The EB-5 Visa Allows You to Live Permanently in the United States
The U.S. EB-5 Immigrant Investor Program (“EB-5 Program”) is the most flexible immigration program in the world. The U.S. has no requirements with respect to age, business training and experience or language skills. Permanent residents need not be continuously and physically present in the United States, and they can maintain business and professional relations in their country of origin.
The EB5 Visa program however, is a complex application process and the most important step is finding a qualified, experienced team to work with throughout to ensure that you achieve your immigration goals and obtain a green card to immigrate to the USA.
Immigration and relocation can be expensive processes and require detailed pre-planning to ensure that all of your financial, tax, and immigration goals are accomplished.
We are able to assist you in virtually every facet of your relocation, from assisting in your pre-immigration financial planning to assisting in setting up your new commercial venture to choosing the right EB5 regional center to getting the most competitive exchange rate for your currency transfers or making informed decisions about schools for your children.
We provide the consultation, advice, education and assistance you’ll require throughout the relocation process. Our team of specialists includes expert EB5 immigration attorneys, relocation wealth management finance specialists, real estate specialists and title, tax and securities attorneys.
This allows us to provide you with the pros and cons of using the EB5 visa program as a route to US immigration.
BENEFITS OF THE EB-5 VISA
A direct route to a Green Card
No day-to-day business management (EB-5 Regional Center Pilot Program.)
Permanent residency in the United States for you, your partner and any children under 21 (this is especially helpful when children are planning on attending a US university, allowing them to obtain a Green Card during their studies)
Live, work and retire anywhere in the United States
Become a U.S Citizen after 5 years of being a green card holder
No Quota Backlogs – There are many delays and backlogs for employment and family based green card categories but there is no backlog for the EB-5 Visa Investor category.
No Sponsor Needed – Foreign investors use their own personal funds and do not require sponsorship from either an employer or a family member.
The Different EB-5 Visa Options
There are two main EB-5 programs – the Basic EB-5 Visa Program and the EB-5 Regional Center Pilot Program.
Option 1 – Basic EB-5 Visa Program
This involves a passive investment of at least $1,000,000
In order for an applicant to qualify under the Basic EB-5 Visa program, they must meet the following requirements:
- Make an investment in a new commercial enterprise.
- Make an investment of at least $1 million into that enterprise.
- Lead to the creation of employment for at least 10 full-time U.S. workers.
Direct job creation only
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.
Option 2 – EB-5 Regional Center Pilot Program
This involves a passive investment of at least $500,000 made in a ‘Targeted Employment Area’ (TEA) within a Designated Regional Center.
The EB-5 policy management requirement is minimal in that the investor can be a limited partner and still qualify as long as the limited partners have a policy-making role. Thus, for those who are not interested in day-to-day management or running an active business, Regional Center programs offer a more acceptable inactive form of investment.
The investor is not required to live in the place of investment; rather, he or she can live wherever he/she wishes in the United States.
The EB-5 Regional Center program is ideal for the retiree or inactive investor due in large part to the “indirect employment” feature of this program. The Regional Center Program removes the employee requirement of the Regular program and replaces it with a less restrictive “indirect employment creation,” which allows the investor to qualify by proving a combination of 10 direct and/or indirect employees.
EB-5 Visa Investment Requirements
Investment Amount – Designated Regional Centers
The investor is required to invest a reduced amount of $500,000 as the EB-5 Visa investments are within a Targeted Employment area (TEA). This $500,000 amount is the minimum allowed by U.S law to qualify for the EB-5 Visa/Green Card in a high unemployment area (TEA) which is defined as 150% of the national average unemployment statistic.
Job Creation Requirements
Each foreign national EB-5 Visa Investor must create at least 10 full time U.S. based jobs as a result of their investment.
In Designated Regional Centers, the job creation requirement can utilize both direct and indirect job creation to prove they have met the USCIS requirement.
If the investment is not in an approved regional center the jobs must be directly created by the entity the investor is investing in.
Source of Investment Funds
The investor must demonstrate that their $500,000 EB-5 Visa investment capital is from a legal source.
The regulations prohibit the use of assets acquired, directly or indirectly, by unlawful means (such as criminal activities).
It is required to document the legal acquisition of the EB-5 Visa investment funds.
A petitioner cannot establish the lawful source of funds merely by submitting bank letters or statements documenting the deposit of funds. Without documentation of the path of the funds, the petitioner cannot meet his burden of establishing that the funds are his own funds. Simply stating without supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof.
The EB-5 Investor can also show a “pattern of income” to justify the EB-5 investment. Income tax records should be submitted, preferably for a period beyond the five years required by the regulations. Also provide savings and personal investment records to prove that even if a petitioner has not earned a substantial annual income, there is a credible claim that the necessary funds were accumulated over time.
An investor may receive a gift of funds however in that case the USCIS will require information and track the source of the funds from the person who gave the gift.
Proving the Source of Funds obtained by loan. Clearly, it is difficult enough to prove that one’s own funds are, indeed, one’s own. When the funds are obtained by loan, there may be even greater scrutiny. The regulations expressly prohibit using loan money for EB-5 Visa purposes if the loan is obtained by using the new commercial enterprise as security. It does not matter if the loan is from a third party lender or the enterprise itself. In either case the petition will be denied if the loan is secured by the new commercial enterprise.
The EB-5 Visa investment must be “at risk”
The EB-5 Visa applicant’s capital investment must be truly “at risk” and not simply a loan.
As per federal guidelines of the EB-5 pilot program, Regional Centers are not allowed to guarantee the return of your investment – it has to be “at risk”. There can be no mention of redemption rights or guarantees.
Guarantees of return of any capital are strictly prohibited, and if given negate the “at risk” requirement of the EB-5 law and the investors petition will be denied. The entire capital must be “at risk” and therefore reserve accounts are also not allowed.
Notable EB-5 Investments
Some of the more noteworthy EB-5 funded investments include:
▪Time Warner borrowed $100 million in EB-5 funds and $47.5 million in two separate offerings to underwrite movie and TV production.’
▪Lionsgate Studios borrowed $66 million in EB-5 funds and $50 million in two separate offerings to underwrite movie production.
▪Pennsylvania Convention Center Authority borrowed $122 million as part of the financing package to expand the Pennsylvania Convention Center.
▪University of Pittsburgh Medical Center borrowed $70 million toward the construction of a healthcare facility.
▪Comcast Corporation borrowed $26 million to finance the construction of its headquarters.
▪Sugarbush Resort (Vermont) borrowed $40 million to finance the construction of three retail/hotel-condo buildings.
What kinds of people invest in the EB-5?
The majority of EB-5 investors who choose to pursue the EB-5 route are people who wish for their children better opportunities in the United States of America.
For people that can afford to invest $500,000 for at least five years, the EB5 visa is an option worth considering.
The following types of investors are seeking Regional Center or Direct EB-5 cases:
People who have dependent children about to turn 21 years old and want to attend a US university to live and work in the US after graduation.
People who have a difficulty in pursuing L-1 visas. Now, more than ever, L-1 visas are viewed more stringently than before, especially in countries such as China and Russia.
People who cannot afford to wait too long under the current labor certification avenues to green cards.
People who are denied non-immigrant visas on certain grounds.
People who are denied EB-1 cases on RFEs.
People who are shut out of H-1B quotas.
Whose country is not an E-2 treaty country with the U.S.; and cannot pursue E-2 visa.
Doctors who practically have no other ways to immigrate.
People who might not want to pursue Direct, Individual EB-5 case for various reasons.
How long does the EB-5 Process take?
The most frequently asked question we get from prospective investors is “How soon after I apply for the EB-5 visa can I enter the United States?” You can expect to be able to enter the country in approximately one year.
1. Selecting the right Regional Center project (1 to 3 months): choosing the right project can take longer than you expect. In addition to the time it takes to learn about the process enough to be comfortable about investing, potential investors also might have to wait until a prospective project they learned about through pre-launch information opens and accepts subscribers.
2. Preparing the application (approximately 1 month): this is the time that it will take your lawyer to prepare the application.**
3. Form I-526 review (6 to 9 months): the current USCIS processing time is 5 months. But Regional Centers are reporting longer wait periods. Once the I-526 is approved, your funds are released from the Regional Center’s escrow account. (If Premium Processing is introduced, this stage will be reduced to 2 weeks)
4. Consulate interview or Adjustment of Status Form I-485 filing (4 to 9 months): This timing depends on where you are and how backlogged the USCIS is – this is why you will see many different websites showing different numbers for this part.
After this stage you can enter the United States on your conditional greencard which is valid for two years.
5. Filing for Removal of Conditions Form I-829: this filing is done during the period between the 21st and 24th month after receiving your conditional greencard. This process takes approximately 6 to 9 months.
6. Five years after receiving your conditional greencard you can apply for U.S. citizenship.
** Please note that if your home country has currency restrictions this can add more time to the timeline. (This does not mean that a prospective investor should start wiring funds to save time prior to consulting with his or her attorney.)