EB-5

✅ 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, especially if they are interested in the faster processing offered by expedited approval and rural premium processing. When selecting an EB-5 eligible investment, consider these two desired outcomes: Green Cards, and return of capital. The first relates to likelihood of immigration benefits, the second relates to 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 $1,050,000, or $800,000 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 requirements:

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 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.

The fastest processing with projects in the national interest. 

EB-5 investments deemed to be in the national interest receive expedited approval by the U.S. Citizenship and Immigration Services. This results in processing of only two to six months. This is the fastest EB-5 processing possible.

Reserved visas and premium processing with rural projects. 

Investment projects in rural locations have a set-aside of 20% of the overall EB-5 visas and receive premium processing. Lawyers predict this processing to be a year or less. The set-aside allows investors to have an immediately available visa. While a standard EB-5 investment may result in a 10-14 year wait for a Chinese investor to receive a Green Card; with a rural investment a Chinese investor could be living in the U.S. within a year and a half.

Exemplar-approved projects

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.

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. Thus, big real estate projects in marquee locations were deemed to be most attractive as they were seen as “safer” for job creation.

However, since the enactment of the EB-5 Reform and Integrity Act of 2022, and 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. As many investors are motivated to pursue a TEA project for lower investment amounts, visa set-asides and premium processing for rural investments, they should understand that TEA investment projects, especially those in rural locations, can encompass a wide variety of industries.

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.

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 $800,000 it must meet Targeted Employment Area requirements at the time of the investment.

✅ 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

✅ Step 4: Removal of conditions

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)

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.