Immigration through Investment – The EB-5 Program
The Employment Based 5th Preference category (EB-5) Immigration through Investment program grants non-Americans and their immediate family members (spouse and children under the age of 21) permanent residency in the United States and the path to U.S. citizenship in a very timely manner. To apply, an immigrant investor must invest at least $1 million in a commercial enterprise and create a minimum of 10 direct U.S. jobs in the process. But if the investment is made in a specially designated “targeted employment area” (TEA) suffering from high unemployment or economic crisis, then the immigrant investor is required to invest only $500,000 and create 10 direct jobs. The immigrant investor and his/her family are then issued a “conditional green card” to immigrate to the United States. After two years, the conditional status is removed upon a showing that the investment created at least ten full-time permanent jobs for U.S. workers and "unconditional" or permanent green cards are issued.
The EB-5 Immigrant Investor Regional Center Program (RC Program) expired at midnight on June 30, 2021 due to a lapse in congressional authorization to continue the program.
The expiration of RC Program affects all Form I-526, Immigrant Petition for Alien Entrepreneurs and Form I-485, Application to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analyses.
However, already issued immigrant visas based on approved I-526 Petitions remain valid, and so and such visa holders, if otherwise admissible, should not have any problems being admitted to the U.S. as EB-5 based investor conditional residents. Further, the expiration of the RC Program has no impact on either the filing of new I-829 petitions, or on the adjudication of already filed (and still pending) I-829 petitions. USCIS will continue to accept the filing of new I-829 Petitions and will continue to adjudicate all pending I-829 applications. Conditional residents should continue to make sure that they file the required I-829 Petition within the 21-to-24-month period prior to the expiration of their conditional resident status.
While the current situation is not ideal, it is not unprecedented as the EB-5 Regional Center program has always been temporary, and it has previously expired between congressional authorizations. However, this is the longest stretch that the program has gone without being authorized since it was first enacted in 1992. But there is every reason to believe that Congress will pass legislation to reauthorize the RC Program.
We will provide further guidance and updates about developments as they occur.
Click Here for more information about this development.
Federal Court Invalidates 2019 EB-5 Rule Increasing Investment Amounts
On June 22, 2021, a federal judge for the U.S. District Court of the Northern District of California issued a decision in the case Behring Regional Center LLC V. Chad Wolf, et al., vacating the Final EB-5 Rule enacted by USCIS on November 21, 2019. The EB-5 Final Rule had increased the EB-5 investment amount from $500,000 to $900,000 for an investment in a Targeted Employment Area (TEA), and from $1,000,000 to $1,800,000 for an investment in a non-TEA.
The judge’s decision restored the original rules for the EB-5 program, initially established by the Immigration Act of 1990, reverting the minimum required investment amounts for foreign/immigrant investors to qualify for U.S. permanent residency in the U.S. minimum investment amount has again reverted to $500,000 for an investment in a TEA and $1,000,000 for an investment in a project not located in a TEA.
Click Here to see and download a copy of this decision
To simplify the program for foreign investors and allow for more efficient investment, the United States Citizenship and Immigration Services (USCIS) has designated certain areas throughout the country as “Regional Centers.” Regional Centers are operated by independent investment companies that generally pool individual investments into real estate and business opportunities to diversify their investment risk.
An immigrant who invests in a USCIS designated Regional Center must still invest $900,000 and demonstrate the creation of at least 10 direct or indirect jobs after 2 years. However, the immigrant is not required to live in the Regional Center, but can choose to reside anywhere in the United States, and moreover, is not required to “run” a business, though will still maintain an active role in determining policy and operations of the investment project(s). Often for a fee, the independent investment companies at the various Regional Centers maintain the investments, and provide the information needed to demonstrate the creation of at least 10 direct/indirect jobs when the investor immigrant seeks to remove the conditional status on his/her green card.
FREQUENTLY ASKED QUESTIONS
EB-5 - INVESTOR VISA FREQUENTLY ASKED QUESTIONS
Can I get U.S. green card (permanent resident status) through investment in the U.S.?
Yes. 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. This visa is commonly referred to as the EB-5 Investor visa.
There are two ways to invest in the U.S. under this program:
- Own and operate your business: This method requires an investment of a minimum U.S. $1 Million (unless you are in a “targeted employment area”) and that the investment directly creates at least 10 full time jobs within two years.
- Invest in a designated “Regional Center:” This method requires an investment of a minimum of US $500,000 and that the investment directly creates ten full time jobs within two years. With an investment in a regional center, there is no requirement that the immigrant investor open or individually run a business, or reside in where the regional center is located.
What is the process to obtain lawful permanent residency through investment?
Obtaining unconditional U.S. Lawful Permanent Resident status is a three-part process:
- First, an I-526 petition is filed demonstrating that you have the required funds, that the funds were obtained from a lawful source, that the funds have been (or are in the process of being) invested, and that the investment meets the EB-5 visa requirements.
- Once the I-526 is approved, you are eligible to apply for an immigrant visa when an immigrant visa in the EB-5 category becomes available to you.* At that time, you (and your eligible family members) apply for your immigrant visas at the nearest U.S. consulate (if you are outside of the U.S.) or file applications to adjust status to permanent resident (if you are already in the United States on another valid nonimmigrant visa). Upon entrance to the U.S. on your immigrant visa or approval of your application for adjustment of status, you are granted conditional lawful permanent residency for two years.
- Within ninety (90) days before the end of your two-year period of conditional resident status you must file an I-829 Petition to Remove Conditions on status, demonstrating that (1) you have maintained your capital investment in the commercial enterprise, and (2) the minimum required jobs have been created by your investment in the enterprise. If your I-829 application is approved, you are granted unconditional lawful permanent resident status.
What if I am already in the U.S. on another visa status?
An individual may file a I-526 petition if they live abroad or are already in the United States. The I-526 petition process remains the same. If, however, you are already in the U.S., after the I-526 is approved, you may then file an I-485 Application for Adjustment of Status to Permanent Resident, as opposed to applying for an immigrant visa with your local U.S. consulate. If you are outside of the U.S., you must file for an immigrant visa with your local U.S. consulate. We can advise you more specifically on the process in a direct consultation.
If I get a green card, do I have to live in the U.S.?
Yes, an applicant for conditional or permanent residence to the U.S. must intend to immigrate to the U.S. and maintain as their primary residence a home in the United States.
Can I travel?
A conditional or permanent resident is entitled to travel freely and may remain outside of the U.S. for less than 6 months at a time. If a such an individual needs to be outside of the U.S. for more than six months, he/she may apply (up to three times) for a reentry / travel permit, that is valid for 2 years, and establishes that the resident is not abandoning U.S. residency, despite the extended absence. However, any time spent outside of the U.S. is counted against the 30 month physical presence requirement for citizenship.
Can I bring my family and do they get permanent residency (a green card) if I invest in the U.S.?
A qualifying immigrant investor is eligible to sponsor his/her immediate family, which includes a spouse and all children under the age of 21 years old. All members of the immediate family are granted conditional permanent residency upon approval of the I-526, and all are eligible to apply to remove the conditions after two years.
Can I sponsor my 21-year-old or over child?
While a child who is 21 years old, or more, cannot apply for residency under the parent’s immigrant investment application, a parent may gift that child the required investment funds in order for the child to apply individually as an immigrant investor.
What are the fees associated with applying for an investment visa?
There are filing /application fees, legal fees and investment management fees if an immigrant invests in a regional center.
The current filing/application fees are:
I-526 Petition: $3,675
I-485 Adjustment of Status: $1,225 per individual ($750 for applicants under 14)
(if already in the US)
Visa Application fees: $345 + $220 USCIS Immigrant fee per individual
(if outside the U.S.)
I-829 Application to remove conditions: $3,750 for primary applicant/investor only
+ $85 biometric fee per individual
(file 21-24 mos. after becoming conditional resident)
Legal fees vary based on individual factors.
Please contact us online or call (202) 349-3744 for more information about legal fees.