There are four steps in the EB-5 petitioning process that an immigrant investor should be prepared to complete to become a U.S. permanent resident, along with their spouse and unmarried children under the age of 21.
Step 1: Select a qualifying EB-5 project
The EB-5 applicant must first find a suitable project which they believe will meet the program requirements.
When selecting an EB-5 eligible investment, consider these two desired outcomes: Green Cards, and return of capital. The first relates to the likelihood of immigration benefits, the second relates to the likelihood of having your capital returned in a timely manner.
How much do I have to invest in an EB-5 project?
EB-5 visa applicants are required to make an investment of $1 million, or $500,000 if the job creation occurs in a Targeted Employment Area (TEA), into a U.S. business venture. TEA designation applies to projects in either a rural area or in a high unemployment area.
Job creation is a critical requirement to EB-5 success. Investments must result in the creation of 10 full-time U.S. jobs to qualify for EB-5.
EB-5 investments in the now-expired Regional Center Program allow for indirect and induced jobs to count for job creation. The permanent direct EB-5 program only counts direct jobs directly by the business receiving the capital investment.
U.S. Citizenship and Immigration Service (USCIS) will defer to previous petitioner approvals in the same project, so if a project has received investor approvals, or if the New Commercial Enterprise (NCE) requested an exemplar approval, then investors can have much more confidence that their petition will be acceptable to the immigration service; but it is no guarantee of approval if there have been “material changes” to the project since those approvals.
Know that an investor approval or exemplar approval does not mean the project will definitely create the estimated jobs.
Financial return on your EB-5 investment
EB-5 investors want to be confident that their capital will be returned in full — if not actually deliver some attractive rate of return.
Key drivers that help determine the strength of an investment include the capital stack, and developer equity which shows skin-in-the-game (developer equity is almost universally in a lower position in the capital stack then EB-5 money.)
Ideally, EB-5 money is in “first position” in the capital stack and is secured fully by equity in the project.
Another aspect to look for is exit strategy: when your loaned investor capital is returned to you. You want your exit strategy to match up with your I-829 filing date, the time at which your EB-5 investment capital no longer must be “at risk.” This can be tricky because your estimated I-829 filing date depends on how long it takes to adjudicate your I-526, so add some cushion to your timetable.
Historically, an EB-5 project that was likely to produce immigration benefits was not often one that would offer a high rate of return. Higher rates of return generally indicate more risk. But as the market evolves, legitimate EB-5 investments are offering better returns.
What industry should I make my EB-5 investment in?
In prior years, real estate projects were favored EB-5 investments because jobs were modeled by an economist to be created so long as the full budget in the business plan was spent. As real estate projects rarely come-in significantly under budget, this simplified job counts considerably and lowered the job-creation risk.
Before the new EB-5 regulations that were established November 21, 2019, big real estate projects in marquee locations were deemed to be most attractive as they were seen as “safer” for job creation.
But with the new EB-5 program rules for Targeted Employment Areas (TEAs), many of these big-city projects no longer qualify at the lower investment level. Thus, real estate may not be attractive for an EB-5 project choice as it once was.
Now job sectors are more diverse — and many new commercial enterprises are no longer location dependent, thus making them easier to qualify for TEA designation — at half the investment amount.
Unless an investor is comfortable investing $1 million in a non-TEA project, he or she should be open to a variety of project types and locations.
How do I make the EB-5 investment?
To make the investment, investors will sign a subscription agreement: a request to join a partnership or a limited-liability company. The Manager or General Partner will then accept the investor, who will then wire their investment funds to an escrow account controlled by an appointed escrow agent.
Step 2: Make investment and file EB-5 petition
After selecting an investment, the applicant will have his or her immigration attorney file your EB-5 petition (known as a Form I-526) with USCIS. The I-526 petition proves the applicant has invested, or is in the process of investing, the required capital, and that they meet the EB-5 program requirements.
We suggest that you interview and retain an experienced EB-5 immigration lawyer that you feel comfortable with to file your I-526 petition.
Requirements your I-526 filing must meet
- EB-5 investors must be able to show that their invested capital was acquired lawfully, so a lawful source and path of funds is required.
- The business plan must be credible in the eyes of USCIS and must meet all “Matter of Ho” requirements, which your lawyer will confirm.
- Invested funds must go into a New Commercial Enterprise and be spent on expenditures related to job creation, and the project must create 10 new full-time American jobs.
- The investor’s capital must be placed “at-risk’” till the end of conditional permanent residency with a chance for gain and a risk of loss — without any guarantees of return of capital.
- For an investment to qualify at the lower investment amount of $500,000, it must meet Targeted Employment Area requirements at the time of the investment.
Do I get my investment back if my I-526 petition is denied by USCIS?
An I-526 denial refund guarantee may be offered to investors by the New Commercial Enterprise (NCE) and the terms of the refund would be included in the offering documents. But not all guarantees are created equal. It is important to identify who is offering the guarantee and whether the guarantor has the means to deliver on the repayment promise, especially if the project gets denied and all investors would then expect a full refund.
Some NCEs will hold back 10-20% of all investor funds in an escrow account that would be used to repay a denied investor, but this guarantee can, by definition, only satisfy a portion of the NCE’s investors.
I-526 processing times
Processing times have been negatively impacted by COVID-19 but an I-526 petition is often adjudicated in one and a half to two years; and an expedition petition can be processed in about six months.
With a more immigration-friendly Biden Administration and Alejandro Mayorkas as Secretary of Homeland Security, experts are confident this will bode well for future processing efficiency.
Here is a link to the I-526 petition on the USCIS website
Step 3: Conditional permanent residency for two years
Once an investor’s I-526 petition is approved, conditional permanent residency can be attained in one of two ways:
- If the investor is living in the U.S., they will file Form I-485 for adjustment of status.
- Investors living abroad file Form DS-260 with a U.S. Consulate or U.S. Embassy.
With the approval of either application, the investor’s next step in the EB-5 visa process is to become a two-year conditional resident of the United States.
Filing an I-485 for Adjustment of Status
When an EB-5 applicant gets their I-526 approved and is already living in the U.S., they can then adjust their status from non-immigrant to permanent resident.
This petition can be filed immediately after I-526 approval. It is six pages long and has a filing fee of $1,140 (not including the $85 fee for biometric services). It is highly advisable to have an immigration attorney do the filing for you.
What documents are required for the I-485 petition?
- Birth certificate
- Marriage certificate and, when applicable, divorce certificate
- Criminal history
- Two photographs of the petitioner
- Passport copy & copy of non-immigrant visa showing current U.S. status
After filing, biometric screening, including fingerprinting, is required for petitioners between 14 and 79.
As of June 2020, USCIS has posted an average historical I-485 processing time for FY2020 (to date) of 13.7 months.
Most petitions result in approval. Denial, though not very common, usually happens in cases of criminal or immigration law violations. A petitioner may file an I-765 Application for Employment Authorization and/or I-131 Application for Travel Document while they wait for their I-485 to be processed.
DS-260 application process
If an EB-5 investor has their I-526 petition approved and they are not living in the U.S., then they must file a DS-260 application for conditional permanent residency. It is processed at a U.S. Consulate or Embassy in the petitioner’s country. It is highly advisable to file this form with an immigration attorney. The application consists of two parts, application and interview.
DS-260 application information
The application documents biographical information, including previous residences, job history, and military service history (if applicable).
On May 31, 2019, Department of State (DOS) updated its requirement for DS-260 form applicants to fully disclose the social media activity of the last five years under a Social Media Disclosure.
This is conducted at the U.S. consulate or embassy of the applicant’s country. A consular worker assists in completing this part of the application process. The applicant may be asked to bring documents such as birth certificates, passport, and marriage certificate (if applicable).
Approval of I-485 or DS-260: Green Card and next steps
Approval of an I-485 or DS-260 petition results in a Green Card — the applicant is now a conditional permanent resident in America. This status is good for two years. The investor and his or her family members can live and work in the U.S.
During the 2-year conditional residency period, the EB-5 visa investor will be required to fulfill physical presence requirements, and cannot remain outside of the United States for more than one year. If the immigrant investor does reside outside of the U.S. for more than one year, they would be required to obtain a re-entry permit.
Three months before the expiration of the conditional permanent resident status, the investor will want to remove the conditions of permanent residency.
Step 4: Removal of conditions
The final step in the EB-5 visa process is for the applicant to become an unconditional permanent resident. This is done by the removal of conditions to permanent residency after an I-829 application is filed, adjudicated, and approved.
This application provides documented evidence that the petitioner has met all of the requirements of the EB-5 program, as per the United States Citizenship and Immigration Services (USCIS).
What documents are required to file an I-829 petition?
- Conditional permanent resident card
- Evidence that a commercial enterprise was created, as per federal tax returns
- Documentation that the new commercial enterprise received the petitioner’s capital investment
- Documentation showing the commercial enterprise was maintained for the entire conditional residency period of two years
- Proof that at least 10 full-time jobs were created according to the business plan, as per payroll and tax records
- Biometric documentation including fingerprints, photograph, and signature
- Legal documents pertaining to the applicant’s criminal history (if applicable)
Filing an I-829 petition
The I-829 petition is submitted to USCIS 90 days prior to the anniversary of the date that the applicant first received his or her conditional residency. If the I-829 is not filed on time, the investor may not be granted permanent residency.
The I-829 petition is typically filed by an EB-5 investor’s immigration attorney. There is a $3,750 filing fee and $85 biometrics fee associated with the filing.
Note that USCIS may request an interview after the I-829 petition is processed.
I-829 processing times
As of June 2020, USCIS has posted an average historical I-526 processing time for FY2020 (to date) of 37.2 months.
Upon successful approval of an I-829 petition (and the approval rates have been well over 90% for a consistent period of time), the EB 5 visa investor, his or her spouse, and their unmarried children under the age of 21 are issued 10-year Green Cards that can always be renewed. Now they can permanently live and work in the United States.
Five years from the date they were issued initial conditional residency, they will have the option to become U.S. citizens with all applicable rights and benefits.