How do you apply for an EB-5 visa?
First, applicants must find or create a business project in which to invest in–either a new commercial enterprise, a troubled business, or a regional center project.
This article will lead you through the application process for EB-5 immigrant investors. For more basic information about the general EB-5 program requirements, please see our article: What is the EB-5 visa program and what are the requirements? If you have not already read that article, followed by its sister article, What are EB-5 regional centers?, then we encourage you to do so before reading this one. If you have read those articles, and are thinking that you’d like to apply for the EB-5 program; and either start or invest in a business in the United States in exchange for a potential Green Card, then this is the article for you! So let’s get into the basics of applying for the EB-5 program.
First, applicants must find or create a business project in which to invest in–either a new commercial enterprise, a troubled business, or a regional center project. New commercial enterprises are any lawful, for profit business and they can be structured as sole proprietorships, limited or general partnerships, corporations, business trusts, or any other public or privately owned business structure. Popular choices include hotels, sports stadiums, restaurants, real estate development and construction, office buildings, biotech and medical technologies, agricultural developments, and entertainment venues. EB-5 investors can get help from overseas migration agents in locating a project that best suits their particular needs. Migration agents are licensed individuals or or agencies who market EB-5 projects to a pool of of pre-screened foreign EB-5 investors for a fee, and they are often located in China. It is best to contact an attorney when considering working with an overseas migration agent.
Second, after the foreign investor has found, or has created the legal framework for the project/business they wish to invest in, applicants must make the required capital investment amount; in their chosen project. This is often done through an escrow account, which is a contractual agreement in which funds are received and disbursed by a third-party (usually a bank). Escrow arrangements are often preferable for investors and recipients, so that neither party has to concern themselves with the details regarding the sending and receiving of funds. Additionally, if the applicant invested in a regional center and his/her I-526 application is denied, the escrow agent will often return the funds to the applicant (per the terms of the agreement with the regional center). The investment amount must be $1,000,000, or $500,000–if the project is within a targeted employment area. Targeted employment areas are defined as rural areas, or an urban area which has experienced high unemployment (of at least 150 percent of the national average rate), at the time of investment. For more information about targeted employment areas please see this article.
After making the qualifying investment, the applicant must provide proof of this investment by filing an I-526, Immigrant Petition by Alien Entrepreneur, which typically takes about 12-18 months to process by USCIS. The I-526 can be found, here.
If the foreign investor has their Form I-526 approved by USCIS, then they become a two-year conditional resident, so that they can implement the project (or have it implemented on their behalf), in whole or in part, with the money they invested. This Conditional Residency can be obtained by, either: (1) if the investor already has lawful status in the US, then he/she must file a I-485 to adjust his/her status to a conditional permanent resident (the form can be found here); or, (2) if the investor does not already have lawful status in the U.S., then he/she must file for an immigrant visa by submitting the form, DS-230, to the National Visa Center; and then they must go through the process abroad, via the US consulate or embassy in their home country.
Both of these processes generally require the assistance of an experienced immigration attorney, as they are complex legal processes. The conditional residency status is usually granted between six to twelve months after applying. During the two year conditional residency period, the investor is required to fulfill physical presence requirements, and they cannot remain outside of the US for more than one year, without obtaining a re-entry permit. This time might be best spent managing the business in which the applicant invested in, including documenting the number of direct and indirect jobs the project has created.
Finally, if all goes well, EB-5 Investors will be able to remove their conditional two-year status by filing Form, I-829, in order to get full-fledged Lawful Permanent Residency (“LPR”) Status. This form must be submitted, 90 days before the two year date of the applicant’s receipt of conditional residency. In other words, the form must be submitted within 21 months after the the applicant first received conditional residency status.
This application states that the investor has met all the requirements of the EB-5 Visa Program. This application tends to take about six to eight months to process, and for the Green Card to be issued. Afterwards, the investor, his/her spouse, and their unmarried children under the age of 21, can permanently live and work in the US. They may also naturalize five years after they received their initial conditional residency, in order to become full United States Citizens.
While the EB-5 application process may appear to be complicated and difficult, the program has allowed thousands of immigrants to both diversify their financial portfolio, and become United States citizens. This process takes considerably less time than most visa programs, and most applicants receive citizenship status in 6-7 years. If you have the means to invest, and if you believe the program aligns with your personal and financial goals, you should definitely consult with an experienced attorney prior to applying. Hiring an experienced attorney can be the difference in getting your Green Card or having your application denied.
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