The EB-5 visa category was created to make permanent residency available to foreign investors who wish to contribute at least $500,000 (or in some cases $1,000,000) to a U.S. business enterprise that will create jobs. There are two types of EB-5 investments: project or regional center-based investments and direct investments.
EB-5 Visas: Green Cards for Investors
In the past 20 years, Lubin, Salvetti & Associates has helped hundreds of foreign investors receive green cards through investments in U.S. business ventures. The EB-5 visa category was created to make permanent residency available to foreign investors who wish to contribute at least $500,000 (or in some cases $1,000,000) to a U.S. business enterprise that will create jobs. There are two types of EB-5 investments: project or regional center-based investments and direct investments. Investments in regional center projects represent the vast majority of our clients' investments.
EB-5 visas were created to stimulate the U.S. economy by making a new source of funding available to projects that need it. In order to push the projects to the areas that will benefit the most from new developments and job creation, the U.S. government reduced the minimum investment amount when the projects are located in with high rates of unemployment. If an investment is made in a project taking place in a "targeted employment area," a minimum investment of $500,000 is required. EB-5 investments typically fund new developments, but they can also be made to save businesses that need help getting beyond difficult economic times.
An EB-5 visa is requested by filing Form I-526 with hundreds – and sometimes even thousands – of pages of supporting documents related to the investment project and the investor. More than anything, EB-5 visas are attractive to many people with the means to make to the necessary investment because the investment leads to a green card for investor as well as his or her spouse and children (under the age of 21). EB-5 investments also do not require permanent employment with the investment vehicle or meeting the difficult requirements of many other employment-based visas.
EB-5 cases can be complicated for both investors and for attorneys who have not handled many of them. There are strict requirements about the investment and the investor that must be met before the visa can be granted. Fortunately, our office is very experienced in handling EB-5 cases, and we offer a full refund of our legal fees if our client's petition is not granted.
Making the investment and the at risk requirement
The EB-5 process starts with the investor deciding upon a project that suits his or her goals and making an investment into it. Investments are most commonly structured as limited partnerships where the investor makes the required investment and receives a share or shares in the partnership. The first key requirement is that an EB-5 investment be considered "at risk." That means the investment funds must actually be invested in the project and the funds must be available to be used for business purposes upon I-526 approval – most EB-5 projects make use of escrow agreement that release the funds to the project upon approval of the investor's I-526 petition. Additionally, this means the investment project must have access to the full investment amount – an investor cannot give some of the funds now and some later or issue a note that makes a portion payable upon a certain event.
"At risk" also means that return or redemption of the investment capital cannot be guaranteed. If an investment was made into a project which guaranteed the return of the funds, it would not be considered at risk and that petition would not be approved due to that redemption agreement – in market terms, a "call option" would be impermissible in an EB-5 investment. In any EB-5 investment, there must be the chance of a loss or the possibility of a gain. That is why project selection in EB-5 is so critical for investors – if their investment must be at risk, they would be wise to select an investment project that is as secure as possible.
Filing the petition
There are two different parts of an I-526 petition – the project's documents and the investor's documents. The project's documents must, like an investor's, meet very specific USCIS requirements. Clients will need to show that the project is solid and likely to create the required jobs. To do that, the project will provide a comprehensive business plan, realistic financial projections, and an economist's report that shows the required number of jobs will be created. An EB-5 project must also show USCIS other information about its formation and its activities – if any progress has been made on the project, a client will need to provide evidence of that to USCIS.
Fortunately for our clients, attorneys at our office often work on the development side of projects. We know the documents that projects must provide for investors to be successful. In working on our clients petitions, we also work with project developers to make sure they have turned over everything our clients will need for I-526 approval.
In addition to evidence about the project, EB-5 investors must also prove that they lawfully accumulated their investment funds. It is our job to clearly explain to USCIS how our clients earned the money they invested in the projects. We do that by working with our clients to understand their financial history and then we create a logical explanation which shows how the funds were transferred from the client to the investment project. Many clients have real estate holdings, for example, which have gone up in value by more than $500,000, while other clients can show several years of high earnings and consistent savings. There are, of course, many ways to show USCIS that the investment funds were lawfully accumulated and these will vary widely between different investors. We explain our clients' accumulation of wealth to USCIS in such a way that they will understand it and approve their petitions.
Consular processing or adjustment of status
After I-526 approval, investors must either schedule an interview at the consulate in their home countries or, if they are already in the U.S. on another status, they may adjust status here. Once that is successful, a client will be given their visa and they will receive a 2 year Green Card shortly after that.
I-829, removal of conditions
Shortly before the second anniversary of an investor's Green Card, it becomes appropriate to file an I-829 petition. In this, we ask USCIS to remove the conditions from our client's green card and we do this by providing evidence that our client's investment has helped create the jobs it is required to and by showing that the project has followed its original business plan to the extent possible.
At this stage of the EB-5 process, our office is again uniquely able to help our clients because our attorneys also work on the project development side. For that reason, they know which documents USCIS expects to review and they know where to find those documents or who to work with to obtain them.
An I-829 petition is typically filed within 90 days of the expiration date on the green card. Between filing and when a decision is made, the investor remains in valid status and their green card is automatically extended for one year (and they are also allowed to travel). That one year period can be extended if no decision is reached. After I-829 approval, a green card is issued and it will not have any conditions on it. After five years of permanent residency – which includes the two years of conditional permanent residency – an investor is eligible to apply to become a U.S. citizen.