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EB-5 Immigrant Investor Visa: Employment Based Firth Preference Visa

The EB-5 immigrant investor visa was created in 1990 to stimulate the U.S. economy by providing investors the opportunity to obtain a visa through the investing in a new commercial enterprise. The EB-5 investor visa program aims to create new jobs in the United States through the investment of foreign capital. As an investor, you may also invest in regional center designated by the USCIS, however, the USCIS does not endorse the activities of such regional centers, and investing in one does not guarantee the return of your investment. The EB-5 visa program has greatly expanded in the past few years, where the number of applicants has reached nearly 4,000 annually, nearly quadrupling. In 2011, the USCIS reformed the EB-5 investor visa program, making the requirements less strict resulting in a great increase in EB-5 visa petitions filed.

EB-5 Commercial Enterprises Include:

• Corporation
• Privately or publicly owned business trust
• Joint venture
• Holding company
• Partnership
• Sole proprietorship

Please Note that commercial enterprises also include holding companies and its subsidiaries. To qualify, the subsidiaries must engage in for-profit activity.

EB-5 Investor Visa Requirements: 

EB-5 Job Creation Requirements:

In order to qualify for the EB-5 investor visa, you must show that your investment will create and preserve at least 10 full-time jobs for U.S. citizens within two years of your entry into the United States, or within a reasonable time after the two year period, depending on the particular investment.

• You may show that your investment will create and preserve direct jobs, which are jobs that are located within the enterprise in which you invested; or
• You may also show that your investment will create indirect jobs, which are those that come as a result of investing in the USCIS designated regional center. Foreign investors that are investing in a USCIS designated regional center are allowed to show that their investment will create 10 indirect jobs

Definition of new commercial enterprise for EB-5 purposes:

A new commercial enterprise is defined as an enterprise established before November 29, 1990. Those established on or before November 29, 1990 may qualify if they were:

• 1.Purchased and reorganized or restructured in a way where it functions as a new commercial enterprise, or
• 2.The corporation has expanded so that its net worth or total employees increases by 40 percent

EB-5 Capital Investment Requirements:

For EB-5 purposes, capital refers to cash, inventory, equipment, cash equivalents and assets owned by the foreign investor. The investor must be primarily liable. All assets held by the foreign investor will be valued in U.S. dollars.

• The minimum qualifying investment for EB-5 visa is generally $1 million USD
• The minimum investment in high unemployment or rural areas (targeted employment areas) is $500,000 USD. To qualify as a high unemployment area, at the time of the investment in the corporation, the unemployment rate of the region must be 150% the national average. In order for a region to qualify as a rural area, it must meet the requirements set forth by the Office of Management and Budget, or it must be outside the boundary of a city or town with 20,000 or more residents.

EB-5 Visa Conditional Permanent Residence:

If your EB-5 visa petition is approved, you will be granted conditional permanent residence for 2 years from the approval date. Within 90 days before your conditional permanent residence expires, you must be able to prove, with ample documentation, that your investment has created 10 full-time jobs (in cases where the investor has not invested in a regional center) or 10 full-time direct or indirect jobs (in cases where the investor has invested in a Regional Center). Depending on the nature of the enterprise, you may also show that 10 full-time direct or indirect jobs will be created and maintained within a reasonable time thereafter.

EB-5 Investor Visa Application Process:

• 1. File Form I-526 Petition by Alien Entrepreneur
• 2. If your Form I-526 is approved, you may file form I-485 Application to Register Permanent Residence or Adjust Status, in order to adjust your status to conditional permanent residence; or you may file DS-230 Application for Immigrant Visa and Alien Registration, in which you must file DS-230 with the U.S. Department of State in order to obtain an EB-5 visa for entry to the U.S.
• 3. 90 days before your conditional permanent resident status expires, you, or your attorney of record must file Form I-829 Petition by Entrepreneur to Remove Conditions. At this time, you will need to provide:

EB-5 Investment Visa I-526 Supporting Documentation:

• EB-5 Investor Visa Supporting Documentation on Investment: The foreign investor must provide:
•  Evidence that they have invested in a new commercial enterprise in accordance with the USCIS’s rules mentioned above
• Evidence that you have invested or are in the process of investing the total funds, $1 million USD, or $500, 000 USD in the case of low employment or rural areas
• Evidence that the funds were legally obtained by providing the following:
• Foreign business records, including business registration records
• Business/corporate tax returns
• Personal tax returns
• Documentation of any other sources of income in any country you have lived in
• records of any money judgments against the foreign investor, which is not limited to any civil or criminal actions or private civil actions in the previous 15 years 

• New Commercial Enterprise Supporting Documentation for I-526:

• The foreign investor must provide documentation to verify that the for profit commercial enterprise is a new enterprise and or is considered a new enterprise according to the rules stated in the article above
• If you have invested in a targeted employment area (rural area or area of high unemployment) you must provide evidence to prove that the corporation is located within a targeted area 

• Management of Enterprise Supporting Documentation for I-526:

• The foreign investor must provide evidence that they are or will be involved in directly managing the business
• The foreign investor should provide necessary documentation on their duties and responsibilities

• EB-5 Job Creation Supporting Documentation for I-526:

• The foreign investor must provide all necessary documentation showing that the new commercial enterprise will create and preserve 10 full-time jobs. Please note that these jobs cannot include jobs for the investors immediate family members or for nonimmigrant workers.
• A thorough and complete business plan must be submitted along with the I-526. This must include how the funds will be used, and show that the investment will result in at least 10 full-time jobs. The plan should include estimates on when and why the 10 employees will be hired, and what positions they will likely hold in the business

EB-5 Form I-829 Application Process:

• EB-5 I-829 Investment Supporting Documentation:

• Documentation verifying that the enterprise is a new commercial enterprise. Documentation may include federal tax returns
• Documentation verifying that you have invested the required funds or are in the process of investing the required funds
• Evidence that you have managed and continued investing in the business throughout the two year period
• Provide bank statements
• Contracts
• Business licenses
• Business transactions
• Financial statements
• Reviewed financial statements
• Federal or state income tax returns
• Quarterly tax statements may be submitted in place of federal or state income tax returns

It is important in this critical process to provide as much documentation and evidence as possible, in order to substantiate your investment and continued management of the business

• Job Creation Documentation: The foreign investor must provide documentation on how his or her investment has created and maintained 10 full-time jobs in the United States in the form of:
• employee Forms I-9
• tax documentation related to the creation of these jobs
• business payroll records
• In addition, other relevant information may be included in place of the above stated documentation

Upon approval of your Form I-829 petition, all conditions will be removed from your permanent residence and you will be allowed to stay in the United States permanently.

EB-5 Investor Visa FAQ (Frequently Asked Questions):

Can I bring my husband or wife and children with me to the United States while on an EB-5 investor visa?

Yes, you may bring your spouse and dependent children under 21 years of age to the United States while on an EB-5 investor visa. They will receive conditional permanent residence after the Form I-526 is approved. With the approval of your I-829, your spouse and children will receive permanent residence status, and may attend school and be authorized to work.