EB-5 Immigrant Investor

Lawful Permanent Residence may be gained by qualifying in the business-related Fifth Preference (EB-5) immigrant visa category as an investor in an employment-creating new enterprise. This category is an option for foreign investors seeking the opportunity to live and work in the U.S. permanently.

Two EB-5 programs exist: (1) an Individual program; and (2) a Regional Center program.

To qualify for permanent residence under the Individual program, the applicant must:

  1. invest in a new commercial enterprise;
  2. document investment of at least $1.8 million (or $900,000 in certain cases) into the business; and
  3. create employment for at least ten (10) full-time U.S. workers.

The investment may consist of the contribution of various forms of capital, including cash, equipment, inventory, property and other tangible equivalents. An investment amount of $1 million is generally the minimum. However, an investment of $500,000 is acceptable if the business is situated in a “targeted” employment area, that is one that has experienced unemployment of at least 150% of the national average rate, or a rural area as designated by the U.S. Office of Management and Budget. In meeting the investment amount, an infusion of new capital (not merely a retention of profits of the enterprise) is required.

The other EB-5 program is the Regional Center program. This is ideal for the retiree or inactive investor because of its “indirect employment” feature. The Regional Center program removes the ten (10) full-time workers requirement and substitutes it with a less restrictive “indirect employment creation” requirement, allowing the investor to qualify by proving a combination of ten (10) direct and/or indirect employees who are new to the Regional Center.

The EB-5 program policy management requirement is minimal. An investor in the Regional Center program may be a limited partner and still qualify as long as the limited partners have a policy-making role. For those who are not interested in day-to-day management or running an active business, Regional Center programs offer a more inactive form of investment than do individual program investments. Regional Center programs also do not require that the investor live in the location of the investment. Instead, the investor can live anywhere in the U.S.

The U.S. Citizenship & Immigration Services (“USCIS”) gives priority to Regional Center program petitions, often leading to a quicker approval. Each Regional Center program must be pre-approved by USCIS in order to be eligible as a vehicle for EB-5 lawful permanent residence.

To obtain lawful permanent residence through investment, the applicant must present evidence that traces the legally obtained funds invested through bank transfer and other acceptable documentation from the investor directly to the investment enterprise. The money can be the investor’s own funds or those obtained in the form of a loan or gift.

After the applicant completes a comprehensive business and financial due diligence analysis of the viability of a Regional Center program investment, the applicant makes the investment and files a petition with USCIS for EB-5 status. Processing time, subject to change, is approximately 18 months.

If the applicant is legally present in the U.S., s/he then files an application to adjust status with USCIS. Processing time is approximately nine (9) to twelve (12) months and generally does not require an interview. If the applicant resides abroad, an immigrant visa application is made at the U.S. consulate having jurisdiction over the applicant’s residence and an interview is required. Processing time is essentially the same as that of an application to adjust status. With either the Individual or Regional Center program options, total processing time is approximately 27 to 30 months. Processing time however does vary depending on case-by-case circumstances.

Once EB-5 lawful permanent residence is granted, it is conditional for a period of two (2) years. In the 90 day window leading up to the expiration of the conditional status, the investor must file another petition to satisfy the USCIS that the investment has been made or is still in place and the employment requirement has been fulfilled or maintained.

Once the conditions are removed, a full green card is granted documenting lawful permanent resident status. From the filing of the conditional green card application through approval of the petition to remove the conditions on lawful permanent residence, investors should estimate time of approximately five (5) years. Thereafter and depending on the terms of the investment agreement, investors in Regional Center programs may sell their investment and still maintain their green cards.