EB-5 (Investment Immigration)
U.S. Congress created the EB-5 Program in 1990 to stimulate the economy through job creation and capital investment by foreign investors. USCIS administers the EB-5 Program. Under this program, investors (and their spouses and unmarried children under 21) are eligible to apply for a Green Card if:
- they individually made investment of $1.05 million or a minimum of $800,000 in a TEA (explained below);
- investment is typically through a USA Regional Center project or in a new business directly; and
- investment creates 10 full time jobs for US workers and must be maintained for a minimum of 2 years.
There are 10,000 Green Cards available nationwide each year for qualified immigrant investors, with each country subject to a 7% cap. The regulation requires a capital investment of 1.05 million for all areas, except in the rural area and high unemployment area also known as “targeted employment area” (TEA) where a lowered investment of $800,000 could be made. TEA is defined as (a) rural area - any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more; or (b) area with unemployment 150% of the national average.
Under the EB-5 Reform and Integrity Act of 2022 (the “2022 Reform Act”), 32% of the 10,000 annual EB-5 visa quota is set aside for three categories of capital investment: (i) 20% of visas is reserved for investors in rural TEAs, (ii) 10% for investors in high-unemployment TEAs, and (iii) the remaining 2% is reserved for public infrastructure projects. If any of the set-aside visas go unused by the end of the fiscal year, they will carry over to the next year in the same categories. If unused by the end of that succeeding fiscal year, they will no longer be reserved. Instead, they will be added to the total EB-5 visa quota for the following fiscal year. These set-aside visa categories allow new investors to skip the existing long queue and are extremely meaningful for new investors from mainland China, as they can escape the current visa backlog and have their immigration journey accomplished within one or two years, instead of ten years.
Under the 2022 Reform Act, investors and their family already legally in the U.S. and eligible for a visa number may concurrently file applications for adjustment of status (avoiding consular visa processing) along with or while awaiting adjudication of the investor's I-526 petition. EB-5 investors now join other employment-based immigrants in enjoying, under INA section 245(k), forgiveness of up to 180 days of status violations when they apply for adjustment of status.
Under the SEC rules, an individual, to invest in an EB-5 Regional Center project, must be an accredited investor (due to Regulation D exemption). An accredited investor is a person who either
- has a net worth of more than $1 million, either alone or jointly with a spouse (the value of a primary residence cannot be included in the net worth); or
- has an annual earned income of more than $200,000 individually, or more than $300,000 jointly with a spouse, in each of the preceding two years, and expects that same amount of income, individually or jointly, for the current year.
For investors outside the U.S., immigration via EB-5 program involves following steps:
- Select a regional center project or a direct investment project, and then make investment. It is important for a prospective investor to examine the project to ensure it is a qualified EB-5 investment project. It is also important to choose an EB-5 project that has the potential to create the required jobs.
- File the I-526 petition. After an EB-5 investment is made, a foreign investor must submit Form I-526 to USCIS. In this petition, the investor needs to establish that (a) he/she made an investment in a qualifying new commercial enterprise, (b) the funds used for the investment are from a legal source, and (c) the investment will remain at risk (investment return is not guaranteed).
- Wait for available visa number. Once USCIS approves the I-526 petition, the petition will be sent to the Department of State’s National Visa Center (NVC) and it will remain at the NVC pending the issuance of an available visa number (long queue but as we discussed before, new investors in the set-aside categories do not have to wait per the current visa bulletin). Once an immigrant visa number becomes available, NVC will notify the investor and collect the filing fee.
- Submit DS-260 application. Upon receipt of the filing fee, NVC will provide a bar code with which the investor may access and submit the DS-260 application on-line for him and his dependents. Once the NVC is satisfied with the submitted DS-260 application, NVC will send the file to the U.S. consulate in the investor’s home country and assign an interview date for the investor.
- Take medical examination. Before attending the interview, the investor (and his/her family as well) need to take the medical examination as instructed by NVC. On the interview date, the investor needs to bring the medical examination result (in a sealed envelope) to the consular officer at the U.S. Consulate.
- Obtain conditional permanent residency. The investor who passes the interview will be granted an immigrant visa which generally will expire in six months. Once the investor enters the U.S. within such 6 months, he/she will receive a two-year conditional permanent resident card. During this period, the investor and his/her family may live and work in the United States. The EB-5 project needs to progress according to the plans laid out in the I-526 petition. This includes keeping the EB-5 investment funds at risk and creating the required jobs within such two years.
- File the I-829 petition. The final stage of the EB-5 investment process is to file Form I-829. An investor must file Form I-829 during the last 90 days of their conditional residency. In this petition, the investor needs to establish that their EB-5 investment fulfilled USCIS requirements, particularly the job creation threshold. After an I-829 petition is approved by USCIS, the investor will be granted permanent resident status in the United States.
Going through any immigration process can be complicated and full of opportunities to make costly mistakes. If you intend to invest $800,000 or even more than $1,000,000 for an EB-5 program, you want to make sure that you are doing everything right in the first place. The best strategy is to hire a licensed attorney to help you file the petition, advise your strategy, and help you avoid and deal with any possible obstacles that may come up along your journey.
Polaris Law Group has an experienced team of immigration lawyers, and our goal is to help investors and entrepreneurs to secure their permanent residency in the United States through the EB-5 process. If you are concerned about your EB-5 processing time or any other aspect of this category, we can help.
DISCLAIMER: This article includes general information and interpretation of the law. The materials here are for information purpose only and may not reflect the most current development of immigration law. The materials here are not intended, and must not be taken, as legal advice on any particular facts or circumstances. You should contact an attorney for advice on specific legal issues or problems.
