EB-5 Visa for Foreign Investors

Feb 11, 2022

The EB-5 Program – The Green Card for Investors

The EB-5 Program was implemented about 30 years ago to create jobs in the U.S. and attract investments from abroad. Under the EB-5 Program, foreign investors who make the equired minimum investment in a new US commercial enterprise may receive U.S. conditional permanent residence (Green Card).

After two years, if certain requirements are met, the conditions are removed and the investor and his/her family may obtain an unconditional Green Card.

Effective November 21, 2019, USCIS raised the minimum investment amount from $1 million to $1.8 million. However, on June 22, 2021, a federal court vacated the rule so that the minimum investment requirements went back to those in effect prior to such decision ($1,000,000 and $500,000 in Targeted Employment Areas).

Further, on June 30, 2021, the rule allowing investors to pool their investment funds through the Regional Center Program, was repealed. It is, however, expected that as of early 2022 this rule will be reinstated.

Rules regarding capital for investment

The rules regarding acceptable capital for investment for the EB5 Program are very similar to those in effect for the E-2 Visa classification. Acceptable capital may include:

  • Cash
  • Equipment
  • Inventory
  • Other intangible property
  • Cash equivalents
  • Indebtedness secured by assets owned by investor, for which the investor is personally and primarily liable

The capital must be committed and at risk.

Contrary to the E-2 Visa rules, investment in the form of retained earnings (meaning revenues generated by the EB5 company and reinvested in the same company) is not allowed.

Acceptable corporate structures for new commercial enterprises.

A commercial enterprise is any business entity formed to conduct lawful business, in the form of a:

  • Sole proprietorship
  • Limited or general partnership.
  • Joint venture
  • Corporation
  • Business trust

EB5 Investment requirements to remove the conditions

The obtainment of the unconditional Green Card is contingent upon creating full-time employment of at least 10 US citizens, Green Card holders or immigrants authorized to work in the US (not including the investor’s immediate family).

Full-time employment means a job that requires to work at least 35 hours per week.

EB-5 Requirements

Similar to E-2 investors, EB-5 investors must show that their investment funds have a lawful origin. In other words, the funds cannot be the proceeds of criminal activities. For this purpose, the investor shall be required to provide USCIS with bank statements, tax returns, real estate sale agreements, inheritance deed, and any other documents which may show the origin of the funds used by the investor for the US venture.

Funds must be invested into a new commercial enterprise and be used for qualifying business expenditures in furtherance of creating new jobs.

For an investment to qualify at the lower investment amount of $500,000, it must meet Targeted Employment Area requirements at the time of the investment.

The capital must be placed “at-risk’” without any guarantees of return.

Conditional permanent residency for two years

After investor’s initial petition (form I-526) is approved, conditional permanent residency can be obtained applying from the US through Adjustment of Status.

Filing form I-485 for Adjustment of Status

If the EB-5 applicant gets his petition approved and is already living in the U.S., he/she can then adjust their status from non-immigrant to permanent resident.

It is important noting that the adjustment of status is allowed only if the applicant is already in the US in lawful visa status. Applicants who come to the U.S. an Visa Waiver Program (ESTA) cannot adjust status, but they should at least obtain a B-1/B-2 Visa.

Application from outside the US through Form DS-260

If an EB-5 investor is not living in the U.S., then he/she must file a DS-260 application for conditional permanent residency, which will be processed at a U.S. Consulate or Embassy in the investor’s country and will conclude with an interview.

Interview is conducted at the U.S. consulate or embassy located in the applicant’s country.

Removal of conditions on residency

If I-485 or DS-260 petitions are approved, the applicant will receive a conditional Green Card, which will last for two years. The investor and his or her family members can live and work in the U.S.

During the 2-year conditional residency period, the EB-5 visa investor will be required to meet physical presence requirements, i.e.: remaining outside of the United States for more than one year is not allowed unless investor has previously secured a re-entry permit.

The application for removal (Form I-829), to be filed no later than three months prior to the expiration of the above mentioned two year period, must include evidence showing the petitioner has met all of the requirements set forth for the EB-5 program.

I-829 documents should include, among others:

  • Evidence of an existing commercial enterprise
  • Documentation showing that the new enterprise has received the investor funds
  • Documentation showing the entity was maintained for the entire conditional residency period of two years
  • Evidence that at least 10 full-time jobs were created

USCIS may request an interview after the I-829 petition is processed.

I-829 approval

If the I-829 petition is approved, the EB-5 investor, his or her spouse, and their unmarried underage children will be issued a 10-year Green Card to permanently live and work in the United States.

Five years from the date they obtained the initial conditional Green Card, they may be eligible for U.S. citizenship.

Main differences between EB-5 and E-2 Visa

  1. The investment required to obtain an E-2 Visa for the United States is considerably lower than the EB-5 investment. With E-2 Visa, in most cases, we are looking at $100,000 versus $900,000 required for the EB-5.
  2. Citizens from China, Brazil or Russia, among other nations, who do not directly qualify for E-2 Visa, may apply for EB-5. As noted in our article E-2 Visa for Russian and Chinese Citizens, citizens of these countries can obtain an E-2 Visa for the United States through second citizenship that can be acquired in just a few months by investing around $200,000 in countries like Grenada or Turkey. 
  3. The processing time for an E-2 Visa application may be from 5 to 12 weeks, as opposed to EB-5 Visa processing time, which typically takes around 1.5 years. 
  4. While the E-2 Visa is subject to renewal, EB-5 is initially subject to conditions that must be removed before the second anniversary. Conditions may only be removed if the EB-5 Visa holder can demonstrate that the EB-5 investment has created at least ten full-time jobs.
  5. EB-5 investors are required to reside in the United States for at least six months out of the year, while the E-2 Visa investor does not have residency requirements.

Learn More About the EB-5 Investor Green Card

E-2VisaWorld will assess if you meet the EB-5 Visa requirements and guide you through the complicated application process.

Contact us today for guidance on your EB-5 Visa application process and further information on how the EB-5 Visa requirements may apply to your specific situation.

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