An EB-5 visa or Investor Green Card allows a foreign national to obtain permanent residency by investing in a Commercial Enterprise in the U.S. The spouse and unmarried children may simultaneously apply for their own green cards as derivatives of the EB-5 investor. The General Requirements to obtain such a green card are that the investor must:
- Create a new commercial enterprise, which can be accomplished by:
- Starting a new business,
- Restructuring and reorganizing an existing business so that a new commercial organization results, or
- Expanding an existing business
- Create 10 new jobs for U.S. Citizens or lawful residents eligible for employment in the U.S.
- Invest at least $1,000,000 unless the investment is in a Targeted Employment Area (TEA) in which case the minimum investment is only $500,000. [A TEA is defined as a rural area (any metropolitan statistical area with a population of less than 20,000) or an area with an unemployment of at least 150% of the average.]
- The capital must be invested and at risk.
- The investment must benefit the U.S. economy
The investment can occur directly in an enterprise created by the foreign national or through a designated “Regional Center”. An investment in a Regional Center is a passive investment where the Regional Center manages the day-to-day operations of the business and ensures the project fulfills the EB-5 program’s statutory requirements. This approach is attractive to many foreign nationals. Many individuals do not want to deal with starting a business while worrying about complying with the job creation requirements, others still want to live and work abroad, and many simply don’t have the time or desire to develop and direct a U.S. enterprise.
Investing in an approved Regional Center does not automatically reduce the required investment from $1,000,000 to $500,000, but the vast majority of Regional Centers choose projects within a TEA. Approval as a Regional Center also provides an alternate method of satisfying the job creation requirement. An investment in a Regional Center project in a TEA permits an EB-5 applicant to qualify based on an investment of $500,000.00 without having to directly employ any U.S. workers provided indirect jobs are created. Furthermore, the Regional Center must apply for this designation directly from the United States Citizenship and Immigration Service (USCIS) and are structured to maximize the chance of an EB-5 Green Card approval although this obviously cannot be guaranteed.
Regional Center projects vary greatly in the ways they invest and include investments in: real estate, ski resorts, farms, wineries, and manufacturing to name a few. The risk and potential returns associated with an investment in a Regional Center project varies greatly. It is important for an individual to speak with a qualified investment adviser before making such an investment to determine which (if any) Regional Center investment is appropriate. The “right” Regional Center project will depend on several factors including an individual’s appetite for risk and his or her required return on investment as well as any personal interest in the type of project. Whether the investor chooses to create his or her own new commercial enterprise or invest through a Regional Center the process is similar. Here is an overview of the process:
- Consult with an immigration attorney and a financial and/or tax Adviser to determine the right investment and any tax implications.
- Sign the appropriate contracts and place the investment funds in an interest bearing escrow account.
- The EB-5 investor’s immigration attorney files the I-526 and necessary supporting documentation
- After 6-12 months the I-526 should be approved (processing times may vary).
- If the EB-5 investor is in the U.S. on a lawful nonimmigrant status (excluding VWP), then he or she can adjust status to that of a permanent resident.
- If the EB-5 investor is out of the U.S. the petition is transferred to the National Visa Center in New Hampshire. The appropriate fees and forms will be collected by the National Visa Center for the foreign national and each accompanying family member.
- Then, the case is transferred overseas for an interview.
- After successful completion of the interview, the Conditional Green Card is then sent to the investor and his or her family. After immigrant visa approval each immigrant must enter the U.S. within 6 months.
- If investing in a Regional Center Membership certificates will be issued along with quarterly statements for the investor. Day-to-day aspects of the company are controlled by the Regional Center.
- 1 year and 9 months after the I-526 is approved the investor must Petition to USCIS to remove conditions on the permanent residency. The investor and his or her immigration attorney will demonstrate that the $500,000 is invested and that 10 jobs have been created. Regional Centers have been pre-approved to do this and should satisfy this requirement.
- A 10 year Permanent Residency card is issued once the conditions have been removed.
- 5 years after Permanent Residency is obtained a foreign national may (or may not) choose to become a U.S. Citizen.