Investor Immigrant Visa (EB-5 Visa)

EB-5 Visa Overview

Immigrant investor status (“EB-5 status”) allows a foreign national to obtain permanent residency in the United States by investing in a company that creates or maintains ten U.S. worker positions.  The investment must be either $1 million or $500,000 – depending on the location of the company.  An immigrant investor can either apply individually, or through a regional center investment.

 Who Is Included in the EB-5 Visa Family?

An immigrant investor, the investor’s spouse, and the investor’s minor children can all obtain permanent residency through the EB-5 application.  A minor child must be under the age of twenty-one (and unmarried) at the time the initial application is submitted (Form I-826).

 Two Types of EB-5 Visa Investment

Individual Investor –An individual investor is responsible for either creating a new business or taking over a distressed business.  In either case, the individual investor will be responsible for ensuring that the total investment is “at-risk” and for ensuring that the investment creates or saves ten U.S. worker positions.

Regional Center Investor – A regional center investor invests in one of about eighty approved regional centers.  Each regional center offers an investment opportunity and will provide a potential investor with a Confidential Offering Memorandum describing the investment project.  As an investor, you can live and work anywhere in the United States.  About 95% of all EB-5 investors choose to use a regional center.  It is important to note that not all regional centers are the same, and some offer better opportunity of investment return and the receipt of immigration benefits.

 Conditional Permanent Residency

Initially, an investor (and the investor’s family) will only be given a conditional, two year permanent residency card.  At the end of the two years, the investor (and the investor’s family) must apply for the removal of the conditions.  Once the conditions are removed, the investor and investor’s family will have unconditional permanent residency.

Conditional permanent residency status provides the same benefits as traditional permanent residency.  The lone difference is the requirement to apply for the removal of conditions after two years.

 EB-5 Visa Time Frame

Start of Process:

  • Fund Enterprise/Placement of Money in Escrow.   Preparation and filing of I-526.

Approval Stage:

  • I-526 Approved.  Expect about nine months after start of process.

Entering US/ Adjusting Status in US:

  • An investor and family can either enter the United States through consular processing or adjust status if already in the United States.  If consular processing, expect about six months.  If adjusting status in United States, expect twelve months.   At this stage, the investor is issued a conditional green card.

Removal of Conditions:

  • Two years after receiving conditional permanent residency, the investor and the investor’s family must apply for the removal of the conditions to permanent residency.   Expect the decision process to take about 12 months.

Naturalization (Optional):

  • Five years after obtaining conditional permanent residency, the investor and investor’s family can apply for naturalization (if otherwise eligible).

EB-5 Visa Initial Concerns

Whether an immigrant investor chooses to pursue an individual petition or a regional center petition, the immigration agency will initially be most concerned about:

  • The Source of the Funding (must clearly show legitimate means of obtaining)
  • The Path of the Funds Being Transferred to the Company/Regional Center
  • Whether all Funds are “At Risk”

EB-5 Visa Historical Usage

The Eb-5 visa category was created in 1990.   However, the visa was rarely used for many years due to concerns within the immigration agency.

Fiscal Year

EB-5 Issued

Fiscal Year

EB-5s Issued

2000

218

2007

806

2001

191

2008

1360

2002

142

2009

3688

2003

64

2010

2480

2004

129

2011

3340

 2005

2006

 346

749

 2012

2013

 6628

8543

 EB-5 Visa Regional Centers

Roughly 95% of EB-5 Investor Immigrants choose to invest in a regional center.

 What is a EB-5 Visa Regional Center?

  • At its simplest, a regional center is an investment opportunity that is focused on a particular region or market.  When you invest in a regional center, all of your money is “at risk” and there cannot be any guarantee that you will receive your money back at the end of the investment.
  • Each regional center must be approved by the USCIS, and there is a list of regional centers on the USCIS website.  Depending on the regional center, the investment will either have to be $1 million or $500,000.
  • You, as the investor, are solely responsible for determining which regional center offers the best chance of an investment return.  An immigration attorney cannot help you determine the best investment.  However, an immigration attorney can help by performing immigration due diligence examinations of the regional center(s).  Not all regional centers are the same – some offer a better opportunity for permanent residency than others.

How does an EB-5 Visa Regional Center Investment work?

  • Regional Centers will provide a potential investor with a Confidential Offering Memorandum describing the investment project
  • The investor will choose which regional center offers the best investment opportunity, and the immigration attorney will advise as to whether the regional center investment will qualify for EB-5 status.
  • Once a regional center is picked, the immigration attorney will prepare the I-526 (initial EB-5 status application).
  • At time of filing the I-526, the investment will need to be placed in an escrow account.
  • If application is approved, the investment is placed into the regional center.

EB-5 Visa Individual Applications

Detail is essential in creating an investment that will allow an applicant to obtain EB-5 status.  To begin the process, the USCIS will expect the proposed business to have a business plan, marketing analysis, hiring time table (either already hired or will hire), etc.  After two years, USCIS will need evidence of direct hiring of ten fulltime employees, evidence that all money was “at risk” and not just sitting in the bank, etc.

 EB-5 Visa Lawyer Contact Information

If you have any additional questions about the EB-5 application, please do not hesitate to contact Gafner Law Firm.