- What is EB-5 visa?
- Who May Apply for EB-5?
The USA EB5 Visa is granted to immigrants under the EB-5 Immigrant Investor Program launched in 1990. The U.S. government began the EB-5 investor visa program to attract foreign investment for job creation and economic growth. Foreign nationals may obtain permanent U.S. residency by making a capital investment in the United States. The investment should create a new commercial enterprise or revive a troubled business and lead to job creation.
Annually, the U.S. government grants up to 10000 EB-5 visas to immigrants. Applicants are required to make an “at-risk” capital investment between 500,000 USD to 1,000,000 USD in a new commercial enterprise in the USA.
Investors who can invest less than 1,000,000USD may choose to invest in a targeted employment area or TEA. TEA is a rural area in the United States or an area with an unemployment rate of at least 1.5 times the national average. TEAs are defined by the individual State governments.
Applicant criteria for the EB-5 visa are reasonably straightforward. Any person who can –
- Invest the required amount into the American Economy
- Provide proof that the capital was legally earned
- Satisfy the medical and criminal eligibility requirements
is eligible to apply for the EB-5 visa. Apart from the above-stated criteria, there are no other language, business, or education requirements to be fulfilled.
Primary applicants and all their dependents receive permanent residency under the EB-5 visa. If the applicant is the husband, then the wife and any children under twenty-one years will receive a green card. Adopted children may also be included in the family. Women who are primary applicants may consist of their children as dependents. Siblings are not considered a family unit and cannot apply without the father and the mother.
Sometimes, the country has a backlog, also known as ‘retrogression’. In such a case, there is a possibility of ageing out. Therefore, the minimum age will have to be lower for a family application. For individual applications, there are no age limits.
A new commercial enterprise is defined as conducting a lawful business for profit. It includes the following types of companies –
- A sole proprietorship
- Holding company
- Joint venture
- Business trust
- Other entities – publicly or privately owned
The above definition also includes any holding company with wholly-owned subsidiaries. Each subsidiary should be conducting a lawful business for profit.
There are two ways to make the USA EB-5 visa investment. The first is to invest in a new commercial enterprise directly. This investment is also known as a Direct EB-5 Project.
The second way is to invest in an EB-5regional centre. An EB-5 regional centre is an USCIS-designated organization that channels foreign investments to projects that fall under USCIS-approved locations and industries. It is considered beneficial to invest through regional centres as it lightens the burden of job creation, and both direct and indirect jobs are counted.
Here are some significant points of difference between a regional centre and a direct EB-5 project
- TIME: In a direct EB-5 project, the responsibility of business planning and completing the documentation falls on the investor. Applicants need to invest much time before they actually invest.
- FLEXIBILITY: Direct EB-5 projects need active involvement from the applicant. They even need to live and work near the project location. With regional centre investments, applicants can live and work anywhere in the USA.
- JOB CREATION: For an applicant to be eligible, they need to create up to 10 jobs directly through their investment. The regional centre program allows for direct and induced jobs.
- ADOPTION: Due to the differences cited above, only 5% of applicants opt for the Direct EB-5 program. In comparison, 95% choose to go with the regional centre program.
No. The EB-5 visa is the only avenue for obtaining a green card through investment in the USA. All other investment-related visas are temporary non-immigrant visas.
For those looking for a lawful permanent residency in the United States, the EB-5 visa is the most relevant opportunity. Non-immigrant visas such as H, E, and L are valid only for a limited time and are challenging to obtain. While the USA EB-5 visa helps you get a green card.
Upon approval, the EB-5 investment visa holds a plethora of benefits for the investor. Some of them are listed below –
- Permanent Residence: The EB-5 visa grants permanent lawful residence to the applicant and their immediate family.
- Low Cost: 500,000USD may seem like a considerable amount to pay in one go. But it offers permanent residence in the United States. And not just for you, but all your dependents and their future generations.
- Healthcare: EB-5 investor visa helps you avail the same world-class healthcare available to American citizens.
- Personal and Professional Freedom & Security: EB-5 visa gives you the freedom to live, work and retire anywhere in the United States.
- Education: Those granted the EB-5 visa qualify for state and federal financial aid and pay reduced tuition at public universities.
- U.S. Citizenship: Immigrants granted a Green Card may apply for U.S. citizenship after five years.
- Passive Investment: When investing through an EB-5 regional centre, applicants need not manage every aspect of the project and can be passive investors.
- Reduces Uncertainty: The EB-5 visa processing has the least backlogs and does not rely on lotteries like other visa options such as H1-B, F1, and L1.
The required minimum investment for an EB-5 investor visa depends on the area where the applicant wants to invest. The required minimum investments are –
- In a rural area: 500,000 USD
- In a targeted employment area (TEA): 500,000 USD
- In other areas: 1,000,000 USD
The EB-5 Program is administered by the United States Citizenship and Immigration Services (USCIS).
The United States Citizenship and Immigration Services or USCIS are a federal government agency in the U.S. that processes all immigration and visa documentation.
Getting an EB-5 visa in the USA is a process that calls for planning and careful execution by applicants. Here are the steps to follow –
- Locating an EB-5 Project: Find a suitable project to invest in. The investment should be acceptable to the USCIS as a new commercial enterprise or through a regional centre.
- Capital Investment & I-526 Petition: The next step is making the capital investment through an escrow agent. Then, an immigration attorney provides proof of investment by filing an I-526 petition with the USCIS. Within 12 to 18 months, the USCIS either approves or denies the I-526 petition and informs the applicant. In case the petition is denied, the regional centre refunds the investment amount.
- 2-Year Conditional Permanent Residence: If the I-526 petition is approved, the investor must become a conditional resident of the United States. To become a conditional resident –
- The EB-5 investor must file Form I-485 to gain conditional residence if the lawful status is already granted.
- If the lawful status is yet to be granted to the investor, they must submit Form DS-360 to the National Visa Centre.
- In 6 to 12 months, an immigrant visa will be issued by the U.S. Department of state.
- During the 2-year conditional residence period, the EB-5 investor cannot live outside the United States for more than one year.
- Unconditional Permanent Residency & I-829 Petition: 90 days before the anniversary of receiving conditional residency, the investor may file the I-829 petition with the USCIS. Within six to eight months from there, the USCIS issues a permanent green card.
A lawful permanent resident can lose their citizenship or EB-5 green card if they are found guilty of certain crimes. If a green card holder is naturalized, they are tried like any other citizen. However, submitting misleading information or false statements about past criminal records or immigration history, especially at the time of naturalization or immigration application, may lead to loss of citizenship.
No country in the world is excluded from the eligibility for the EB-5 visa program.
The process for filing the I-526 petition remains the same for everyone. After the I-526 is approved, you will need to file an I-485 application to adjust the status to Permanent Resident. If you are already in the U.S. on another visa, you may file the I-526 petition just like everyone else. If you are not in the U.S. already, file a petition for a green card with your local U.S. consulate.
Yes. It is possible to take out a loan to fund an EB-5 investment, but the investor must adhere to many strict requirements regarding the loan. The EB-5 investor may not offer any assets of the EB-5 investment entity as security for the loan or offer their own share in the EB-5 investment entity as security.
After the I-526 and I-829 approvals are done, an investment return may be obtained in capital and/or interest or a percentage of the profits. But this can only be done if the conditions have been removed after approval of the above-stated petitions and according to the participation agreement or exit strategy decided when the investment was made.
It is advisable to seek independent legal counsel before applying for the EB-5 investor visa. Ensure that you read all the terms and conditions carefully. Pay attention to the equity portion of the investment, internal costs/fees, exit strategy, and investment structuring to meet the return of original capital and return on investment.
The most common factor for rejection of EB-5 investor visa application is the proof of a legitimate source of income.
The EB-5 regulations state that the capital should be invested “at-risk”. Investments are categorized as “at-risk” when they are entirely committed to a new commercial enterprise without guaranteeing return or redemption. EB-5 visa applicants may choose from a spectrum of investments and go for options that offer preferences and other forms of security rather than high-risk and high-return programs.
After the immigrant visa or green card has been granted, the applicant must enter the United States within 180 days.
After entering the United States, the applicant is required to establish residency. They also need to show intent to reside by opening bank accounts, getting a driver’s license, social security number, and paying taxes. Based on the applicant’s business or profession, they may need to work in the U.S. or overseas. However, all permanent residents need to remain in the United States for more than six months every year. If this condition is not fulfiled, they are deemed to have abandoned their permanent residency status.
Dual citizenship also depends on the applicant’s country of origin. In some cases, U.S. allows dual citizenship. Still, if your country of origin does not allow it, it won’t be possible.
Once the I-526 petition is filed, the time taken for an EB-5 investor to pass the U.S. Consulate interview and receive a conditional green card is now approximately four to five years. The time to process the green card depends on every investor’s particular situation, adjudication processing time, and any USCIS adjudication delays. For people born in China, Vietnam, and India, the average processing times are longer. Less time is taken for those born in any country other than China, Vietnam, and India.
For an EB-5investor visa holder, it is possible to apply for citizenship within five years from obtaining permanent residency. After five years of receiving the green card (Legal Permanent Residency), you need to be physically present in the U.S. for 30 months during the 5 years before the naturalization application.
The EB-5 investor visa norms do not outline any business experience or education requirements for applicants. The investor only needs to fulfil the suitability standards concerning income, net worth, etc. An essential requirement for the EB-5 visa is that the investor should prove unconditionally that the source of funds for investment is legal and support their claim with legal documentation.
At first, you will be given a conditional green card that is valid for two years. 90 days before the expiry of the conditional green card, the applicant must apply for removal of condition and obtain a regular, unconditional green card. Failing to remove the condition invalidates your conditional green card, and your permanent residency status is terminated.