A Comprehensive Overview of the EB-5 Capital Investment Visa Program and its Eligible Businesses, Including Recent Reforms

The EB-5 visa offers a range of benefits to foreign investors and their families, including the opportunity to obtain permanent residency (a green card), access to world-class education and healthcare systems, a strong job market, and the ability to apply for U.S. citizenship after five years. These advantages make the EB-5 visa an appealing option for individuals looking to invest in the U.S. and secure a brighter future for themselves and their families.

Role of Immigration Attorneys and Consultants

The complex EB-5 application process can be made easier by working with experienced immigration attorneys and consultants. These professionals play a crucial role in helping investors identify suitable projects, preparing and submitting necessary documentation, and guiding them through the entire process to ensure compliance with program regulations. Engaging the services of experienced professionals can minimize risks and maximize the chances of a successful application.

2022 EB-5 Reform and Integrity Act

The 2022 EB-5 Reform and Integrity Act allows applicants to stay in the U.S. while their application is processed, provided they meet specific conditions for Adjustment of Status (AOS). They may also apply for a work and travel permit but must maintain valid nonimmigrant status.

Requirements for the EB-5 Visa

To qualify for the EB-5 visa, foreign investors must meet specific requirements:

1. Investment Amount: Investors must invest a minimum of $1.05 million in a new commercial enterprise, or $800,000 in a targeted employment area (TEA). TEAs are rural areas or locations with high unemployment rates, designated by the U.S. government to encourage economic growth.

2. Job Creation: The investment must create at least 10 full-time jobs for U.S. workers within two years of the visa approval.

3. At-Risk Capital: The investment capital must be at risk for the duration of the investment, with no guarantees of return.

4. Lawful Source of Funds: The investment funds must come from a legal source, such as earned income, sale of property, or inheritance.

Capital Investment Requirements

The EB-5 capital investment requirement involves a minimum investment of $1.05 million for high-employment areas and $800,000 for targeted zones, such as rural or high unemployment districts (150% of the national unemployment rate). It is crucial for investors planning to apply after 2026 to be aware that the minimum investment will increase to account for inflation. Starting January 1, 2027, and every five years thereafter, the minimum investment amounts required for the EB-5 program will be adjusted for inflation. This means that the minimum investment amount will rise over time, potentially affecting your eligibility and the amount you need to invest to qualify for the program.

Investing in a Regional Center

vs. Creating an Own EB-5 Business

The EB-5 visa program allows investors to either invest in a USCIS-approved Regional Center or create their own EB-5 compliant business. There are key differences between these two investment options:

Regional Center Investment

Regional Centers are entities sanctioned by USCIS to pool EB-5 investments and supervise the development of multiple projects. By investing in a Regional Center, investors can take a more passive role, as the center handles investment management and job creation tasks. Under the new law, investors must utilize a Regional Center if they wish to combine resources with other investors.

In the context of the EB-5 visa program, a Regional Center is a private organization designated by the United States Citizenship and Immigration Services (USCIS) to foster economic growth, job creation, and capital investment within specific geographic areas and industries. The EB-5 Regional Center program plays a vital role in attracting foreign investors who contribute to the U.S. economy and generate jobs for American workers. Reauthorizing the program is crucial, as it ensures the persistence of this advantageous economic catalyst.

Following the most recent reauthorization, the EB-5 Regional Center program has been extended through September 30, 2027. This extension offers a stable and predictable environment for foreign investors to support the U.S. economy and create job opportunities.

From an investor’s perspective, there are a few additional points to consider when participating in the EB-5 Regional Center program:

1. Due Diligence: Thoroughly research and evaluate the Regional Center and the projects they manage. Assess the track record of successful projects, job creation, and the return on investment. Engage with experienced professionals, such as immigration attorneys and financial advisors, to guide you through the process. Conducting comprehensive due diligence can help mitigate potential risks and increase the likelihood of a successful investment outcome.

2. Risk Management: Be aware that investments through a Regional Center are not guaranteed. Investors should be prepared for potential risks associated with the projects, including financial and operational challenges that may impact job creation or the return of capital. Understanding and managing these risks can help you make more informed decisions about the investment and project selection.

3. Exit Strategy: Consider the exit strategy for the investment, as the EB-5 program requires that the investment remains “at risk” for a certain period. Ensure that you understand the process of recovering your investment and any potential restrictions on the return of capital. A well-defined exit strategy can provide clarity on how and when you can expect to recover your investment.

4. Timelines: Be mindful of the processing timelines for the EB-5 visa program. The approval process can take several months or even years, depending on the project and the current backlog at USCIS. Working with a Regional Center may also incur additional delays, as they need to raise capital from other EB-5 applicants. Plan accordingly to manage expectations and prepare for potential delays.

Direct EB-5 Business Investment

Investors have the alternative of establishing their own EB-5 compliant business, which demands a more active role in managing the enterprise and guaranteeing that the investment generates the necessary number of jobs. This option might be more fitting for investors with entrepreneurial ambitions or those who desire greater control over their investment.

Visas Reserved for Targeted Zones

The EB-5 program reserves a certain percentage of the approximately 10,000 EB-5 visas available annually for immigrants who invest in specific areas. 20% of visas are allocated for rural development, 10% for distressed urban/high-unemployment areas, and 2% for infrastructure projects. By investing in a Targeted Zones project, you can not only invest a minimum of $800,000 but also improve your chances of obtaining a U.S. green card and permanent residency.

Application Process

Under the EB-5 Reform and Integrity Act, eligible investors and their family members can concurrently file Form I-485, Application to Register Permanent Residence or Adjust Status, with the EB-5 investor’s Form I-526, Immigrant Petition by Alien Investor. This allows them to stay in the U.S. until they receive a green card, provided they meet specific conditions outlined in the Adjustment of Status (AOS) provision.

While waiting for their EB-5 visa approval, applicants can apply for a two-year work and travel permit, allowing them to work and travel during the application process. However, maintaining a valid nonimmigrant status until Form I-526 is approved is crucial, as applying for an EB-5 visa does not automatically extend their stay in the U.S. if their nonimmigrant visa is about to expire. If their nonimmigrant status expires before Form I-526 is approved, they may need to leave the U.S. and apply for an EB-5 visa through consular processing abroad.

The EB-5 Reform and Integrity Act aims to increase stability and predictability in the EB-5 program. As the Act introduces significant changes to the program, applicants must be aware of the requirements and maintain their nonimmigrant status throughout the application process to ensure they can stay in the U.S. while awaiting their EB-5 visa approval and ultimately achieve their goal of obtaining a green card.

It is crucial to understand that the timeline for obtaining the EB-5 visa can vary significantly, primarily due to the processing time for the initial I-526 petition. Factors such as the investor’s country of origin, case complexity, and USCIS processing times can cause the processing period to range from several months to a few years. To provide a clearer picture of the timeline, the I-526 petition, consulate processing, adjustment of status, and any other relevant factors impacting the timeline should be considered when discussing the steps involved in obtaining the EB-5 visa.

Source of Funds

One of the most challenging aspects of the EB-5 visa application is establishing and documenting the source of funds. As an EB-5 applicant, it is essential for you to provide detailed documentation and evidence of the source of funds used for your investment. The primary objective is to ensure that the invested capital is derived from lawful sources and has no connection to illegal activities.

When applying for an EB-5 investor visa, your funds must meet specific criteria. To demonstrate that your funds are eligible, you will need to complete an I-526 petition. Verifying that your EB-5 investment funds come from a lawful source is a critical aspect of the I-526 petition. Therefore, it is strongly advised to collaborate with an experienced EB-5 immigration attorney who has previously worked with applicants from your country of origin.

The source-of-funds requirements for investors participating in direct investments and regional center projects are the same. The initial EB-5 petition, Form I-526, must be submitted along with documentation about the new commercial enterprise and information about the investor’s source of investment funds. Examples of documents that may be needed to prove the source of funds include tax returns, earning statements, bills of sale certificates, and gift agreements if funds were gifted.

Additional sources of funds for EB-5 applicants may include loans from friends or family members, gifts, dividends or profits from business ownership, retirement funds or pensions, life insurance proceeds, the sale of stocks or other investments, lottery winnings or gambling proceeds, and rental income.

For each source of funds, it’s essential to provide documentation that verifies the funds have been obtained through lawful means, such as loan agreements, gift letters, business financial statements, tax returns, investment sale proceeds, or lottery/gambling award notifications.

If EB-5 investors obtain funds from third-party sources such as a loan from a bank or financial institution, they must document the source of funds and provide collateral against which the loan was secured. Documenting the source and path of funds is a complex and time-consuming process. Thus, it is highly recommended that you retain an experienced immigration attorney with extensive knowledge of EB-5 regulations and the local laws and regulations of your country of origin.

Keep in mind that mistakes in determining and documenting the lawful source of funds can lead to unnecessary delays in adjudication or even petition denial. By working with an experienced immigration attorney, you can help ensure a smoother application process and improve your chances of a successful outcome.

Timeline to the Green Card

Becoming a U.S. Citizen

After obtaining the EB-5 visa, investors and their families go through several stages, including holding a conditional green card, filing the I-829 petition to remove conditions on their residency, obtaining a permanent green card, and eventually applying for U.S. citizenship. The entire process, from initial investment to U.S. citizenship, can take between 7 to 10 years, depending on individual circumstances and processing times.

What Happens if the EB-5 Program Ends?

“Grandfathering” is a term used in the context of the EB-5 visa to describe a rule that allows certain applications to continue being processed even if the program ends or experiences changes. Foreign investors who have submitted their applications within the given time frame will still have their cases reviewed and processed, even if the program isn’t renewed. Specifically, if the government does not renew the regional centers connected to the EB-5 program after it expires on September 30, 2027, the Department of Homeland Security (DHS) will still process applications submitted on or before September 30, 2026.

Conclusion

The EB-5 visa program offers foreign investors an opportunity to obtain U.S. permanent residency while contributing to the growth of the American economy. With recent reforms and reauthorization of the Regional Center program, the EB-5 visa has become even more attractive for those looking to invest in the United States. As with any investment, potential risks and challenges should be carefully considered, and engaging experienced professionals can help ensure a successful application process. By investing in the right project and complying with all program requirements, investors and their families can reap the benefits of the EB-5 visa program and achieve their American dream.

EB-5 Lexicon:

• EB-5 Visa: A U.S. visa program that allows foreign investors to obtain permanent residency (green card) by investing in a qualifying project that creates jobs in the United States.
• Green Card: A document that grants permanent residency status in the United States, allowing the holder to live and work in the country indefinitely.
• Permanent Residency: The status of being a legal resident of the United States with the right to live and work in the country indefinitely.
• U.S. Citizenship: The status of being a legal citizen of the United States, with all the rights and privileges that come with it.
• Direct EB-5 Business Investment: An option for EB-5 investors to establish their own business, requiring a more active role in managing the enterprise and ensuring job creation.
• TEA (Targeted Employment Area): A rural area or location with high unemployment rates, designated by the U.S. government to encourage economic growth. Investments in TEAs require a lower minimum investment amount for the EB-5 visa.
• Job Creation: A requirement of the EB-5 visa program that mandates the creation of at least 10 full-time jobs for U.S. workers within two years of visa approval.
• Lawful Source of Funds: The requirement that EB-5 investment funds must come from legal sources, such as earned income, sale of property, or inheritance.
• Regional Center: An entity sanctioned by USCIS to pool EB-5 investments and supervise the development of multiple projects. Regional Centers allow investors to take a more passive role in the investment process.
• I-526 Petition: The Immigrant Petition by Alien Investor, which is the initial petition filed by an EB-5 investor to demonstrate eligibility for the EB-5 visa program.
• I-829 Petition: The Petition by Investor to Remove Conditions on Permanent Resident Status, filed by EB-5 investors to remove the conditions on their green card and obtain permanent residency.
• Adjustment of Status (AOS): The process of changing from a nonimmigrant visa status to permanent resident status while in the United States.
• 2022 EB-5 Reform and Integrity Act: Legislation that introduced changes to the EB-5 visa program, including allowing applicants to stay in the U.S. while their application is processed and centralizing the designation of TEAs.
• Grandfathering: A rule that allows certain EB-5 applications to continue being processed even if the program ends or experiences changes.
• USCIS (United States Citizenship and Immigration Services): The U.S. government agency responsible for overseeing immigration and naturalization processes, including the EB-5 visa program.
• DHS (Department of Homeland Security): The U.S. government department responsible for public security, including immigration and border security. DHS oversees USCIS.
• Consular Processing: The process of applying for an immigrant visa (such as the EB-5 visa) at a U.S. embassy or consulate abroad. This is an alternative to Adjustment of Status for individuals who are not in the U.S. when their I-526 petition is approved.
• Nonimmigrant Visa: A temporary visa that allows foreign nationals to enter the U.S. for a specific purpose and duration, such as tourism, study, or temporary work. Nonimmigrant visa holders must maintain their status while awaiting EB-5 visa approval.
• Form I-485: The Application to Register Permanent Residence or Adjust Status, filed by eligible EB-5 investors and their family members to adjust their status to permanent residents while in the U.S.
• Business Plan: A document outlining the investment strategy, job creation plan, and projected financial performance of an EB-5 investment. A customized business plan is required for direct EB-5 business investments.
• Compliance Management: Ensuring adherence to EB-5 program requirements, such as maintaining the “at risk” status of the investment and meeting job creation targets.
• Distressed Urban/High-Unemployment Areas: Urban areas with high levels of unemployment or economic distress. A portion of EB-5 visas is allocated for investment in these areas.
• Rural Development: Economic development projects in rural areas, which are typically outside of major metropolitan areas. A portion of EB-5 visas is allocated for investment in rural development projects.
• Infrastructure Projects: Projects related to the construction or improvement of public facilities and systems, such as transportation, utilities, and telecommunications. A portion of EB-5 visas is reserved for investment in infrastructure projects.
• Gift Agreements: Legal documents that outline the terms and conditions of a gift of funds, which may be used as a source of EB-5 investment capital.
• Loan Agreements: Legal documents that outline the terms and conditions of a loan, which may be used as a source of EB-5 investment capital.
• Financial Statements: Documents that provide a summary of an individual’s or business’s financial activities, including income, expenses, assets, and liabilities. These may be used to document the lawful source of EB-5 investment funds.
• Tax Returns: Documents filed with tax authorities that report income, expenses, and other financial information. These may be used to document the lawful source of EB-5 investment funds.
• Earning Statements: Documents that provide a summary of an individual’s earnings from employment or other sources. These may be used to document the lawful source of EB-5 investment funds.
• Bills of Sale Certificates: Documents that provide evidence of the sale of property or assets. These may be used to document the lawful source of EB-5 investment funds.
• Dividends: Payments made to shareholders from a company’s profits. Dividends may be used as a source of EB-5 investment capital.
• Retirement Funds: Savings accumulated for retirement, which may be used as a source of EB-5 investment capital.
• Life Insurance Proceeds: Payments received from a life insurance policy, which may be used as a source of EB-5 investment capital.
• Lottery Winnings: Money won from a lottery or gambling, which may be used as a source of EB-5 investment capital.
• Rental Income: Income received from renting out property, which may be used as a source of EB-5 investment capital.