The EB-5 visa program is a way for a non-citizen to get a Green Card through an investment. It is very popular among high net worth individuals who are looking to get permanent residence in the U.S. but do not fit into any other visa category.
In order to qualify for an EB-5, a noncitizen must:
- Invest at least $1 million ($500,000 in some areas)
- In a new commercial enterprise
- Such that 10 U.S. jobs are created
$1 million versus $500,000
In most areas, an EB-5 investment must be at least $1 million. There are certain areas, however, in which an investment need only be at least $500,000. These are called Targeted Employment Areas and include rural and high unemployment areas. Rural areas are defined as places that are far away from big cities and not in any city or town with more than 20,000. An area will be considered high unemployment if the unemployment rate in that area is at least 150% of the national average. An experienced EB-5 immigration attorney can help you identify which areas a business only needs a $500,000 investment to start.
New Commercial Enterprise
In order to qualify, an EB-5 investor must invest in a new commercial enterprise. This is defined as either a business that was established after November 29, 1990, a business that is restructured and reorganized so significantly that a new enterprise results, or a business that expands at least 40 percent because of the EB-5 investment.
The EB-5 investor must be in a position to have some control over the enterprise and not just a passive investor. The U.S. government has said that being a limited partner is sufficient to meet this requirement.
10 U.S. Jobs
In order to get an EB-5 investor green card, an investor must also create 10 U.S. jobs from the investment. These jobs can be for U.S. citizens, permanent residents, or other immigrants that have general work authorization, like asylees. The investor and any temporary nonimmigrant workers do not count towards the 10 job requirement.
The jobs must be full time and continuous. Two part time jobs do not equal one full time job, and seasonal workers do not count.
Capital Must be at Risk
An investor’s money must be at risk in order to qualify for an EB-5 visa. An investor cannot make a loan to the new commercial enterprise, and cannot get a guarantee for his or her investment. An investor can borrow money from a third party to finance the investment, but they must be liable to pay off the loan in case the investment fails.
Direct Investment versus Regional Center
There are two ways to go about making an EB-5 investment – a direct investment or a regional center. In a direct investment, the EB-5 visa seeker, alone or with partners, invests and creates a new commercial enterprise. The 10 job requirement must be met upon filing for the EB-5 visa or show that the requirement can be reasonably met within two years.
A regional center is a commercial enterprise that already exists and has been approved by the U.S. Citizenship & Immigration Services (USCIS). (Note that a regional center designation does not guarantee that it will lead to a green card, so it is best to consult with an experienced EB-5 visa attorney before investing.) The 10 job requirement is relaxed for regional centers, so the requirement can be met by showing that the investment will create the jobs indirectly. Many of the existing regional centers are organized in targeted employment areas to take advantage of the lower $500,000 threshold for an EB-5 visa. You can get a list of current regional centers from an EB-5 attorney or the USCIS’s website.
Generally, EB-5 visa investors who do not wish to be too active in managing their investment choose to go with a regional center. Direct investments tend to have a higher return on investment on average, but they are riskier. Of course, every investment is different.
The EB-5 Visa Process
There are many steps to go through in order to get an EB-5 investor green card.
- First, the investor must choose where to invest his or her money.
- Next the investor must actually make the investment. Regional Centers often hold the investment in escrow until the next step is completed, as do some direct investments, but every investment is different.
- Next the investor applies to USCIS for an EB-5 visa.
- Once this application is approved, the EB-5 investor can apply for a conditional green card. The investor will apply at a U.S. consulate if they are out of the U.S. or with USCIS if they are in the country. The investor can also apply for a green card for his or her spouse and any unmarried children under 21.
- At this point the investor receives a “conditional” green card, which is good for two years.
- After two years, the investor can apply to have the conditions removed, which would make the green card permanent. At this point USCIS again checks the investor and the commercial enterprise to make sure that all the conditions of the EB-5 visa program have been met. Many people lose their green cards at this step, so it is a big advantage to have an experienced EB-5 visa attorney assisting at every step.
The U.S. government places a limit of 10,000 EB-5 Green Cards per year, of which 3,000 go to Targeted Employment Areas (TEAs) and another 3,000 go to regional centers. This limit has never been reached in the history of the EB-5 program, giving investors an advantage over other family and employment based Green Cards that have long backlogs.
If you are interested in an EB-5 visa and you think you might qualify, contact an experienced EB-5 attorney for more information.