FAQs

The US Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation by attracting investments from qualified foreign investors. In return, the EB-5 Program provides a direct path to US Permanent Residency and US Citizenship for qualified foreign investors, their spouses, and unmarried children under 21 upon approval of their I-526E Immigrant Investor Petition.

Over the years, the EB-5 Program has become very popular as it is a straightforward path to obtaining permanent U.S. Green Cards. Since 2000, more than 117,000 EB-5 investors from across the world have become U.S. residents through the EB-5 program.

Under the EB-5 Program, each investor is required to invest a minimum of $1,050,000 USD, or a reduced amount of $800,000 USD when investing in high-unemployment or rural targeted employment areas (TEAs). Additionally, they must prove that their EB-5 investment has either created or preserved a minimum of 10 full-time American jobs.

The EB-5 Visa was originally conceived for individual entrepreneurs that would fund and manage their own businesses. Under the original program, investors would only be able to claim job creation for direct employees on their payroll.

In 1992, Congress boosted the economic impact of the EB-5 program by authorizing the creation of Regional Centers to pool EB-5 capital from multiple foreign investors to fund projects with substantial job-creation impact on regional economies. Regional Center investors benefit greatly as they can claim not only direct jobs, but also indirect and induced jobs from capital expenditures on construction activities and project revenues. In this way, Regional Centers reduce the challenges of the required employment creation and provide a safer path with regards to the immigration path.

As part of the Consolidated Appropriations Act, 2022 (Public Law 117-103), President Biden enacted the EB-5 Reform and Integrity Act (RIA) on March 15, 2022 to improve the transparency and efficiency of the EB-5 Regional Center Program and extended it through September 30, 2027.

The EB-5 visa is a direct path to Permanent US Residency (Green Card). The Green Card allows the investor and their immediate family to live, study, work, and retire anywhere in the U.S. This program affords foreigners all the advantages of the American lifestyle while contributing to the U.S. economy through job creation. It is open to individuals from any country.

The EB-5 program stands as an ideal route for foreign nationals who have the required capital to secure permanent residency in the U.S. The U.S. is a safe harbor for your family as well as for your personal and business assets. Any member of your family with a Green Card can enter the United States at any time and stay as long as he or she wishes.

This visa is unique as it doesn’t require a U.S. employer sponsor or specific skills or knowledge. Furthermore, if you invest in a Regional Center project you are not required to work. It is your EB-5 capital, along with all the other sources of capital for the project, that will create the minimum 10 full-time and permanent jobs you will need.

After investing in a qualifying project and receiving approval of the I-526E Immigrant Petitions by USCIS, an EB-5 investor, his or her spouse, and unmarried children under 21 will receive Conditional Permanent Residency (CPR) status. At this moment, you will enjoy the same rights and benefits as every other lawful permanent resident of the United States.

Two years later, the applicant will request the Conditional Status on their residency to be removed with the I-829 Petition. Once this form is approved, the applicant receives Legal Permanent Resident (LPR) status. After five years have passed since the applicant received Conditional Residency status, he or she is eligible to request U.S. citizenship.

The EB-5 visa offers several benefits to foreign investors:

• It’s among the quickest ways to obtain U.S. permanent residency for the investor and their immediate family.

• There’s no need for a visa sponsor.

• Unrestricted employment opportunities in the U.S.

• EB-5 investors holding Green Cards have full access to the United States for personal, trade and business purposes.

• EB-5 investors may work, live, or own their businesses anywhere in the U.S., including states with no state income tax.

• The U.S. is a clear leader on internationally recognized colleges and universities for both undergraduate education and graduate studies.

• The EB-5 Visa gives access to public schools and more affordable in-state tuition rates at public colleges and universities, some of which are among the best in the USA.

• Students may work in the U.S. while they attend college.

• Higher acceptance rates at US public universities for Lawful Permanent Residents compared to international applicants.

• University students have access to student loans from the government and other sources.

• In case of political upheavals in the investor’s home country, the investors and their family can quickly move to the U.S.

• Eligibility for U.S. citizenship after a minimum of five years of permanent residency.

• Permanent residents travel to the U.S. without the need of a visa.

The investor, spouse, and all unmarried children under the age of 21 at the time of filing the I-526E Immigrant Investor Petition are eligible to receive Green Cards through the EB-5 program.

The Child Status Protection Act (CSPA) “freezes” a child’s age as of the I-526E petition filing date and during the entire time that the petition is being processed by USCIS.

Technically, yes, a person from any country in the world is eligible to apply for an EB-5 visa. However, some countries have less than reliable tax and financial documentation methods which will require persons from those countries to actively work with their immigration attorney to provide adequate source of funds authentication to the USCIS.

All of the relevant forms can be found on the USCIS website.

The two Green Cards offer the same rights and privileges. Under USCIS regulations, an investor who is approved for an EB-5 visa receives a conditional Green Card that is valid for two years. One year and nine months after the conditional Green Card is issued, a three-month window opens up during which an investor’s immigration attorney files another application with the USCIS to verify that all funds have been invested and that job creation requirements have been met. When the conditions are removed from the temporary/conditional Green Card, full resident status is granted and a permanent Green Card is issued to the investor. As said, both cards provide identical rights and privileges.

The most common problem area for investors has been insufficient documentation of the source and path of funds. Many people try to disclose the least possible information only to have the file returned with a request for further information. It is better to provide too much information rather than too little . In this era of terror alerts and suspicions about money laundering, USCIS adjudicators require a well-documented source and path of funds.

A good rule of thumb is to try to stay in the U.S. for at least half of each year, or it may be deemed that they have abandoned their permanent residency status. This presence does not need to be continuous as U.S. residents can travel. Extended absences, particularly those over six months, may also disrupt the continuous residency requirement for naturalization.

You should also bear in mind that an EB-5 investor must enter the United States within 180 days after they received their EB-5 visa. The investor must then establish residency in the United States. Evidence of intent to reside includes opening bank accounts, obtaining a driver’s license or social security number, paying state and federal income taxes, and renting or buying a home.

From the first day you become an EB-5 Green Card holder, you have most of the rights and obligations of U.S. citizens, except that you cannot vote and hold certain public offices. You may live anywhere in the U.S. permanently and get access to the U.S. Social Security system. Holding a Green Card allows your children to take advantage of educational opportunities in the U.S., potentially qualifying for lower in-state tuition at public universities and favorable admissions processes. As an EB-5 green card holder, you have the liberty to be employed by any company or to start your own business without needing additional work permits or sponsorships. You may travel abroad but need to keep in mind that extended absences for over 6 months may raise questions about your immigration intention.

One of the most important rights Legal Permanent Residents (LPR) possess is the right to apply for U.S. Citizenship after residing in the United States for five (5) years, including the 2 years of your Conditional Permanent Residency (CPR). To apply for citizenship, you must maintain a physical presence for a minimum of 30 months during the 5 years preceding your application for naturalization.

Applying for U.S. citizenship, while not mandatory for Legal Permanent Residents (LPRs), offers considerable advantages. Key among these is that citizenship allows for a broader scope of family reunification, enabling U.S. citizens to petition for immigration of extended family members like parents, siblings, and married adult children, which is a privilege not extended to LPRs. Once you become a U.S. citizen, you can live abroad without fear of losing your U.S. citizenship. Your children, even if born abroad, will be considered U.S. citizens. You will also have the right to vote, hold public office and work for the U.S. federal government.

An optimal way to reduce risk may be to invest in a project sponsored by a Regional Center whose business model is aligned with the repayment of your investment and who’s project has low sunk financing costs that can withstand a market downturn

According to EB-5 regulations, an investor must contribute capital to a New Commercial Enterprise (NCE) that conducts a legitimate, profit-oriented business. This NCE is usually organized as either a limited partnership (LP) or a limited liability company (LLC).

Therefore, the EB-5 investor becomes either a limited partner or a member, while the project’s sponsor acts as the general partner or managing member. Within the framework of the EB-5 Regional Center Program, the NCE uses the invested EB-5 funds to finance the Job Creating Entity (JCE), which can be either in the form of an equity investment or a loan.

The JCE, as the project developer, is tasked with both the development of the project and the creation of jobs, fulfilling the EB-5 investor’s requirements for obtaining a green card.

The Job Creating Entity (JCE) is a project entity that obtains the EB-5 capital from the New Commercial Enterprise (NCE) and is responsible for generating at least 10 jobs for each EB-5 investor. In cases of direct, standalone EB-5 investments, the NCE and JCE often are the same entity, with the EB-5 investor playing an active role in the business’s decision-making or daily operations. For these direct investments, only direct job creation can be counted. Conversely, in Regional Center investments, the NCE and JCE are typically distinct entities. Regional Center projects have the benefit of counting not only direct jobs, but also indirect and induced jobs created by the JCE to fulfill the job creation requirements of EB-5 investors of the NCE. This makes job creation more plentiful and predictable.

EB-5 Visa retrogression occurs when there are more people applying for EB-5 Visas from any given country than there are available visas for said country in a given fiscal year. As a result, the U.S. government puts a hold on issuing more visas, causing a backlog or delay for applicants. It essentially means that prospective EB-5 Visa recipients have to wait longer than usual to get their visas, akin to a traffic jam in the immigration process. This is a very similar situation to the EB-2 and EB-3 retrogressions facing Indian born applicants.

As of January 2024, EB-5 investors from China that invested before the EB-5 Reform and Integrity Act of 2022, are facing an 8-year retrogression. Those from India are facing a 3-year retrogression.

Retrogression is something to avoid at all costs because it creates substantial challenges and uncertainties for EB-5 Visa applicants, affecting their immigration plans, financial stability, and overall well-being. The good news is that applicants can protect themselves against the risks and effects of retrogression by analyzing which EB-5 categories have the most visas available.

Since there is a 7% visa cap per country, China and India became oversubscribed pre-RIA. If it were not for the RIA Reserved Visa categories, new EB-5 investors from these two countries would also have to wait several years for a visa. Even though by looking at the Visa Bulletin one will see all EB-5 Reserved Categories as “Current” for India and China, it’s imperitive to speak with your immigration counsel and regional center to hear the latest statistics of petitions filed to estimate which categories will retrogress sooner.

The areas where the U.S. Congress wants to direct EB-5 investment are known as Targeted Employment Areas (TEA). Since job creation is needed in these locations, the TEA minimum investment amount is US $800,000, instead of the US $1,050,000 required for more affluent areas. Although the lower TEA investment benefit has been part of EB-5 since its inception in 1990, the EB-5 Reform and Integrity Act of 2022 (RIA) established three Reserved Visa Categories and assigned 32% of all EB-5 Visas to them.

The Reserved Visas are also known as “Set-Asides” as 20% of all EB-5 Visas are earmarked for Rural TEA Projects, 10% for High Unemployment TEA projects, and 2% for Infrastructure projects. Also, the RIA mandates that EB-5 Petitions for Rural Projects be given priority processing (goal of 4 months). This is not surprising, as the two US Senators that sponsored the law, Chuck Grassley (Republican, Iowa) and Patrick Leahy (Democrat, Vermont) are from rural states.

This provision is allowing EB-5 Investors from oversubscribed countries, namely China and India to be given a Visa number and get Conditional Residence as long as their visa category does not become oversubscribed

Along with the creation of the Reserved Visa Categories the EB-5 Reform and Integrity Act of 2022 (RIA) also created the Unreserved Visa Category. It consists of 68% of the annual allotment of EB-5 visas to be issued. This category includes all non-TEA EB-5 investors whose minimum required investment is $1.05M USD. It also includes all legacy EB-5 investors that invested before the RIA. Their I-526 Petitions may not get processed as fast as those for rural, priority processing projects whose target average processing time is 4 months.

Further, if you were born in China, and invest in “unreserved visa” project, you may face great delay in getting your EB-5 visa. As of September 2023, there are nearly 20,000 EB-5 investors from China, not counting their spouse and children, who already have their I-526 Petitions approved and are waiting for visa availability, which is subject to a 7% country cap. There are also, nearly 2,400 EB-5 Investors from India in a similar situation.

On October 11, 2023, the US Citizenship and Immigration Service (USCIS) provided their long-awaited guidance about the EB-5 investment timeframe in EB-5 Reform and Integrity Act of 2022 (RIA) to satisfy the “at risk” requisite of the EB-5 visa. For pre-RIA investors, the sustainment period is the two years of their Conditional Residence. For post-RIA investors is “two years from investing” However, the start of this two-year clock is ambiguous, needs further clarification, and expectations to receive EB-5 capital back in two years is unrealistic as this depends on the terms of the Partnership Documents and when the Project gets liquidity. Also, their interpretation is non-binding, is not yet in the USCIS Policy Manual and is likely to be challenged in courts.

While both pathways lead to a Green Card, Direct EB-5 investments require the investor to actively manage the business and can only count direct jobs created. Regional Center investments, on the other hand, allow for passive investment and can count direct, indirect, and induced jobs, making them generally more popular due to reduced management burden and easier job creation fulfillment. The I-526 and I-526E petitions align with these two pathways, respectively.

A Targeted Employment Area (TEA) is a geographic area in the U.S. that either has an unemployment rate of at least 150% of the national average, or is a rural area. Investing in a project located within a TEA allows for a reduced minimum EB-5 investment amount of $800,000, compared to the standard $1,050,000 for non-TEA projects. TEAs are designated to attract EB-5 capital to areas with higher economic need.