Any foreign national interested in the EB-5 Immigrant Investor Program as a relatively quick and simple way to gain U.S. permanent residency rights for themselves and their qualifying family members should familiarize themselves with the I-526 petition. This important petition is an immigrant investor’s first contact with United States Citizenship and Immigration Services (USCIS), and it’s essential an investor understands the many nuances of the application to avoid jeopardizing the success of their EB-5 investment. Careful preparation can help an investor avoid requests for evidence (RFEs) and delays, accelerating their permanent move to the United States.
What’s Involved in an I-526 Petition?
Of course, an investor needs to fill out USCIS’s Form I-526, specifying various information about themselves, their accompanying family members, and the project they have chosen for their EB5 investment. But the form is only the beginning—investors must also submit a mountain of supplementary documents with their I-526 petition.
Anyone making an EB-5 investment must append documentation on the EB-5 project they are investing in—this can include a business plan, hiring schedule, market analysis, any required licenses or certification, and more. In essence, USCIS must be satisfied that the project is viable and will indeed create the 10 full-time jobs necessary for an EB5 investment. It’s important to note that even if a project has I-924 exemplar status, meaning the regional center has already submitted and received approval for the project documents, investors must still submit the project documentation in their personal I-526 petitions. Those investing through an EB-5 regional center will generally be provided with the required papers.
Anyone making an EB-5 investment in a targeted employment area (TEA) project also needs to include accompanying documents that justify the project’s TEA status. TEA projects are eligible for a lower minimum investment amount ($900,000 as opposed to $1.8 million), rendering them highly sought-after EB-5 projects. The documents needed to prove TEA eligibility depend on the type of TEA one is making an EB-5 investment in—high-unemployment TEAs and rural TEAs are both possible. High-unemployment TEA projects are more common but more difficult to document. Regional centers can often help their investors with the TEA paperwork.
Finally—and this is the trickiest part—all investors must provide comprehensive proof of the lawful sources of their EB5 investment capital. USCIS accepts funds from any number of sources, from employment income, business income, and capital gains to loans, gifts, and inheritance, but in all cases, investors must demonstrate that the capital came into their possession legally.
The source-of-funds requirement is far more in depth than investors often initially assume. For example, in the case of gifted or inherited EB-5 investment capital, not only must investors prove that they lawfully received the gift or inheritance, but they must also demonstrate that the donor or decedent legally obtained the funds. In the case of capital gains—such as through the sale of real estate—investors must show how they obtained the funds used to originally purchase the asset. For business income, evidence documenting the legal obtainment of the initial seed capital is required.
The complicated nature of the I-526 petition, particularly the source-of-funds documentation, means investors would be wise to hire an immigration lawyer to help guide them. Immigration attorneys who specialize in EB-5 can expertly guide an investor through the I-526 process.
What Supporting Documents Are Necessary for an I-526 Petition?
Once you’ve selected your EB-5 project and committed your capital to the project’s escrow account, it’s time to dive into the I-526 petition. Here’s a quick overview of the information and documents you’ll need for this EB5 investment application.
Form I-526 asks investors to provide personal information—both basic information such as age, citizenship, and place of birth, as well as more detailed information, such as personal history. For example, USCIS uses Form I-526 to learn an investor’s employment and address history throughout the past five years. If any dependents are accompanying the investor—their spouse or unmarried children under the age of 21—they must also provide information on these family members.
Investors must provide information on the project they have chosen to make an EB-5 investment in. The required documents include the above-mentioned project paperwork, such as the business plan and hiring schedule, as well as its business address. If the project is in a TEA, the investor must also include the relevant population or unemployment data to justify this designation. Finally, if the investor is working with an EB-5 regional center—and most EB-5 investors do—they must provide information on the regional center as well.
The source-of-funds requirement is generally considered the most difficult part of the I-526 process. Precisely what documents an investor might require to prove the lawful sources of their EB5 investment capital varies depending on the investor’s personal situation, including how they sourced the funds and in what country, and the process is more difficult for some investors than others.
Investors should work with an experienced EB-5 immigration lawyer to determine the best fund sources to use. A competent immigration attorney can streamline the process as much as possible and minimize the chances of receiving an RFE, causing delays in the EB-5 investment process. Documents could include bank statements, tax returns, employment records, investment records, property deeds, loan documentation, gift records, accounting records, and more.
Managerial Involvement Documentation
USCIS requires investors to be actively involved in the project in which they make an EB5 investment, but what exactly this entails depends on the particular project. While direct EB-5 investors typically have to engage in day-to-day management work, regional center investors usually just sign on as limited partners, vote on pertinent matters, and call it a day. Such a setup allows investors to live anywhere in the United States—even far away from their project—but documentation to prove their policy-making role is always required.
Unless an investor’s documents are in English, they will need to obtain certified translations for them. Alongside the translator’s signature certifying the translation, investors must include the name and contact information of their translator.