EB-5 Visa

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Descripción general:

What is the EB-5 visa?
What are the benefits of an EB-5 visa?
What are the requirements to get an EB-5 visa?
What is a new commercial enterprise?
What types of businesses qualify for an EB-5 investment?
What is a targeted employment area?
What is a regional center?
What are the differences between investing in a regional center and making a direct investment?
What are some examples of lawful sources of funds for an EB-5 visa?
Can I use a gift for my EB-5 investment?
Does my investment have to be money, or can I invest something else of value?
What does it mean for my investment to be “at risk”?
What is the process for getting an EB-5 visa?
How long does the entire EB-5 process take?
Will the EB-5 program change in the future and what will the changes be?
What are the details of the job creation requirement?
If I buy a business that already has 10 employees, will they count toward the 10 jobs that I’m required to create?
What does it mean for the EB-5 investor to “engage in the management of the enterprise”?
Can I become a citizen with an EB-5 visa?
What documents do I need to include in my EB-5 application?
What is my immigration lawyer’s role in the EB-5 visa process?
How do I find a Business to Invest in for my EB-5 visa?
Who qualifies for an EB-5 visa?
What is the “visa backlog” and whom does it affect?
When do my investment funds need to be invested in the EB-5 business?
Can my family members come to the U.S. on my EB-5 visa?
What does it mean for my child to “age out”?
Once my visa is approved, how soon do I have to enter the United States?
Do I have to live in the U.S. once I have my green card?
If I already have a business in the U.S. can I use it as my EB-5 investment?
If I’m in the U.S. on an E-2 visa, can I convert it to an EB-5 visa?

1. What is the EB-5 visa?

The EB-5 visa is an immigrant visa available to investors, business owners, and anybody else seeking to launch a company in the U.S. You must spend a minimum of $1,050,000 in a U.S. company to be eligible for an EB-5 visa. You can be qualified to invest a lower sum of $800,000 if your project is situated in a “targeted employment area”, which is a region that is economically struggling. The company must be a for-profit commercial enterprise. Non-profit organizations and real estate investments are not acceptable EB-5 candidates.

2. What are the benefits of the EB-5 visa?

You may obtain your green card and begin the process of becoming a citizen of the United States.
Your spouse and your minor children who are not married can also be granted green cards if you invest in EB-5 projects. Additionally, your kids can receive an education in the U.S.
You are free to engage in any legal employment.
You have the freedom to live and work wherever you want in the U.S.

3. What are the requirements to get an EB-5 visa?

The requirements for an EB-5 visa are:

You must invest in a “new commercial enterprise”.
You must invest at least $1,050,000 in the new commercial enterprise. (You may qualify to make a reduced investment of $800,000 if the investment is located in a “targeted employment area”).
Your investment must lead to the creation of at least 10 full-time jobs for U.S. workers.
Your investment funds must be “at risk”.
The funds used for your investment must have been lawfully obtained.
You must engage in the management of the new commercial enterprise.

4. What is a new commercial enterprise?

A new commercial enterprise is a profit-making company that engages in legal operations and was founded after November 29, 1990.
The firm you invest in must be a new commercial enterprise to be eligible for an EB-5 visa.
A new business firm must engage in commercial activities. Having residential real estate under your ownership and operation disqualifies you.

Businesses established on or before November 29, 1990, can also qualify as a new commercial enterprise if:

The investor substantially reorganizes or restructures the business OR
If the investor increases the size of the business so that there is a 40% increase in the number of employees of the business; or a 40% increase in the net worth of the business.

5. What types of businesses qualify for an EB-5 investment?

Most types of business entities qualify for the EB-5 visa including:

Sole proprietorships
Limited and general partnerships
LLCs
and many more

To qualify for an EB-5 visa, you can:

Start a new business
Invest in an existing business
Buy an existing business
Or, invest in a regional center

6. What is a targeted employment area?

The following is a list of what is considered a target employment area:

If the company you invest in is situated in a “targeted employment region”, you might be eligible for a reduced investment level of $800,000 as an EB-5 investor.
A high unemployment area or a rural area is referred to as a targeted employment area.
A region that has a high unemployment rate that is at least 150% higher than the national average.
A rural area that is not part of a metropolitan statistical area or a city/town with a population of 20,000 or more.
The commercial organization must conduct the majority of its operations in the targeted employment region to be eligible for the decreased investment amount.
A firm “regularly, methodically, and continuously delivers goods or services that assist employment development” in the region where it “primarily does business”

7. What is a regional center?

A regional center is a company subject to USCIS regulation that can combine funds from several EB-5 investors to fund a project.
The production of jobs, regional productivity, and economic growth must be supported by regional centers. Large-scale hotels, resorts, and other real estate developments are typically developed by them.

8. What are the differences between investing in a regional center and making a direct investment?

An investor has two investment options if they want to be considered for an EB-5 visa: direct investments and investments in regional centers.

The main distinctions between direct investments and those made through regional centers are the degree of investor control over the investment and the methodology used to determine how many jobs must be created to satisfy the EB-5 job creation criteria.

Direct Investment

In a direct investment, the investor is often either the business’ single proprietor or one of a small number of co-owners. When making a direct investment, the investor typically exercises substantial influence over the company and actively participates in its daily operations.

Regional Center

The investor control over a regional center investment is significantly reduced. They are an investor among many investors – perhaps even hundreds. A regional center investment center has little to no engagement from the investor in the day-to-day management of the company. Typically, the investor’s influence over the company is restricted to simple voting rights.

Another big difference between regional center investments and direct investments is how the investor proves job creation.

The investor in a direct investment must demonstrate that 10 direct jobs were generated. As a result, the investor is required to provide genuine employment documentation for each employee (including Form I-9). To view the form, click here: USCIS Form I-9
Regional centers are not required to provide evidence that each job was created.
Regional centers make use of economic multipliers and calculations that demonstrate the generation of the necessary number of employments.

Job Creation

Whether an investor makes a direct investment or invests in a regional center determines how employment is estimated. Only employment directly produced by the new commercial enterprise – referred to as direct jobs – count toward the job creation criteria for direct investments. Both direct and indirect jobs are accounted for in regional hubs. Jobs that are “held outside of the new commercial enterprise but are produced as a result of the new commercial company” are referred to as indirect jobs and as a result, regional centers can claim ownership of employment that wasn’t created by them.

9. What are some examples of lawful sources of funds for an EB-5 visa?

One of the key requirements of the EB-5 visa is that the funds used for an EB-5 investment must be lawfully obtained.

This implies that no unlawful action may have been used to get the money.
You will need to provide several supporting papers, such as bank statements on tax records, to demonstrate how the money was generated.

Examples:

Income earned from employment
Income from the sale of a property
A loan is taken against equity in real estate
An inheritance
A gift

10. Can I use a gift for my EB-5 investment?

Yes, you may receive a gift of money to utilize as your EB-5 investment.
Remember that before investing in the EB-5 enterprise, the money must be in your hands. The individual contributing is unable to make a direct investment on your behalf into the EB-5 company.
You will still need to demonstrate that the person who gave you the money legally did it. (The same will apply if your EB-5 investment is a result of an inheritance)

11. Does my investment have to be money, or can I invest something else of value?

No, a person does not need to make a financial commitment to be eligible for an EB-5 visa. According to the EB-5 requirements, investors must invest “money” into a company.

Examples of Capital Include:

Cash
Inventory
Equipment
Cash Equivalents
Other tangible property
Proceeds from a loan

Be aware that if you decide to invest anything other than cash and inventory, the investment will be assessed at its fair market value.

12. What does it mean for my investment to be “at risk”?

This implies that your investment dollars must be used rather than merely sitting in your company’s operating account. A few things to be aware of:

You must be able to profit or lose in your investment.
There is no assurance that the money you invest will be returned to you.
You won’t be given the option to redeem any of your company interests.
Your contributions must appear more like an investment than a loan to the company.
Your cash cannot be utilized as business reserves or left idle in a bank account.

13. What is the process for getting an EB-5 visa?

Here is a very basic overview of the EB-5 process:

Step 1 – Hire an immigration attorney

Step 2 – Select an investment

Step 3 – Invest your funds

Step 4 – File Form I-526

Step 5 – Adjustment of status/visa processing

Step 6 – File Form I-829

Step 7 – Naturalization (Optional)

14. How long does the entire EB-5 process take?

Currently, USCIS processes Form I-526 in an average of roughly 18 months.

Adjustment of status or visa processing – The Adjustment of State takes about 6 months, and the consular Processing takes about 8 to 12 months. You will be a conditional green card holder for about 2 years, until approval of your I-829 petition. During that period, you can live and work in the U.S.

I-829 Processing – Form I-829 takes around 2.5 years to process. Once your I-829 is approved you are a permanent resident.

Naturalization – You could be qualified to apply for naturalization to become a U.S. citizen after having been a permanent resident for at least 5 years.

15. Will the EB-5 program change in the future and what will the changes be?

Over the past few years, the EB-5 program has been under fire for several reasons. The EB-5 visa has been criticized for the following reasons:

The practice of wealthy people “buying their way into the United States” is immoral.
The investment amount must be raised because it is too low.
The criteria for identifying designated job zones are far too simple.
Based on the instances of fraud and abuse that have occurred with regional centers, stronger regulation, and control are necessary.

There is a rising sentiment that the EB-5 program will undergo modifications as a result of the criticism. These changes will be centered on:

Increasing the required investment amount
Reducing the number of targeted employment areas
Increasing the oversight of the regional center

16. What are the details of the job creation requirement?

Ten jobs must be created for every EB-5 investment.
There must be at least 40 new employment plazas produced if there are 4 EB-5 investors.
10 full-time roles for qualified workers must be created by the new business.
Employees that meet the requirements for qualification are U.S. citizens, legal permanent residents, and/or other foreign nationals.
Sons, daughters, and the EB-5 investor themselves do not qualify as eligible workers.
Non-citizens and those without authorization to work in the U.S. are not considered to be eligible workers.
Remember that these employees must be hired on a full-time basis which is at least 35 hours a week.
You can have two or more employees share a full-time role, but combining two part-time jobs won’t constitute one full-time employee.
The positions cannot be seasonal, transient, or intermittent and must be expected to endure at least two years.

17. If I buy a business that already has 10 employees, will they count toward the 10 jobs that I’m required to create?

No, the EB-5 program requires your investment to create 10 new full-time jobs for U.S. workers.

The positions that are already there will not count against your need to generate 10 jobs if you purchase an existing company.
In addition to the employment that was already there when you bought the firm, you will need to generate an additional 10 employees.
Troubled enterprises are an exception to this norm.
To qualify as a problematic business, a company must have been in operation for at least two years and have had a net loss of at least 20 percent of its net value within 12 or 224 months before the date the EB-5 investor submitted Form I-526.
The investor may count the employment they are preserving at a failing firm among the 10 jobs they are expected to generate.
You must demonstrate that you will at the very least sustain the number of employments that existed before your EB-5 investment if your firm is in jeopardy for at least 2 years.
Remember: If the struggling company doesn’t have 10 employees, you’ll still need to add more to meet the requirement.
If a struggling company only has 5 full-time employees, it is your responsibility to keep those 5 positions and add 5 more.

18. What does it mean for the EB-5 investor to engage in the management of the enterprise?

To qualify for an EB-5 visa, you must engage in the management of the new commercial enterprise.

You can fulfill this need by either creating the company’s policies or taking care of the day-to-day operations.
You can’t just invest money in the company passively.
If you put money into a regional center, you’ll probably own a limited partnership in the company. By demonstrating that you have the rights typically granted to limited partners, such as voting rights, you can satisfy the management requirement in this situation.
A declaration of your work title and responsibilities that you include with your EB-5 petition is another approach to demonstrate that you are sufficiently involved in the administration of the business.

19. Can I become a citizen with an EB-5 visa?

The EB-5 visa does not directly give you citizenship, but you can eventually become a U.S. citizen.

The EB-5 visa is a type of immigrant visa. This indicates that if your application is accepted, you can obtain permanent residency.
The first step in the procedure is obtaining a conditional green card. You can then become an unconditional permanent resident by having the condition on your conditional green removed.
You are eligible to naturalize as a U.S. citizen if you are a permanent resident.
Following at least five years as a permanent resident, you are eligible to apply for naturalization.
Remember that the 5-year period includes the period you spent as a conditional permanent resident.
You must also physically reside in the U.S. for at least 2.5 years of the 5-year term to naturalize. You are not permitted to leave the U.S. during this time for any one trip that lasts longer than 180 days.
Being of excellent moral character and passing a test on American civics are two more conditions for citizenship.

20. What documents do I need to include in my EB-5 application?

You may choose which papers to submit and how to organize them with the aid of an accomplished immigration lawyer. Your petition’s supporting documentation will fall into one of three categories: the investor, the business, and the source and route of the funding, in that order. If you received your money as a gift instead of through the sale of a property, you would include alternative paperwork. All paperwork must be translated into English.

Documents Relating to the Investor:

Copy of the identity page of the investor’s passport
Copy of the investor’s foreign birth certificate
Investor’s resume
Copies of all diplomas, degrees, awards, and professional certifications
Copy of marriage certificate (if you have one)
Copy of social security card (if you have one)

Documents Relating to the Business:

Comprehensive business plan
W-2 and I-9 forms for workers already hired
Payroll records
List of employees and corresponding job descriptions
Business entity documents
Articles of incorporation (for a corporation)
Articles of organization (for an LLC)
Bylaws
Shareholder list
Partnership agreement list of limited partners
Operating Agreement

Documents Relating to Source and Path of Funds:

Personal tax returns over the previous five years
A copy of the bank statement from before and after the investment in the new business
A copy of the wire transfer authorization approving the transfer of funds from the investor’s private account to the EB-5 business account

If your source of funds is coming from the sale of a property:

A letter from the party overseeing the transaction, confirming the conditions of the sale, and a copy of the buy and sell agreement for the property
A replica of the buyer’s certified check or wire transfer (for the purchase)

If your source of funds is coming from owning a business:

A copy of the company’s most recent balance sheets
A copy of the company’s articles of incorporation or organization
A copy of the company’s most recent tax returns
A letter from the company’s accountant or a letter from the company attesting to the investor’s income over the past few years
A letter from the investors outlining their employment history, duties, position within the company, and salary

If your source of funds is coming from a loan:

A replica of the loan agreement letter the lender sent to the EB-5 investor outlining the loan amount, date, the kind of security or collateral required in exchange for the loan, and other details.
A replica of the EB-5 investor’s bank statement demonstrating the loan money’s distribution
Include any supporting paperwork demonstrating the lender’s legal source of money if the lender is a person rather than a bank.

If your source of funds is coming from a gift:

A letter from the giver attesting to the amount of the gift, the date of the donation, any conditions of the gift (if any), etc.
Investor’s bank statement detailing the distribution of gift funds
Documentation proving the giving party’s legal funding sources

21. What is my immigration lawyer’s role in the EB-5 process?

Here is a list of things that are not part of your immigration lawyer’s role:

An immigration attorney is not financial or investment advice.
If your immigration lawyer is not advising you on the compliance of the investment with the immigration criteria of the EB-5 visa, they should not be advising you on which project to invest in.

Your immigration lawyer’s role is:

To determine if an EB-5 visa is the best choice for you given your immigration goals and current situation.
To supervise the EB-5 process and lead you through the full procedure.
Your prospective investment should be discussed with your immigration attorney to see if it satisfies the criteria for an EB-5 visa.
To investigate the source of your investment cash.
To submit your EB-5 application on your behalf to the USCIS after it is finished being compiled.
To assist you with changing your status or obtaining a visa once you have received approval for your Form I-526.

22. How do I find a business to invest in for my EB-5 visa?

You should conduct your research before investing in an EB-5 project, just as you would if you were considering any other type of investment.
In addition to your efforts, experts are available to assist you in making an investment decision. Registered investment advisors and brokers/dealers are the two categories of experts that can assist you in choosing an investment. They will typically charge a fee in exchange for their advice on investments.
The Financial Industry Regulatory Authority oversees registered investment advisors, brokers/dealers, and other entities (FINRA)
Brokers/dealers typically bill the company or regional center a finder’s fee for the investors they refer to a certain project.
You may learn a lot about your broker/dealer, or registered investment advisor through Finra’s BrokerCheck tool.
BrokerCheck is available at BrokerCheck – Find a broker, investment, or financial advisor (finra.org), and it is an excellent method to confirm if your financial advisor is registered with Finra. Additionally, you may find out how many years of experience, tests, and state licenses your financial advisor has.

23. Who qualifies for an EB-5 visa?

An EB-5 visa can be obtained without being a citizen of a certain nation, unlike the E-2 visa. You should be able to obtain an EB-5 visa if you satisfy the standards and are not disqualified for another reason.

24. What is the “visa backlog” and whom does it affect?

The EB-5 visa category issues 10,000 visas every year and the number of EB-5 visas that can be issued to citizens of each country is capped under the Immigration and Nationality Act (INA). There is a backlog of accepted applications when there are more approved Form I-526 petitions than there were visas available for a certain country’s citizens. Approved candidates are then forced to wait until a visa becomes available. The only category of EB-5 investors currently impacted by a visa backlog are citizens of Mainland China.

25. When do my investment funds need to be invested in the EB-5 business?

You must demonstrate at the time of the I-526 filing that you have invested in the new business venture or are actively working to do so.

Without a current commitment, your intention to contribute to the future won’t be sufficient.
You cannot wait until your I-526 has been authorized before investing your money.
You can put the money in the escrow account before submitting your I-526. The release of the investment money can then be subject to I-526 approval, visa issuance, or status modification. You would be able to obtain your investment money back if the I-526 is rejected for any reason.

26. Can my family members come to the U.S. on my EB-5 visa?

Yes, a successful EB-5 investor, your spouse, and unmarried kids under 21 are also qualified to apply for permanent residency.

27. What does it mean for my child to “age out”?

Aging out occurs when your child becomes 21 or older and can no longer travel with you on your EB-5 visa. This may become a problem if your child is almost 21 years old at the time you apply for an EB-5 visa. You should be aware of how a child’s age is determined during the EB-5 procedure to prevent your youngster from growing out. The age of your child is calculated by subtracting the number of days it took to process your Form I-526 from their age at the time the visa becomes available.

28. Once my visa is approved, how soon do I have to enter the United States?

Your EB-5 normally has a six-month validity period. This implies that you have six months to visit the U.S. once the consulate overseas grants your EB-5 visa.

29. Do I have to live in the U.S. once I have my green card?

You must intend to live in the U.S. continuously to qualify as a permanent resident. Despite this, you are still permitted to enter and exit the U.S.

You shouldn’t leave the country for more than six months at a time, as doing so might be seen as giving up your right to permanent residency.
You should apply for re-entry permission if you need to leave the country for a prolonged length of time.
You can leave the U.S. for lengthy periods with the help of a re-entry permit. There is a legal assumption that you do not plan to renounce your status as a permanent resident if you have re-entry permission.
The typical duration of a re-entry permit is two years from the date of issuance.

30. If I already have a business in the U.S., can I use it as my EB-5 investment?

Yes, your existing U.S. business can qualify for an EB-5 if it meets all the EB-5 requirements mentioned in Section 3.

31. If I’m in the U.S. on an E-2 visa, can I convert it to an EB-5 visa?

Yes, if you are already in the U.S. on an E-2 visa, you can convert to an EB-5 visa.

“Adjustment of status” refers to the procedure of switching from an E-2 visa to an EB-5

If you choose to use your E-2 business as the new commercial enterprise for your EB-5 visa, there are a few major benefits:

The money you’ve previously put into the E-2 company may count toward your EB-5 investment.
The ten full-time employment you need to generate may include the ones you’ve already established through your E-2 firm.