FAQ

What is EB5 Visa?

Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. 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 U.S. economy and create the requisite number of full-time jobs for qualified persons within the U.S.

What makes the EB-5 Visa program different from the L-1 (manager transfer) or E-2 (Treaty /Investor)?

Participation in the Immigrant Investor programs gives you permanent resident status (green card). Permanent residency requires no renewal or re-application. The E-1 Treaty Investor or E-2 Treaty Trader programs allow for nonimmigrant status only. When the qualifying business/investment ends, so does the non-immigrant status that has been granted to the alien. The Alien will have to leave the United States unless another visa category is granted. Also children over the age of 21 cannot be covered under your visa, and will have to obtain their own visa or leave the United States. Unlike E-1 and E-2, the L-1 alien can apply for classification as a Multinational Executive or Manager. If such as case is approved, which is becoming more difficult due to the high number of fraudulent cases and a subsequent tightening of the review process, the alien may apply for Permanent Resident status. Likewise, the L-1 is a non-immigrant classification. Other U.S. non-immigrant visas, such as E-1, E-2 and H category visas may never result in permanent residency, have time limits, and require additional filings with USCIS or Department of State. Furthermore, U.S. immigration laws may change and prevent future approval when a renewal of visa is required.

What is the Regional Center (Pilot) Program?

In 1990, the United States Congress established the fifth employment-based (EB-5) preference category for immigrants seeking to enter the United States by enacting the Immigration and Nationality Act. The law is intended to benefit the U.S. economy by generating new economic activity and increasing employment in targeted areas.

Section 203(b)(5) of the legislation makes foreign nationals eligible for permanent residency by engaging in a commercial enterprise that will benefit the American economy and directly create at least 10 full-time jobs for U.S. citizens, lawful permanent residents, and other immigrants lawfully authorized to be employed in the United States. The minimum qualifying investment amount is $500,000 for commercial enterprises located within a rural area (or a targeted employment area), and is otherwise $1,000,000.

In the simplest terms, this means that as a foreign investor you have the choice to invest either $500,000USD or $1,000,000USD into the development of a business or project here in the United States and that as a result of your investment this business will create at least 10 jobs in the local economy. You will also now become a "limited partner" in this new business and will share in the profits of this company based on an agreed upon percentage of ownership. These investment funds must be invested into the operations of the business and the funds must be "at risk" with no form of guarantee. This is not a passive investment (such as purchasing shares of stock) however you are also not required to have day to day operations of the business either.

Congress allocates 10,000 immigrant visas annually for this employment-based preference, the EB-5 category. At least 3,000 of these visas are set aside each year for those who utilize a designated Regional Center or TEA status.

The EB-5 program does not discriminate against education, experience or does not require a sponsor. There is no requirement to speak English and the EB-5 category also allows the family (including any children under 21 years old) to be part of the process. As an EB-5 Investor you are also free to reside anywhere in the United States that you choose.

Are EB-5 visas available to anyone outside of the US?

Yes, investment in the EB-5 Investor Visa program is open and available to anyone from any country. Although it can be done, potential investors from countries that do not have reliable tax laws and/or require reliable financial documentation will find it much more difficult to prove the source of funds which is a key element to a succesful approval of an EB-5 application.

Are My Family Members Eligible to Qualify for an EB-5 Visa?

The parameters under which family members of the investor can qualify for the Conditional Permanent Residence or as a Lawful Permanent Resident are as follows:

• Spouses of the investor are permitted to accompany or follow the investor who has been granted their Conditional Permanent Residence. This is provided that the investor and their spouse who is deemed a derivative beneficiary were married at the time the investor’s original admission to the United States as a Conditional Permanent Resident or at the end of the two-year conditional period when citizenship status will adjust to Lawful Permanent Resident. It should be noted that Common Law marriages will not be recognized for the purpose of permitting a spouse to qualify as a derivative beneficiary. A relationship considered to be Common Law, will not permit the ‘spouse’ of the investor to acquire Lawful Permanent Residence on account of the status of the relationship.
• Children and/or Step-Children of the investor are permitted to accompany or follow the investor who has been their Conditional Permanent Residence. This is provided that the investor can establish legitimate parent or step-parent lineage at the time of the investor’s original admission to the United States as a Conditional Permanent Resident or at the end of the two-year conditional period when citizenship status will adjust to Lawful Permanent Resident. Failure to comply with these requirements upon the initial application process may result in the separation of a child from the investor or the investor’s spouse for an extended length of time and in some cases years at a time, while alternate immigration opportunities are explored in effort to reunite the family
• The US Government considers a ‘child’ as someone who is under the age of 21 and who not married. If a child of the investor reaches the age of 21 or marries prior to admission to the US under the Conditional Permanent Residence or prior to the conclusion of the two-year conditional period when citizenship status will adjust to Lawful Permanent Residence, the former child, now considered a son or daughter, may not be eligible to accompany or follow the investor to the US. In some instances, the Child Status Protection Act may assist a son or daughter to qualify as a ‘child’ by reducing their age to less than 21 years. If the requirements of the Child Status Protection Act are not met, it may result in the separation of a child from the investor or the investor’s spouse for an extended length of time and in some cases years at a time, while alternate immigration opportunities are explored in effort to reunite the family
• Circumstances where a child who turns 21 years of age or who married while the investor is within the Conditional Permanent Resident time period and in cases where the spouse and the investor become divorced, the child or the spouse may be eligible to remove conditions by being included in the investor’s I-829 petition or by filing a separate I-829 petition. Meeting the US Government qualifying conditions may not be within the control of the child or divorced spouse. As a result, the child or divorced spouse may become involved in removal proceedings through the US courts or be required to depart the United States. In the case of death
• In the unfortunate case of death to the investor holding Conditional Permanent Resident status the spouse and qualifying holding the same status are entitled to seek removal conditions by submission of the same evidence which demonstrate compliance under the same required criteria in which the investor would seek to remove conditions. Failing to establish this criteria will result in the denial of application to remove conditions, place family members in removal proceedings through the US courts and mandate immediate departure from the U.S.

The USCIS does not clearly outline if a child who becomes a son or daughter before death of the investor is entitle to request removal conditions. If it is found that the USCIS does not extend this benefit, the son or daughter would be denied application to remove conditions and would be placed in removal proceedings through the US courts and be required to depart the United States.

How long does it take until we obtain conditional green cards to enter the U.S.?

It takes about two months to make the investment, gather the necessary documents, and file the petition. Most petitions are approved in about 6 months. One can then apply for adjustment of status in the U.S. or an immigrant visa overseas. Adjustment of status for EB-5 cases can be processed in about 12 months, but can sometimes take longer. The immigrant visa at the American consulate requires about 8-12 months. After being granted, it usually only takes a few weeks or months for the conditional Green Card to arrive.

Can money gifted by a parent or other relative be used for an EB-5 investment?

Yes, provided that any applicable gift taxes are paid.It must be demonstrated that the gift is an actual arms length transaction and is a not a mere ruse or that the gifted funds will be given back after permanent resident status is granted.