EB5 INVESTMENT IMMIGRATION / INVESTOR VISA
To consult an immigration attorney regarding the EB5 Investment Immigration
category, please call us at (626) 642-8066 or e-mail us at email@example.com.
An attorney in our firm would be happy to assist you.
The EB5 Immigrant Investor Visa was created in 1990 to stimulate the
US economy through job creation and capital investment by foreign investors.
The EB5 visa provides a method for foreign nationals who invest $1 million
or at least $500,000 in a Targeted Employment Area (i.e., high unemployment
or rural area) in the United States of obtaining a green card.
The law allocates 10,000 EB5 immigrant visas per year for qualified
individuals seeking permanent resident status on the basis of their
engagement in a new commercial enterprise and employing at least 10
full-time US workers.
There are two distinct EB5 pathways for an immigrant investor to gain
lawful permanent residence for themselves and their immediate family,
(1) Traditional Program and (2) the Regional Center Program. Both programs
require that the immigrant make a capital investment of either $500,000
or $1 million (depending on whether the investment is in a Targeted
Employment Area or not) in a new commercial enterprise located within
the United States.
Traditional EB5 Visa Program:
In order for applicants to qualify under the Traditional EB5 Visa program,
they must meet the following three (3) requirements:
• Make an investment in a new commercial enterprise
• Make an investment of at least $1 million into that enterprise
• Create employment for at least 10 full-time US workers within
The investment may consist of various forms of capital, including cash,
equipment, inventory, property, and other tangible equivalents. An investment
amount of $1 million is generally the minimum.
EB5 Regional Center Pilot Program:
Of the 10,000 EB5 investor visas available annually, 3000 are set aside
for those who apply under a “Pilot Program.” The pilot program
provides for investments that are affiliated with an economic unit known
as a “Regional Center.” This involves a passive investment
of $500,000 made in a Targeted Employment Area (TEA) within a Designated
• A targeted employment area (TEA) is an area that, at the time
of investment, is a rural area or an area experiencing unemployment
of at least 150 percent of the national average rate.
• A rural area is any area outside a metropolitan statistical
area and outside the boundary of any city or town having a population
of 20,000 or more.
• The Pilot Program is a program that was created by Congress
in 1992 to broaden the appeal of the EB5 visa.
• A Regional Center is defined as any economic unit, public or
private, which is involved with the promotion of economic growth, improved
regional productivity, job creation, and increased domestic capital
The EB5 visa requires the applicant to be involved in the business
policy management. This policy management requirement is minimal in
that the investor can be a "limited partner" and still qualify
for EB5 visa 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.
When making an investment in a new commercial enterprise affiliated
with a US Citizenship and Immigration Services (USCIS)-designated regional
center under the Regional Center Pilot Program, an immigrant investor
may satisfy the job creation requirements through the creation of either
"direct" or "indirect" jobs. Notably, an immigrant
investing in a new commercial enterprise under the Traditional Program
may only satisfy the job creation requirements through the creation
of direct jobs. The Regional Center Program removes the employee requirement
of the Traditional 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.
• Direct jobs are actual identifiable jobs for qualified employees
located within the commercial enterprise into which the EB5 investor
has directly invested his or her capital.
• Indirect jobs are those jobs shown to have been created collaterally
or as a result of capital invested in a commercial enterprise affiliated
with a regional center by an EB5 investor.
Alien investors must:
1. Demonstrate that a "qualified investment" is being made
in a new commercial enterprise located within an approved Regional Center;
2. Show, using reasonable methodologies, that 10 or more jobs are actually
created either directly or indirectly by the new commercial enterprise
through revenues generated from increased exports, improved regional
productivity, job creation, or increased domestic capital investment
resulting from the pilot program.
The EB5 Regional Center Program Benefits
• A direct route to obtaining a Green Card
• No day-to-day business management
• Permanent residency in the United States for you, your spouse,
and any children under 21
• Live, work, and retire anywhere in the United States
• Become eligible to apply for US citizenship after 5 years of
being a green card holder
Each Regional Center program must be pre-approved by the USCIS in order
to be eligible to qualify for EB5 Green Cards.
Advantages of the EB-5 Visa Program
• The EB5 Visa (Green Card) allows you and your family to live,
work or retire anywhere within the United States.
• No Quota Backlogs. There are many delays and backlogs for employment
and family based green card categories, but there is no backlog for
the EB5 Investor Visa category.
• No Sponsor Needed. Foreign investors use their own personal
funds and do not require sponsorship from either an employer or a family
• Regional Center Investment Programs. Many of the approved EB5
regional centers allow foreign investors to invest in prearranged programs
for only $500,000 plus administrative fees.
• Permanent Residency. Foreign investors may enter a limited
partnership with few or no day-to-day management responsibilities for
their investment program. This allows foreign investors to live and
work in the United States in any capacity.
Eligibility Criteria for Permanent Residence
You may be eligible to receive permanent residence based on investment
1. You have an approved Form I-526, Immigrant Petition by Alien Entrepreneur;
2. You are admissible to the United States; and
3. An immigrant visa is immediately available.
Eligibility Criteria for EB5 Visa
Permanent resident status based on EB5 eligibility is available to
investors, either alone or coming with their spouse and unmarried children
under 21. Eligible foreign nationals are those who have invested, or
are actively in the process of investing, the required amount of capital
into a new commercial enterprise that they have established. They must
further demonstrate that this investment will benefit the US economy
and create the requisite number of full-time jobs for qualified persons
within the US.
You may be eligible for EB-5 immigrant visa:
1. If you establish a new commercial enterprise by:
• Creating an original business;
• Purchasing an existing business and simultaneously or subsequently
restructuring or reorganizing the business such as that a new commercial
enterprise results; or
• Expanding an existing business by 140 percent of the pre-investment
number of jobs or net worth, or retaining all existing jobs in a troubled
business that has lost 20 percent of its net worth over the past 12
to 24 months;
2. If you have invested, or are actively in the process of investing,
in a new commercial enterprise:
• At least $1 million; or
• At least $500,000 where the investment is being made in a “targeted
employment area,” which is an area that has experienced unemployment
of at least 150 percent of the national average rate or a rural area;
3. If your engagement in a new commercial enterprise will benefit the
U.S. economy to:
• Create full-time employment for at least ten qualified individuals;
• Maintain the number of existing employees at no less than the pre-investment
level for a period of at least two years, where the capital investment
is being made in a ‘troubled business’, which is a business
that has been in existence for at least two years and that has lost
20 percent of its net worth over the past 12 to 24 months.
You May be Eligible to Receive Conditional Permanent Residence
The EB5 investor and his or her derivative family members are eligible
for conditional permanent residence for a 2-year period upon the approval
of the I-485 adjustment of application or upon entry into the United
States with an EB5 immigrant visa.
You Are Eligible to Become a Permanent Residence
After 2 years, the entrepreneur is eligible to apply for removal of
the conditional status. To do that, the entrepreneur must have continuously
maintained the investment during the conditional residency period. The
entrepreneur's residence may be terminated if it is found the business
was not established or was established solely to evade immigration laws.
The USCIS will examine the business at the end of the 2-year period
to determine whether or not the individual has complied with all of
the EB5 visa's requirements.
In order to become a lawful permanent resident, eligible investors
must file I-829, Petition by Entrepreneur to Remove Conditions. The
I-829 petition must be filed within 90 days before the second anniversary
of the Investor’s admission to the United States as a conditional
resident. The petition will be granted if the investor has fulfilled
the EB5 requirements in accordance with the business plan in the approved
I-526 petition. Failure to file I-829 petition will result in automatic
termination of the conditional resident’s status and will initiate
Immigrant investors remain in “valid” status while their
I-829 petition is pending. Their status is supposed to be extended automatically
in one year increments until USCIS adjudicates the petition. During
that time, investors are authorized to travel and work in the United
Once conditions have been removed, a full green card is granted for
indefinite permanent resident status in the US. After 5 years of permanent
residency (including the two conditional years), an investor may apply
for US citizenship.
Your spouse and unmarried children under the age of 21 may be admitted
to the US with you on a 2-year conditional period. If your I-829 petition
to remove conditions is approved, the conditions will be removed from
your spouse and children’s Green Card status. As lawful permanent
residents (Green Card holders) your spouse and children will be authorized
to work or attend school in the US.
Capital Investment Requirements:
Types of Capital: Cash, equipment, inventory, other tangible property, cash equivalents
and indebtedness secured by assets owned by the alien entrepreneur,
provided that the alien entrepreneur is personally and primarily liable
and that the assets of the new commercial enterprise upon which the
petition is based are not used to secure any of the indebtedness.
All capital shall be valued at fair-market value in United States dollars.
Assets acquired, directly or indirectly, by unlawful means (such as
criminal activities) shall not be considered capital for the purposes
of section 203(b)(5) of the Act.
Source of Capital
• Capital does not include loans made by the investor to the
venture, however the investor may borrow the investment money if it
is secured by assets owned by the investor, provided the investor is
personally liable for repayment of the loan.
• The investor may receive a gift of funds, if all applicable
taxes required by law have been paid.
Required minimum investments
• The minimum qualifying investment in the United States is $1
• Targeted Employment Area (High Unemployment or Rural Area).
The minimum qualifying investment either within a high-unemployment
area or rural area in the United States is $500,000.
Verification of lawful source
Proof that the capital has been invested by the actual investor is
required. Assets acquired directly or indirectly by unlawful means such
as criminal activities are not acceptable capital. In practice, USCIS
is very strict about reviewing the legitimacy of funds.
The documentation should trace the capital from the investor directly
to the investment. The USCIS also requires that the investor provide
documentation that proves the source of their investment funds was obtained
legally. Proof of documentation is provided through previous tax returns
and financial statements. 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.
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.
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.
When 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 EB5 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
New Commercial Enterprise:
Evidence is required to show that you have invested in a “for
profit” new commercial enterprise, which is a commercial enterprise:
• Established after Nov. 29, 1990, or
• Established on or before Nov. 29, 1990, that is:
1. Purchased and the existing business is restructured or reorganized
in such a way that a new commercial enterprise results, or
2. Expanded through the investment so that a 40-percent increase in
the net worth or number of employees occurs
Evidence, if applicable, that your new commercial enterprise has been
established and is principally doing business in a targeted employment
Managing the New Commercial Enterprise:
Evidence is required to show that you will be actively involved in
the management of the new commercial enterprise (day-to-day or through
Job Creation Requirements:
Each foreign national EB5 Visa Investor must create at least 10 full
time US based jobs as a result of their investment. You will need to
submit a comprehensive business plan showing that, due to the nature
and projected size of the new commercial enterprise, the need for not
fewer than 10 employees will result. Include approximate dates, within
the next two years, and when each employee will be hired.
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
* Note: Regional center-affiliated cases must show that the capital
investment was made in accordance with the regional center’s business
plan in order to be credited with the creation of indirect jobs.
Requirements of Removing Conditions:
You must submit the I-829 petition within the 90-day period immediately
before the second year anniversary of your admission to the US as a
conditional permanent resident.
• Evidence that you in fact invested in a new commercial enterprise.
This evidence may include, but is not limited to, copies of the business’
organizational documents and federal tax returns.
• Evidence that you have invested or are actively in the process
of investing the total amount of required funds.
• Evidence that you have sustained your investment in the new
commercial enterprise throughout your two-year period of conditional
permanent residence. This evidence may include, but is not limited to,
-Business invoices and receipts
-Audited or reviewed financial statements.
-Complete copies of federal or state income tax returns or quarterly
• Evidence that you created or will create within a reasonable
time 10 full-time jobs for qualifying employees. Such evidence may include,
but is not limited to:
-Business payroll records
-Relevant tax documents
-Employee Forms I-9
• The same documentary requirements for job creation mentioned
above, except that the investor must show that he or she has maintained
(not created) the number of existing employees at no less than the pre-investment
level for the period following his or her admission as a conditional
*Note: To be approvable, at least 10 jobs must be maintained.
*Note: Regional center-affiliated cases must show that the capital
investment was made in accordance with the regional center’s business
plan in order to be credited with the preservation of indirect jobs.
A Regional Center is defined as any economic unit, public or private,
which is involved with the promotion of economic growth, improved regional
productivity, job creation, and increased domestic capital investment.
In more simple terms, a Regional Center is an area designated by the
USCIS as eligible to receive immigrant investor capital. A Regional
Center obtains its designation by submitting a detailed application
to U.S. Citizenship and Immigration Services (USCIS).
The organizers of a regional center seeking the regional center designation
from USCIS must submit a proposal showing:
1. How the regional center plans to focus on a geographical region
within the United States, and must explain how the regional center will
achieve economic growth within this regional area;
2. That the regional center’s business plan can be relied upon
as a viable business model stating market conditions, project costs,
and activity timelines;
3. How in verifiable detail (using economic models in some instances)
jobs will be created directly or indirectly through capital investments
made in accordance with the regional center’s business plan;
4. The amount and source of capital committed to the project and the
promotional efforts made and planned for the business project.
*Current USCIS List of Designated EB5 Regional Centers:
Application Process Overview
The EB-5 visa is a three step self-petitioning process consisting of
Immigrant Petition by Alien Entrepreneur (I-526), Conditional Permanent
Residence by Adjustment of Status (I-485)/Consular Processing, and Removal
of Conditional Residency (I-829).
Seek Status as an Immigrant Investor
In order to seek status as an immigrant investor, you must file CIS
Form I-526, Immigrant Petition by Alien Entrepreneur. The Form I-526
must be filed with supporting documentation which clearly demonstrates
that the individual’s investment meets all requirements, such
1. Establishing a new commercial enterprise,
2. Investing the requisite capital amount,
3. Proving the investment comes from a lawful source of funds,
creating the requisite number of jobs,
4. Demonstrating that the investor is actively participating in the
business; and, where applicable,
5. Creating employment within a targeted employment area.
Obtain Status as a Conditional Resident
Once the I-526 petition is approved, immigrant investors may obtain
status as a conditional resident by:
1. Filing USCIS I-485, Application to Register Permanent Residence
or Adjust Status, if residing within the United States; or
2. Applying for immigrant visa at a US Embassy or Consulate abroad,
if residing outside the United States.
Filing for Removal of Conditional Residency (I-829)
Within 90 days of the 2-year conditional green card’s expiration
date, the investor must file I-829, Petition by Entrepreneur to Remove
the Conditions, to request removal of conditional permanent residency.
This must be filed with the California Service Center. Determination
of whether to remove conditions on the green card will be made within
90 days of filing or interview, whichever is later.
An overview of the EB5 procedure is as follows:
1. Select a suitable US immigration attorney and then the Regional
Center EB55 project. Many relevant documents concerning the Regional
Center and the particular EB5 project must be reviewed. Most EB5 potential
investors do not even know which documents should be reviewed with more
attention, and this is where an experienced EB5 attorney can help.
2. Sign standard documents, such as a Retainer Agreement with the selected
US immigration attorney, Subscription Agreement to participate in a
particular Regional Center EB5 project.
3. Start preparing necessary documents for the submission of I-526
immigrant petition, and then get the requisite funds ready to be deposited
into a designated escrow account.
4. After placing the requisite funds in the designated escrow bank,
submit the I-526 petition with the USCIS. I-526 receipt notice is usually
sent within 2 weeks after the submission of I-526 petition.
5. After the I-526 petition is approved, either consular process via
National Visa Center and the American Embassy located at your country
of residence, or if you are legally in the United States, file I-485
adjustment application with the USCIS for conditional green card.
6. Wire the requisite funds in the escrow account to the Limited Partnership
bank account in the United States. The Limited Partnership has been
created specifically for each EB5 Regional Center project.
7. Enter the United States as Intending Immigrant and acquire Conditional
Permanent Resident status as of the initial entry date as Intending
8. Between 21 to 25 months after the CPR acquisition date, apply for
I-829 conditions removal application with the appropriate documents,
including evidence of job-creation (directly, indirectly or a combination).