EB-5 Investor Visa Comprehensive Guide

If you are an ambitious foreign investor seeking a path to live and work in the United States, the EB-5 investor visa program, established by Congress in 1990, might be the key. This program grants qualifying investors, EB-5 investors, the opportunity to obtain an investor green card, granting them permanent residency in the U.S.

This guide will help you with all the necessary information about the EB-5 program, including eligibility criteria, the latest program updates, EB-5 visa fees and processing times, the EB5 application process, etc. Whether you dream of launching your own U.S. venture or contributing to a regional development project, this guide will be your roadmap to navigating the exciting world of EB-5 investor visas.

What Is EB5 Visa?

Since its pilot launch in 1992, the EB-5 program has stimulated the U.S. economy by attracting foreign capital and fostering job creation. Traditionally, investors could participate directly in a U.S. business or through USCIS-designated regional centers that pool investment funds for larger projects.

However, a significant update occurred in 2022 with the signing of the EB-5 Reform and Integrity Act. This act introduced new requirements and established a September 30, 2027, deadline for immigrant visas authorized under the Regional Center Program.

It’s important to note that this program is called “EB-5” because it refers to participants’ employment-based fifth preference visa category.

What Is the Purpose of Regional Centers Concerning the Investment Visa in the U.S.A?

The EB-5 visa program offers foreign investors two main ways to qualify: through a U.S. business or USCIS-approved regional centers.

These regional centers can be public or private entities crucial in boosting the U.S. economy. By focusing on economic growth initiatives, they create opportunities for job creation and attract foreign capital investment.

Importantly, regional centers are designated explicitly by USCIS to participate in the Immigrant Investor Program, allowing qualified foreign investors to contribute to these projects and potentially obtain a green card.

What Are the EB5 Visa Reservations (Set-Asides)?

The EB-5 Reform and Integrity Act introduced a new system for allocating a portion of EB-5 visas each year. This system, known as “set-asides,” reserves specific visas for investors who invest in certain designated areas.

Here’s a breakdown of the set-asides:

EB-5 Immigrant Visa Set-Asides by Investment Area

Investment Area

Rural Area

High Unemployment Area

Infrastructure Project

Set-Aside Percentage (per Fiscal Year)

20%

10%

IMPORTANT! Any unused visas within these set-aside categories are carried over to the following fiscal year for potential use by qualified EB5 investors in that category. After two fiscal years, if there are still unused visas within a set-aside category, they are released back into the general pool of unreserved EB-5 visas.

The Eligibility Criteria for the EB-5 Investor Visa

The EB-5 visa is a route to permanent U.S. residency for foreign investors who meet specific criteria. To be eligible, you must fulfill both of the following EB5 visa requirements:

Investment: You must make a qualifying investment in a new commercial enterprise in the United States.
Job creation: You must create or preserve at least ten full-time jobs for qualified U.S. workers within two years of obtaining your conditional green card. These jobs must be permanent, meaning they offer full-time wages and benefits.

Let’s discuss the E.B. 5 visa requirements based on these eligibility criteria.

1. Requirements for the New Commercial Enterprise in the EB-5 Visa Program

All EB-5 applicants must invest in a new commercial enterprise with specific criteria to ensure it contributes to the U.S. economy.

What Is a "New Commercial Enterprise" for the EB5 Visa Program?

There are three ways an enterprise can qualify as “new” for the EB-5 program:

Established after November 29, 1990: This is the most straightforward way for an enterprise to be considered new. Any business formed after this date automatically qualifies.
Established before November 29, 1990, but undergoes significant restructuring: If a business existed before the specified date, it could still qualify as “new” if it undergoes substantial changes like being purchased and subsequently restructured or reorganized into a fundamentally different entity.
Expansion of an existing business: An existing business established before November 29, 1990, can also qualify as new through significant expansion. This expansion must result in at least a 40% increase in either the net worth of the business or the number of employees it employs.

What Types of Entities Qualify as Commercial Enterprises for the Investment Visa in the U.S.A.?

The EB-5 program offers flexibility regarding the legal structure of the chosen commercial enterprise. It can be any for-profit entity actively conducting lawful business, including:

Sole proprietorship
Partnership (limited or general)
Holding company and its subsidiaries (each subsidiary being a wholly-owned for-profit business)
Joint venture
Corporation
Business trust
Limited liability company (L.L.C.)
Other publicly or privately owned entities

IMPORTANT! Non-commercial activities, like owning and operating a personal residence, are not eligible for EB-5 investment!

By meeting these requirements, the EB-5 program ensures that investor funds contribute to creating or expanding actively operating businesses that contribute to the U.S. economy.

2. The EB5 Investment Amount

Next on the list of EB5 visa requirements is the EB-5 capital amount. USCIS sets the capital investment requirements and depends on the EB5 petition filing date and the investment’s location. But let’s get into more precise details, shall we?

The EB-5 visa program requires foreign investors to invest substantially in a U.S. commercial enterprise. This investment must meet specific criteria and minimum amounts to qualify for the visa.

What Is "Capital" Concerning the Green Card Investment Petition?

Understanding “capital” is crucial for navigating the EB-5 investor visa program. This section clarifies what constitutes acceptable investment funds and what is excluded when meeting the program’s requirements.

Included EB5 capital: Cash, real estate, personal property, and other tangible assets legally owned and controlled by the investor. USCIS values all at their fair market value in U.S. dollars.
Excluded EB-5 visa capital:
- Assets acquired illegally.
- Investments in exchange for debt instruments like bonds or notes.
- Investments with guaranteed returns.
- Investments with contractual repayment guarantees to the investor, except for buy-back options, are solely at the discretion of the enterprise.

IMPORTANT! Investors must prove legal ownership of the invested capital. A promissory note (promise to pay) may be considered in specific situations.

Minimum Investment Amounts for the EB5 Visa Program

The EB-5 visa program requires a substantial investment in a U.S. commercial enterprise. The minimum investment amount varies depending on two key factors: filing date and investment location. This table provides a quick overview of the minimum investment requirements based on these factors.

Filing Date

Before March 15, 2022

On or After March 15, 2022

Minimum Investment

$1,000,000

$1,050,000

Targeted Employment Area (T.E.A.) Minimum Investment

$500,000

$800,000 (includes infrastructure projects)

High-Unemployment Area (HUA)

$1,000,000

IMPORTANT! The minimum EB-5 investment amount will be adjusted for inflation every five years. The first adjustment will apply to petitions filed on or after January 1, 2027.

Understanding Targeted Employment Areas (T.E.A.s) in the EB-5 Visa Context

These are designated areas experiencing high unemployment (at least 150% of the national average) or are rural.
Rural areas: Any area outside a metropolitan statistical area (M.S.A.) or a town/city with a population over 20,000 (based on the latest U.S. census).

Understanding High-Unemployment Areas (HUAs) in the EB5 Investor Visa Context

It is defined by the census tract where the new commercial enterprise operates.
May include adjacent census tracts if the weighted average unemployment rate in the designated area is 150% of the national average.

Understanding Infrastructure Projects in the Investor Visa Context

It is an option for regional center investors.
Defined as a capital investment project administered by a government entity (federal, state, or local) that enters a contract with a regional center or new commercial enterprise to obtain EB-5 investment funds for public works projects.

3. Job Creation Requirements in the EB-5 Visa Program for Foreign Investors

The EB-5 visa program goes beyond simply investing capital in the U.S. economy. It also plays a vital role in job creation for American workers.

IMPORTANT! All EB-5 foreign investors must fulfill a minimum job creation requirement regardless of whether they invest through a regional center or in a new commercial enterprise. This requirement mandates creating or preserving at least 10 full-time jobs for eligible U.S. workers. These jobs must be permanent, meaning they offer full-time wages and benefits and are expected to last at least two years.

Direct vs. Indirect Job Creation in the Investment Immigration Context

The process of fulfilling the job creation requirement for EB5 visa investors differs depending on whether the investment is made through a regional center or directly:

Non-regional center investments: For investments in new commercial enterprises outside a regional center, the enterprise (or its wholly owned subsidiaries) must directly employ the 10 qualifying U.S. workers. This means the enterprise is responsible for recruiting, hiring, and managing these employees.
Regional center investments: Investments made through USCIS-designated regional centers offer more flexibility regarding job creation. Up to 90% of the required 10 jobs can be indirectly created here. These indirect jobs are not directly employed by the new commercial enterprise but are created due to its investment and operation. For instance, a new restaurant might indirectly create jobs for food suppliers, delivery services, and local construction workers involved in renovations.

IMPORTANT! Regardless of the investment location (regional center vs. non-regional center), the EB-5 investor ultimately holds responsibility for demonstrating that the required number of qualifying jobs has been created or preserved.

Defining "Full-Time Employment" and Qualifying Employees in the Investor Green Card Program Context

The EB-5 program has specific definitions for “full-time employment” and “qualifying employee” to ensure the created jobs are meaningful and contribute to the U.S. workforce.

Full-time employment: A full-time job is defined as a position requiring a minimum of 35 hours of work per week. This can be a single position filled by one qualifying employee or a job-sharing arrangement where multiple qualifying employees share the responsibilities as long as the combined weekly hours meet the 35-hour minimum.
Qualifying employees: Only specific individuals can be counted towards the job creation requirement. These include:
- U.S. citizens;
- Lawful permanent residents (“green card holders“);
- Other authorized immigrants with work permits, such as temporary residents, refugees, or individuals with protected status (asylees).

IMPORTANT! The EB-5 investor, their spouse and children, and non-citizens without work authorization cannot be counted towards the required number of jobs.

Defining Job Maintenance for Troubled Businesses in the U.S. EB-5 Investment Visa Context

The EB-5 program offers an alternative job creation option for exceptional situations. In cases where the investment is made in a struggling business (defined as experiencing a net loss of at least 20% in the past 24 months), the investor can focus on maintaining the existing employment level instead of creating new jobs.

This is known as “job preservation.” To qualify for this option, the investor must demonstrate that the number of employees in the business remains the same or increases compared to pre-investment levels for at least two years after the investment.

IMPORTANT! Job maintenance (preservation) is only an option for troubled businesses and requires USCIS approval. Consulting with immigration experts is crucial to determine if your investment qualifies for this alternative job creation approach.

How to Apply for the EB-5 Visa for Foreign Investors: A Step-by-step Guide

The EB-5 visa application process for foreign investors seeking green cards in the United States is intricate and involves various forms and petitions submitted to USCIS. This section of our EB5 guide will walk you through the critical steps, highlighting the necessary documents and forms you’ll encounter at each stage. While the process can appear complex, this breakdown aims to offer a more precise roadmap.

Step 1: Initial Petition - Form I-526

Your E.B. 5 visa journey begins with filing either Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor.

The specific form depends on whether you invest in a new commercial enterprise or via a USCIS regional center. This initial petition establishes your eligibility for the EB-5 program by demonstrating you meet the investment and job creation requirements.

Step 2: Concurrent Application for Adjustment of Status (Optional)

Suppose an immigrant visa is immediately available based on your priority date (determined by USCIS based on your nationality). In that case, you can submit Form I-485, Application to Register Permanent Residence, concurrently with Form I-526 or I-526E.

Alternatively, you can file Form I-485 after your initial petition is approved. For the most up-to-date information on visa availability, refer to the Visa Bulletin provided by the U.S. Department of State.

Step 3: Visa Application or Adjustment of Status (Based on the I-526 Petition Approval)

Once USCIS approves your Form I-526 or I-526E, you have two options to proceed:

Apply for an EB-5 visa abroad (if eligible): If you’re outside the United States and eligible for an immediate visa, you can file Form DS-260, Application for Immigrant Visa and Alien Registration, with the U.S. Department of State to obtain an EB-5 visa for entry into the U.S.
Adjust status to Conditional Permanent Resident (if applicable): If you haven’t filed Form I-485 earlier or are already in the U.S. legally, you can now submit this form to adjust your status to a conditional permanent resident.

Step 4: Conditional Permanent Residency Granted (2-year period)

Upon approval of Form I-485 or your admission with an EB-5 visa, you and any eligible family members included in your application will receive conditional permanent resident status for two years.

Step 5: Petition to Remove Conditions (Form I-829)

Within the 90-day window before your conditional permanent resident status expires, you must file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. This form and supporting documentation demonstrate that you have satisfied the investment and job creation requirements outlined in the EB-5 program and can now remove the conditions on your Green Card.

Step 6: Removal of Conditions and Permanent Residency Granted (Based on the I-829 Petition Approval)

If USCIS approves your Form I-829, the conditions on your and your dependents’ permanent resident status will be removed, granting you full and unrestricted permanent residency in the United States.

The EB-5 Visa Processing Times and Timeline: What to Expect

If you wonder how long it takes to get the EB-5 visa as a foreign investor and then obtain your Green Card, the only answer is that processing times for EB5 investors’ visas vary and depend on various factors.

However, we will try to give you as much information as possible so you get answers to this question.

The EB-5 visa processing timeline can vary significantly, but several factors influence the processing speed.

Current EB5 Visa Processing Times

Navigating the EB-5 visa application process involves understanding the expected timelines. This section sheds light on the current processing times for various stages of the EB-5 journey.

Form I-526 (initial petition): This initial petition can take between 47 and 71 months to be processed by USCIS.
Consular processing (for applicants abroad): If a visa is available and you are applying from outside the U.S., the green card approval through consular processing can take 4 to 6 months.
Adjustment of status (for applicants in the U.S.): If you are already in the U.S. legally and applying through adjustment of status, the processing time takes up to 21 months, depending on the USCIS service center handling your case.

Factors Influencing Processing Times

Beyond the basic processing times, various factors can impact how long it takes to obtain your EB-5 visa. This section explores these key influences, offering insights into potential variations in your EB5 timeline.

USCIS efficiency: USCIS has improved efficiency by streamlining procedures, leveraging technology, and allocating more resources. This can lead to faster processing times in the future.
EB-5 Reform and Integrity Act of 2022 prioritizes processing petitions from investors in targeted employment areas (T.E.A.s) and those creating jobs quickly, potentially reducing wait times for these categories.
Backlog reduction efforts: USCIS is actively addressing the backlog of pending petitions through increased staffing, training, and improved workflows.
Political climate: Under the current administration, which is generally more immigration-friendly, processing times are expected to improve.
Economic considerations: The EB-5 program’s role in economic recovery suggests continued government support, potentially leading to faster processing times.
USCIS staffing and fee collection: Congress has set expectations for USCIS to achieve processing times of 6 months or less and collect enough fees to meet this goal. This may further improve efficiency.

IMPORTANT! Use the USCIS online tool to check the processing times for specific forms, including Form I-526. Moreover, refer to the Visa Bulletin to see when green cards might be available.

What Is the EB5 Visa Cost?

The EB-5 visa program involves various forms and associated filing fees. Here’s a breakdown of the expenses you might encounter:

Initial Petition (Form I-526 or I-526E) Fee

Standard filing fee: $11,160 (applicable to Form I-526 and I-526E).
Additional Integrity Fund Fee: $1,000 (this fee does not apply to amendment requests)

IMPORTANT! If you filed Form I-526E on or after March 15, 2023, you don’t need to pay a separate biometric services fee.

Adjustment of Status (Form I-485) Fee

The filing fee for the I-485 form from April 1, 2024, is $1440. It covers the processing of your application to adjust your immigration status from nonimmigrant to lawful permanent resident within the United States. This fee only applies if you are legally present in the U.S. and seeking to adjust your status through this process.

IMPORTANT! If you are applying for an EB-5 visa outside the U.S., you will not incur this fee as your application will be processed through consular processing at a U.S. embassy or consulate abroad.

Visa Application and Supporting Documents (If Applicable)

This section outlines additional fees you may encounter if you apply for an EB-5 visa outside the U.S. through consular processing. These fees are associated with the documents required to support your visa application:

DS-260 online processing fee: $325. This fee covers the processing of Form DS-260, which is required for all immigrant visa applicants, including EB-5 investors.
Affidavit of Support processing fee: $120. This fee covers the processing of Form I-864, which is a legal document signed by a U.S. citizen or lawful permanent resident who agrees to support you financially, the visa applicant, for a specific period once you enter the U.S. This demonstrates your ability to maintain yourself financially and not become a public charge.

The total fees are $445. This represents the combined cost of the DS-260 processing fee and the Affidavit of Support processing fee. It’s important to remember that these fees only apply if you are going through consular processing abroad. If you are already in the U.S. and applying for adjustment of status, these fees are not applicable.

Considering only the core EB-5 application and removal of conditions, the EB-5 visa application fees can range from approximately $9,950 to $10,950, depending on your chosen investment path. This is a simplified estimate, and additional costs might be incurred, such as legal fees, translation services, medical examinations, and travel expenses.

IMPORTANT! Note that these fees are subject to modifications. Always check the official USCIS website for the latest information on filing fees. Consulting with an immigration lawyer or service provider is highly recommended to understand the complete financial picture specific to your situation.

Can USCIS Deny Your EB5 Immigrant Investor Residence Petition?

While processing delays are a common concern for EB-5 applicants, the possibility of petition denial also warrants careful consideration. USCIS can deny an EB-5 petition if certain requirements are unmet, potentially impacting your path to permanent residency in the United States.

Common Reasons for EB-5 Petition Denial

Incomplete or incorrect information: Failing to provide all the required information on your petition or supporting documents, or including inaccurate or inconsistent information, can lead to denial. This highlights the importance of meticulous preparation and ensuring your application accurately reflects your qualifications.
Non-compliance with program requirements: Demonstrating compliance with the EB-5 program is crucial. This entails meeting specific investment thresholds, investing in a qualifying project, and proving the lawful source and continued at-risk nature of your investment funds throughout the required period. Your petition may be denied if you fail to meet any of these requirements.
Inadequate evidence: Inability to provide sufficient evidence to support your claims, such as proof of investment amount, project eligibility, or lawful source of funds, can also result in denial.

Additional Factors Contributing to EB-5 Petition Delays

While not directly related to denial, it’s essential to understand that several factors can cause delays in your EB-5 petition processing:

Visa availability: USCIS only processes petitions if visas are currently available for your country of origin. This can lead to backlogs and longer wait times.
Complex source-of-funds documentation: Verifying the legitimacy and origin of investment funds can be time-consuming, especially if the documentation is intricate or involves multiple sources.
Petition errors: Errors or inconsistencies in your petition, even unintentional, may require you to respond to requests for evidence from USCIS, further extending the processing timeline.

What to Do If Your EB-5 Petition Was Denied

Receiving an EB-5 petition denial can be disheartening, but options remain. You can file a reopening motion if you believe USCIS made an error or have new evidence. Alternatively, you can appeal the decision with the Administrative Appeals Office. However, both options are complex and often require legal expertise.

Depending on the reasons for denial, you might be eligible to reapply with a stronger EB-5 visa application addressing the previous petition’s shortcomings. Consulting an experienced immigration lawyer or service provider is highly recommended to understand the denial, evaluate your options, and build a strong case for moving forward through reopening, appeal, or reapplication.

EB-5 Visa Frequently Asked Questions

If you still need some clarifications on the EB-5 investor green card program, here is what other clients learned by asking their questions:

Is the Eb-5 visa a U.S. citizenship by investment program?

The EB-5 program isn’t a direct path to U.S. citizenship through investment. Instead, it grants legal residency, allowing you and your family to apply for a green card after meeting specific requirements. These requirements include holding the investment for two years, residing in the U.S., and creating ten jobs. You can initiate the green card application 90 days before the two-year residency period ends.

What types of EB-5 investment projects can I participate in?

The EB-5 program offers various investment options through Regional Centers, the government-approved entities that manage and sponsor EB-5 projects. Here are some examples:

Real estate developments: New construction or renovation of commercial and residential properties.
Infrastructure projects: Developing transportation networks like airports, seaports, highways, and bridges.
Energy projects: Renewable energy and traditional energy sources.
Manufacturing projects: The establishment of new factories or the expansion of existing manufacturing facilities.
Agricultural projects: The development of farms or expanding existing agricultural operations.

This is not an exhaustive list, and other project types might be available depending on the Regional Center and its focus areas. Consulting with immigration experts specializing in EB-5 investments is crucial to understanding each project type’s specific details and risks.

When should I make the EB-5 investment: before or after filing Form I-526?

While regulations allow filing the petition (Form I-526) while still investing, completing the investment and obtaining confirmation from the regional center before filing is generally recommended. Here’s why:

Completing the investment with proper documentation demonstrates your commitment and strengthens your petition.
A complete application with evidence of investment might expedite processing times by USCIS.
Incomplete applications due to pending investments can lead to delays and requests for evidence.

Therefore, completing the EB-5 investment before filing Form I-526 is recommended for a more robust application and potentially smoother processing.

Is an EB-5 lawyer necessary for my success in the EB-5 program?

While navigating the EB-5 process without an attorney is legally permissible, seeking professional guidance is highly advisable due to the program’s complexity and potential risks. Here’s why:

Extensive due diligence: It is crucial to Carefully evaluate investment opportunities and ensure they comply with program regulations. An experienced EB-5 immigration service provider can assist you in conducting thorough due diligence, minimizing the risk of investing in non-compliant projects.
Complex application process: The EB-5 visa program involves detailed paperwork, specific filing requirements, and potential interactions with USCIS. An attorney can guide you through the process, ensuring your application is accurate, complete, and meets all legal guidelines.
Maximizing success rate: A seasoned EB-5 immigration lawyer can significantly increase your chances of a successful application by anticipating potential issues, ensuring adherence to regulations, and effectively presenting your case to USCIS.

While the decision ultimately lies with you, consulting with a qualified EB-5 immigration specialist is highly recommended to navigate the complexities of the program, lessen risks, and boost your chances of success.

Get Started with Your EB-5 Visa Application Today!

The EB-5 program offers a unique pathway to permanent residency in the United States, but navigating its complexities requires careful planning and expert guidance. At ImmigrationDirect, we have extensive experience assisting individuals and families seeking to achieve their U.S. immigration goals through the EB-5 program.

Contact us today for a personalized consultation and take the first step towards securing your future in the United States. We’re here to guide you every step of the way, making your EB-5 green card journey a success!