EB-5 Program

Frequently asked questions

GENERAL QUESTIONS

What are the benefits of EB-5 Visa?

  • A direct route to a Green Card
  • No day-to-day business management
  • Permanent residency in the United States for you, your partner and any children under 21
  • Live, work and retire anywhere in the United States
  • Become a U.S Citizen after 5 years of being a green card holder
  • No Quota Backlogs - There are many delays and backlogs for employment and family based green card categories but there is no backlog for the EB-5 Visa Investor category.
  • No Sponsor Needed - Foreign investors use their own personal funds and do not require sponsorship from either an employer or a family member

What are advantages of investing in Regional Center projects?
Investment has been pre-approved by USCIS with respect to the qualifying amount of the investment and with respect to the job creation requirement, so approval is easier. The job creation requirement is relaxed. It counts direct, indirect and induced jobs. Generally, 3 to 7 direct job creation is enough for one investor. Investors do not need to manage day-to-day business.

What are the basic eligibility requirements of an EB-5 applicant?
The principal applicant should not have a serious criminal record, can demonstrate that the investment fund was lawfully earned and have good health.

How does the EB-5 program differ from the Canadian Investor Program?
The Canadian Investor Program involves less risk because either the federal program or the regional government guarantees the return of the investment.  Also, it does not require job-creation and gives a permanent green card straight away.  But, the Canadian Investor Program requires previous management experience and takes longer to obtain approval.

What is the obligation of a regional center's EB-5 investor?
The investor must be "active" in the day-to-day management of the investment or through policy formation.  The law allows the investor as a "limited partner" so that the investor does not need to participate in the day-to-day management operations, but only participate in the policy-formation activities.  The limited partnership allows the investor to live where he or she wants.  Moreover, the limited partner is only liable to the enterprise to the extent of the agreed-upon investment.

IMMIGRATION QUESTIONS

What documents should an investor prepare to initiate an EB-5 case?
Each EB-5 case requires different documents, but generally the investor should provide the following documentation

  • Identification documents such as passport and birth certificate
  • Lawful documents verifying source of investment capital
  • Bank wire documents
  • Immigration status documents such as the I-94

How to prove the investment fund meets the lawful source requirement?
Generally, the investor needs to provide some combination of employment records, tax returns, documentation regarding gifts, dividends, securities or real estate transactions.  The USCIS is flexible in determining whether the fund meets the requirement.

Can I use a gift from my parents to do EB-5 case?
Yes, but the need still exists to prove the gift money was obtained lawfully.

Who are eligible to immigrate with the principal applicant?
The principal applicant's spouse and unmarried children under 21 years old can immigrate together with the principal.  Under certain conditions, step-children also qualify.

Why an escrow account is used for regional center EB-5 cases when applying for the I-526?
First, a regional center can only have the investor's money wired into a limited partnership's bank account until I-526 is approved.  Second, this also protects investors who do not want to release the money until their I-526 applications are approved.

Does a "conditional permanent" resident have the same rights as a "permanent" resident?
Yes, "conditional permanent" residents have the same rights as "permanent" residents under U.S. immigration law.

What is the Immigrant Visa interview procedure?
The interview is the last step in the immigrant visa application process. The interview is conducted at the Immigrant Visa section at the American Embassy in the investor's country of residence. Investors submit documents, do fingerprinting and answer a consular officer's questions for about 10 minutes.  The consular officer must either approve the case and ask for pertinent documents or return the I-526 approval back to USCIS if the consular officer finds a clear failure to meet the requirements or a fraud.

For the EB-5 program, how long does it take to obtain permanent resident status?
First, it takes 3 to 6 months for the I-526 immigrant petition to be approved, and then it takes about the same time to get either the I-485 adjustment application or Immigrant Visa (IV) approved.  The investor becomes a conditional permanent resident after obtaining either I-485 adjustment approval or IV approval.  About 21 month later, the investor can submit an I-829 appeal for permanent status.  In all, it takes about 3 years to obtain the permanent resident status.

If I-829 is denied, can an appeal be made with the USCIS?
Unlike the I-526 petition procedure, there is no per se appeal right if I-829 is denied.  But at deportation hearing, USCIS will have to prove by preponderance of the evidence that they were right to deny the I-829 petition.  The investor may use federal court to fight the denial, though this litigation path is very costly. 

INVESTMENT QUESTIONS

Can an investor buy insurance from a third party for his EB-5 capital?
Yes, but the USCIS does not think this is a good idea.  USCIS' answer is quoted here:

"Yes, as long as the alien investor’s capital is “at risk”, and the indemnity policy does not constitute a redemption agreement or a guaranteed buy-back arrangement for the alien investor’s investment in the commercial enterprise. A determination as to whether a specific indemnity policy is contrary to the statutory and regulatory requirements have to be made on a case-by-case basis."

What are the risks for an EB-5 investor?
The risks generally include failure of the investment project, failure to meet job requirements and denial of permanent green card appeal.

When must the new position be created?
The regulations state that the requisite employment must be created within the two-year period immediately following the investor acquiring conditional permanent resident (CPR) status.

Can regional centers "guarantee" the return of the investment amounts to investors?
No.  The USCIS states that the investment must be at risk.  No regional center or limited partnership is allowed to guarantee the return of the investment funds.

Is a provision that promises investors to return the fund in the event of I-829 denial legal?
No, the USCIS made it clear that this kind of arrangement will not be allowed.

Can a regional center project count jobs created outside the region?
It is safe to say the direct jobs created outside the region will not be allowed to count.  As to indirect jobs, most likely they will not be allowed to count.

What types of job-calculation methodologies are accepted by USCIS for regional centers?
The USCIS has accepted methodologies such as IMPLAN, RIMS, REDYN and REMI.  Job-creation studies vary from project to project. The more specific and conservative the study is, the more likely that the assumptions that the predictions are based on will be met.

Can direct construction jobs be credited for I-829 purposes?
Direct, indirect and induced construction jobs may count, as long as certain conditions are met.  USCIS said that direct construction jobs count only if such positions last for 2 years or more, which is not very likely due to the nature of construction jobs.