EB-5 Investor Visa Overview

Twenty two years ago, the United States began to allow investment-based immigration to the US. Investment-based immigration occurs through the EB-5 visa program, which grants conditional permanent residency to immigrants and their families over a two-year period. The immigrant investor must 1. invest $1,000,000 in a new commercial enterprise in the United States, 2.create or preserve at least 10 full-time jobs for qualifying US workers via that enterprise and 3. maintain that business for two years.

If the commercial ventures are established in areas that are determined to have high rates of unemployment (Targeted Employment Areas, or TEAs), the amount required for investment is reduced to $500,000. The same rule applies to EB-5 Regional Center programs. An entrepreneur may claim the $500,000 reduced investment threshold if the Regional Center activities benefit companies operating principally within a TEA. Then an investor must file a petition, complete with supporting documentation, to get conditional permanent residency. Two years later, the investor must file another immigration application to finally attain green card status after fulfillment of these conditions.

The procedure for an immigrant to file an EB-5 visa is to first submit a form I-526, which, if approved, gives the immigrant conditional permanent residency. To get it approved, the immigrant investor must prove that he has invested a qualifying amount into an approved enterprise, that the investment is put at risk (meaning that it is placed for the purpose of generating capital and creating jobs and could be lost in the pursuit of that purpose), and that the capital is generated from a lawful source. An immigration attorney who is filing an EB-5 for an independent immigrant investor would have to include copies of his client’s bank statements, invoices of assets, evidence of transferred overseas property and leasing office space to show that the capital is placed at risk. He would also have to have copies of the investor’s foreign business records, documents that identify the source of capital, and business and personal tax returns to show that the money came from a legitimate source. In addition, the immigrant investor must show that he is actively involved in creation of the business and is not merely passively investing. This can be shown through a title, job description, membership on the board of directors or policy formulation.

Two years after filing the I-526, the immigration attorney would file an I-829 on behalf of his client to demonstrate that the client had maintained the required investment amount and that the enterprise had created ten full-time positions during the two-year period. This involves submitting federal income tax returns, bank statements, contracts, and payroll records, among other documentation. Due to the reams of documentation required, the assistance of an immigration attorney is crucial for both applications in the EB-5 visa process. Not only that, but subsequent agency interpretations of the Immigration Act of 1990 imposed additional restrictions, which resulted in higher evidentiary requirements for filing both applications. However, memos issued by USCIS in 2009 and 2011 have loosened some prior restrictions, resulting in renewed popularity for the EB-5 visa.

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