The EB-5 Program
Overseen by the U.S. Citizenship & Immigration Services (USCIS), the U.S. Immigrant Investor Program (EB-5) provides foreign nationals the opportunity to become conditional residents for two years upon investing $1,050,000, or $800,000 in a designated Targeted Employment Area, in a new commercial enterprise.
Each investment unit must create at least ten new, direct or indirect jobs for U.S. workers. Once the job creation requirement is met, the conditions are removed and investors may obtain permanent residency. For official information regarding the EB-5 Program, please visit the EB-5 Immigrant Investor web page.
Obtaining Permanent Resident Status
Obtaining permanent resident status (the “Green Card”) in the United States is generally restricted to three paths: Employment-based, Family-based and Entrepreneur-based programs. Because the Family and Employment-based options are subject to long visa backlogs and other major obstacles, the EB-5 “Immigrant Entrepreneur” program has become one of the fastest and most reliable visa options offered by the United States.
With relaxed eligibility qualifications and a special reserve of 10,000 visas annually, the EB-5 program opens the door to permanent resident status to retirees, entrepreneurs, students, business owners, professionals and more. The EB-5 immigrant visa classification has many street names: such as the “Entrepreneur” visa, “Investor” visa and the “Jobs Creation” visa.
Congress created this program to encourage infusion of foreign capital to benefit the U.S. economy and exchange U.S. residency for job creation benefiting America workers. In simplest terms, the EB-5 program works like this:
- The U.S. Citizenship and Immigration Service (USCIS) will issue provisional visas to foreign entrepreneurs who seek to create at least 10 full-time, direct jobs for American workers.
- Every entrepreneur must create 10 new, full-time and permanent jobs in an America business (“new commercial enterprise”) that will remain in place during a 24-month period. That means the commercial enterprise will be required to provide to the USCIS payroll, tax and accounting records proving that he directly employs 10 workers. In addition, by “directly” employs the USCIS means these must be W-2 employees of the entrepreneur or his company.
- If the Immigrant fails to prove that he has created all 10 of these new, full-time and permanent jobs then the USCIS will cancel the immigrant visa and start deportation procedures to remove him and his family from the country.
- However, this strict job creation rule was significantly softened when the Congress created the new “EB-5 Regional Center” program.
The EB-5 Visa Process
Immigrant carefully researches Ashcroft Sullivan Economic Development Center EB-5 Program options to assess qualifications, timing, and benefits.
If interested in participating and is otherwise qualified, the Immigrant submits a preliminary application to Ashcroft Sullivan Economic Development Center program managers.
Within ten days, Ashcroft Sullivan Economic Development Center managers complete a background check and eligibility test. If accepted into the EB-5 visa program, the immigrant must complete additional forms, collect records, and place capital into escrow.
An immigrant is assigned a highly skilled EB-5 program visa lawyer that will prepare and file the comprehensive application package (Form I-526 “Immigrant Petition by Alien Entrepreneur”) to the USCIS.
If the Form I-526 Petition is approved by USCIS, the application is transferred to US Embassy in the Immigrant’s home country. The Immigrant will then attend a visa interview at the Embassy conducted by a U.S. Consular Officer.
If the Form I-526 petition is denied by USCIS, all application support materials are returned to the investor and the capital contribution is returned in full as soon as practicably possible and the USCIS case is closed.
If the Consular Officer approves the case, the EB-5 visa stamp is placed into the Immigrant’s passport (same for spouse and children). The immigrant and family must then enter the United States within 180 days of visa issuance, and upon first landing in America, all receive conditional residency (conditional Green Card Status) valid for 2 years.
As soon as the immigrant and family make their first landing in America resulting in resident status, they are all free to live anywhere in the country and enjoy unrestricted travel/ work rights.
Within several weeks of landing, the USCIS will manufacture and mail out the actual “Green Card” but until this arrives in our mailbox, the immigrant visa stamp in the passport serves as temporary evidence of residency.
About 21-24 months after I-526 approval, the EB-5 program provides the Immigrant with evidence proving job creation. The Immigrant’s visa lawyer then prepares and files the required Form I-829 “Petition to Remove Conditional Status” with the USCIS. This required application seeks to change the immigrant’s status from conditional to permanent Green Card Status.
If the Form I-829 application demonstrates the required job creation then the USCIS will approve the case. The immigrant and family members then receive new “permanent” Green Cards without an expiration date.
If the EB-5 program cannot demonstrate the required job creation, then the USCIS will deny the Form I-829 application and start proceeding to terminate the immigrant’s residency.
After three years, the immigrant and family members may apply for U.S. citizenship and U.S. passports.
The Regional Center
A special designation issued by the USCIS called an “EB-5 Regional Center” (“RC”) provides several significant benefits to immigrants seeking residency through the traditional EB-5 program.
One of the most important advantages of working with a designated RC is relaxed job creation requirements – critical to obtaining and sustaining permanent residency. Typically, an immigrant must prove he or she created and sustained 10 new, direct employees over a 24- month period. Under the RC program, however, the immigrant can satisfy residency testing by showing indirect job creation. In other words, the immigrant does not need to show he or she directly employs any workers.
Another RC advantage is that immigrants may pool capital thereby reducing management responsibilities while increasing job creation results.
On October 5, 2012, President Obama signed into law a three-year extension of the EB-5 Regional Center program. This means that immigrants can safely obtain Green Card Status through the Ashcroft Sullivan Economic Development Center program through September 30 2015. While the EB-5 visa process has three major milestones, there are, of course, many smaller steps, which must be completed to reach the goal of residency. The below chart provides a more detailed overview of this process.