an I-526 petition. Far more challenging is collecting the supplementary documentation, including proof of the lawful sources of the EB-5 capital.
Collecting the Required Documentation for an I-526 Petition
Applicants are required to submit substantial documentation to support their EB-5 investment. While the most daunting and time-consuming is usually the source-of-funds documentation, which demonstrate the legality of an investor’s EB-5 capital, investors must also include documentation on their chosen EB-5 project, including financial reports and hiring timetables to showcase the expectation of creating 10 new full-time jobs for U.S. workers during the investor’s two-year conditional permanent residency window. If the project is in a TEA, the investor must also append the appropriate documentation to prove the project’s status as being in a high-unemployment or rural TEA.
Gathering the source-of-funds documentation can be tricky, depending on the type of capital involved. Applicants may derive their EB5 investment from any number of sources, including loans, inheritance money, and donations, but in all cases, the lawful sources of the funds must be demonstrated. If the capital is derived from a gift, the investor must provide a note outlining the donation and waiving the recipient’s obligation to repay the money, and the donor’s lawful acquisition of the funds must be documented.
EB-5 investors are urged to consult an experienced EB-5 immigration attorney about the source-of-funds requirement. Some fund sources are significantly easier to trace than others, so an EB-5 immigration lawyer can help an investor determine which of their fund sources are best suited to the EB-5 program. In addition to facilitating the source-of-funds requirement, working with an EB-5 immigration expert can also help an investor compile a comprehensive I-526 petition that includes all the required information and documentation, reducing the likelihood of receiving a request for evidence (RFE) or notice of intent to deny (NOID). Collaborating with an EB-5 immigration attorney can put EB-5 investors that much closer to their dream of a life of freedom in the United States.