These FAQs are based on the collective experience of industry professionals and publicly available sources, including statutes, regulations, and policy guidance issued by the U.S. Citizenship and Immigration Services (USCIS) and other government agencies. Key governing authorities for the EB-5 Program include:
This content is for informational purposes only. It does not: constitute legal, financial, tax, or immigration advice; create an attorney-client relationship; or serve as a substitute for professional consultation with qualified counsel or advisors. Each EB-5 case, transaction, and professional endeavor is fact-specific and subject to ongoing policy and regulatory requirements, which may change. Users should rely on current, official sources and individualized guidance when making EB-5 plans and decisions.
The United States government created the EB-5 Immigrant Investor Program in 1990 in an effort to attract foreign investment and boost economic growth, but due to its overall complexity and lack of utilization, the Regional Center program was launched in 1993 to help formalize and popularize the program by permitting investors to pool investments in larger projects.
Eligible foreign nationals can invest either $800,000 or $1,050,000 in a new commercial enterprise. When investors demonstrate that their investment has created at least ten jobs for U.S. workers, they may receive Green Cards for themselves and their families.
Yes.
For investments in areas other than “targeted employment areas,” the minimum amount of investment is $1,050,000. Investments in “targeted employment areas,” which include most regional center projects, can qualify with a minimum of $800,000.
A targeted employment area is a rural area or a geographical area that has experienced unemployment at a rate of at least 150% of the national average rate.
Each EB-5 investor must create 10 permanent jobs for U.S. workers in order to obtain a “Green Card”.
All investments are subject to risk and Regional Center projects are not exceptions. Under the law, the new commercial enterprise cannot guarantee profit or the return of an investor’s principal investment. There are no assurances that a member’s petition will be granted or that a member will be able to obtain an immigrant visa or unconditional lawful permanent resident status. Laws, regulations and interpretations of the EB-5 Program are subject to change at any time.
Any person who can demonstrate the ability to: 1) deploy the required amount into the American economy, 2) document that the capital was legally earned, and 3) satisfy general eligibility requirements (e.g., medical, criminal) is qualified to apply for the EB-5 program. There are no language, business, or education requirements for applicants.
Under USCIS regulations, the investor must demonstrate that his or her assets were gained in a lawful manner. This requires the investor to prove that his investment funds were obtained through lawful business, salary, investments, property sales, property loan, inheritance, gift, loan, or other lawful means.
The applicant must prove that the investment has been sustained – not withdrawn – and that the requisite jobs have been created as a result of the investment.
No. Most EB-5 projects will allow a partial investment which will allow the EB-5 Investor to file their I-526E petition prior to the full $800,000 being invested.
The Green Card holder is free to travel in and out of the United States subject to the rules generally applicable to permanent residents. Specifically, he or she must maintain a residence in the United States and must not be outside the United States for a continuous period of one year or more, unless he or she has obtained a reentry permit.
The U.S. Citizenship and Immigration Services (USCIS) office is the U.S. government agency that processes all immigration documents. A great amount of immigration information can be found on the USCIS website at www.USCIS.gov, including additional information on the EB-5 Program, forms including the I-526E and I829, and much more.
The EB-5 Program allocates 10,000 visas per year for immigrants and their families whose qualifying investments result in the creation or preservation of at least ten full-time jobs for U.S. workers.
A central requirement of the program is that an EB-5 investor’s capital must remain “at risk” for two years, and this requirement is interpreted to mean that no guarantee of return of capital may in existence during the “at risk” period. Therefore, an EB-5 investor may not be given any guarantee that his or her investment will be returned at any particular time or at all. Note that the “at risk” requirement does not mean that the risk needs to be high.
While the EB-5 program requires that investors be actively engagement in the management of the enterprise, the active engagement requirement may be satisfied through having rights similar to those of a limited partner in a partnership. Accordingly, the EB-5 Immigrant Investor Regional Center Program is considered by many to be more like a passive investment program. Under the EB-5 program, foreign investors can obtain a U.S. Green Card (permanent residency) by investing a specified amount of capital in a new commercial enterprise that creates jobs for U.S. workers.
Failure by a project to return capital, in part or in full, can occur for several reasons, including:
HomeFed’s affiliates provide management and compliance services to qualifying EB-5 new commercial enterprises investing in real estate development projects. HomeFed’s affiliates manage these new commercial enterprises with the assistance of the industry’s foremost EB-5 securities attorneys, immigration attorneys, fund administrators, and economists. The process includes EB-5-compliant business plans, economic impact analyses, an EB-5 Targeted Employment Area (TEA) qualification, fund administration reporting and preparation of securities offering documents designed to meet U.S. Citizenship & Immigration Services (USCIS) requirements.
HomeFed in-house EB-5 subject matter and source of funds experts provide all existing and potential clients with a complimentary source of funds qualification. Our clients can save thousands of dollars and time with our quick, free professional review of the strength of your case approval.
Furthermore, HomeFed EB-5 project selection includes best-in-class EB-5 project options designed to meet 100% of the government’s EB-5 program requirements. HomeFed also structures the EB-5 project with the safety and security of investors in mind and provides oversight of the project and the investment. We are backed by a strong network of attorneys.
Though your immigration attorney oversees and prepares the entire application process, the HomeFed team is available to support you and your family through the entire immigration process. In addition, HomeFed is the only EB-5 fund sponsor that offers clients a complimentary source of funds qualification confirmations.
EB-5 continues to receive bi-partisan support in the U.S. Congress, as it funds economic development projects with no cost to U.S. taxpayers.
1. Minimum Capital Requirements:
$800,000 investment in a new business: Most EB-5 applicants invest through the Regional Center Program at the $800,000 level, in a Targeted Employment Area (TEA)
$1,050,000 option available for non-TEA areas
2. New U.S. Jobs Requirements:
Create or preserve at least ten (10) full-time jobs for U.S. workers
3. “At Risk” Investment:
Investment must be “At Risk” (i.e., fully invested in a project, fund, or enterprise) for minimum of two years. Per U.S. law, the EB-5 investor cannot be offered any guaranteed return on or of capital nor possess any redemption rights.
4. Legally Sourced Investment:
Acceptable options include (but are not limited to):
In order for a project to qualify as an EB-5 Project with USCIS, the regional center must oversee preparation of multiple documents as evidence to determine whether or not the project is compliant with EB-5 Rules and Regulations. These include the Business Plan, Confidential Offering Memorandum, Economic Analysis, and all supporting documentation, which are submitted by the Regional Center to USCIS as a project application and then submitted with each investor’s petition.
No. An EB-5 investor is not required to be the majority owner of the NCE or to be the sole owner of the NCE.
An investor’s EB-5 Visa petition must include extensive information about the investor, his or her source and path of funds and information on the project, the new commercial enterprise and the job-creating entity that is provided by the new commercial enterprise.
There are no requirements with respect to prior business experience or education.
It is highly advisable for non-English speaking investors to enlist the assistance of a translator. This ensures a comprehensive understanding of investment terms and meticulous review of offering materials prior to making an informed decision.
During the EB-5 immigrant visa interview, applicants should be prepared with required documents, answer questions about their investment, background, and intentions, and undergo security checks. If approved, they will receive instructions on collecting the visa and entering the U.S. as a conditional permanent resident. Removal of conditions is required within two years of entry to obtain a permanent green card. Consulting an immigration attorney is advisable for a smooth process and required by many projects.
To maintain your Lawful Permanent Resident (LPR) or Conditional Residence status (Green Card), it’s essential to avoid relinquishing your U.S. residency. You can travel outside the U.S. for more than 180 days without compromising your residency status. To extend your time abroad, obtaining a re-entry permit is advisable. This permit permits an absence of up to two years without jeopardizing your U.S. residence.
You can apply for a re-entry permit (using Form I-131) before departing the U.S. It’s permissible to leave before the permit’s approval. With a re-entry permit, you’re free to return to the U.S. until the permit expires. These permits are initially issued for two years. After this period, you can reapply for another one. The second re-entry permit is also valid for two years. Subsequent permits, however, might be granted for one year at a time.
If you spend two or more years outside the United States after receiving a re-entry permit, you’ll need a Returning Resident (SB-1) immigrant visa. Failure to maintain your intention to reside in the United States while living in another country may result in the abandonment of your Permanent resident status, including your Green Card.
Once you receive a Green Card, there are only two conditions required to keep it for life. First, you must not become removable or inadmissible. The most common way of doing this is to be convicted of a serious crime.
The second requirement is that you not abandon the United States as your permanent residence. As long as you are not planning to make your home somewhere else, then legally you are still a resident of the United States.
Your Green Card through investment (EB-5 visa) will initially be conditional and must remain conditional for a minimum of two years. You must apply for removal of the condition within 90 days before the two years are up. Once that is approved, you have a regular unconditional Green Card, which must be renewed after ten years.
Short answer: There is a difference between “continuous residence,” which refers to a requirement for naturalization, and maintaining residence in the U.S. for Green Card purposes:
If you are interested in obtaining U.S. Citizenship as soon as possible and becoming a naturalized U.S. citizen, then as you receive a conditional Green Card and enter the country, you should aim to spend at least 180 days per year in the U.S.
If, on the other hand, you are interested in simply maintaining residency status and your Green Card, as long as you spend no more than 180 CONSECUTIVE days OUTSIDE of the U.S., you may fulfill this requirement. All decisions relating to the maintenance of the Green Card should be discussed with an immigration attorney.
U.S. Permanent resident status bestows immigrants with a multitude of rights and privileges. Green Card holders can establish their residence and employment anywhere in the United States, enjoying complete protection under federal, state, and local laws. They maintain the liberty to travel abroad, utilizing a valid passport from their home country. To maintain this status, meeting the physical presence requirement is essential, a topic elaborated upon in the subsequent section.
Beyond these rights, Permanent Residents enjoy an array of additional advantages, including access to top-tier higher education and exceptional healthcare facilities. Furthermore, they have the opportunity to pursue U.S. citizenship.
Responsibilities of Permanent Residents
Along with the rights and privileges mentioned above, Permanent Residents are expected to fulfill certain responsibilities:
Permanent Residents are required to pay all applicable state and federal income taxes. They must file income tax returns with the Internal Revenue Service (IRS), paying taxes on their gross worldwide income. Immigrants from countries with which the United States has tax treaties may be able to obtain credit for the payment of their foreign taxes.
Like all male U.S. citizens from age 18 to 25, male Green Card holders must register with Selective Service. Registration for Selective Service does not, in itself, entail service in the U.S. military, but it does mean that any male Permanent Residents from age 18 to 25 will be subject to the draft.
In addition to paying taxes and registering with Selective Service, Permanent Residents are expected to be of good moral character. In order to maintain Permanent resident status, an immigrant must fulfill the physical presence requirement, which generally entails physically residing within the United States for six months or more in any given year. If a Permanent Resident spends more than one year outside of the United States, he or she must obtain a reentry permit or face losing Permanent resident status.
If outside of the United States for two or more years after being issued a reentry permit, a Returning Resident (SB-1) immigrant visa is necessary. While outside the United States, Permanent Residents are still required to file U.S. income tax returns, and failure to do so may jeopardize their status. Permanent resident status will be considered abandoned if a Green Card holder moves to another country and no longer intends to reside in the United States.
Yes, exactly the same benefits except that they do not become permanent until the I-829 petition is approved.
An investor approved for an EB-5 visa (after the I-485 petition is approved or consular process concludes) receives a conditional Green Card valid initially for two (2) years. In order to remain a conditional Permanent Resident, a conditional Permanent Resident must file an I-829 petition (application) to remove the conditions 90 days before the conditional Green Card expires. The conditional card cannot be renewed. An unconditional Green Card, once issued, is typically valid for 10 years and can be renewed indefinitely.
No, a sponsor is not necessary.
You must be able to prove that you do not have any communicable diseases and have evidence from a doctor of having all the required vaccinations.
The minimum conditional Permanent Resident period is two years. Within 90 days of the end of this two-year period, the investor must file an I-829 petition for removal of conditions of permanent residence.
Investors are not guaranteed a Green Card, as the I-829 petition approval is based on whether the investment funds have created the requisite number of jobs.
The EB-5 Program requires that the investment be at risk throughout a minimum sustainment period of two years, meaning each investor faces some level of uncertainty. If a new enterprise fails before the investor has filed his or her I-829 petition, USCIS may deny the petition if the jobs were not created or no longer exist, meaning the investor may lose all or a part of the investment and will additionally be ineligible for a Green Card.
The I-829 petition is the final step in the EB-5 Immigrant Investor Program. Investors and their attorneys file this petition with USCIS and provide evidence that the investor has successfully fulfilled all of the Program’s requirements, particularly that investor funds resulted in the creation of at least ten jobs. Upon approval of the petition, investors and their qualified family members receive permanent Green Cards.
In this case, the second parent may take over as the Principal Applicant and the application continues. However, if you wish to not proceed with the application at all, then the second parent may refuse to step in as principal applicant, in which case the application itself will be denied by the USCIS.
Follow-to-join (FTJ) applications are commonly pursued when the petitioner is in the process of obtaining their Green Card at the U.S. Consulate. In this scenario, eligible family members who are present in the U.S. can “follow to join” by submitting adjustment of status Green Card applications, or the reverse may apply. In the context of an EB-5 case, a qualifying family member (such as a spouse or child under 21) can securely opt to join during the two-year period of conditional residency status held by the principal applicant.
No. Concurrent filing refers to the process where an EB-5 immigrant petition and adjustment of status can be filed simultaneously. This eliminates the need to await a consular interview in one’s home country after approval before proceeding to file for an adjustment of status. This process was included in the EB-5 Reform and Integrity Act in 2022.
It is designed for EB-5 investors or foreign nationals who are the primary applicant and are already physically located inside the United States on another visa.
Upon the adjustment of their status, they can promptly seek travel rights and work authorization. Through this filing process, a work permit and advanced parole can be obtained within 3 to 9 months. This effectively enables individuals to reside in the U.S. shortly after making their investment in an EB-5 project, facilitating work opportunities and travel privileges.
The unmarried child, if a part of the I-526E petition, will retain the Green Card. Once granted, the Green Card is not rescinded if the person later gets married.
If the I-526E petition has been filed, then the principal applicant’s spouse may also obtain a visa.
However, spouses of children (dependent applicants) are not eligible to join the petition. As per the EB-5 Visa Program regulations, the Green Card may be given to only children below the age of 21 and unmarried at the time of application filing. However, the spouses of children may be benefited through other processes.
The I-526E petition is the initial application for the EB-5 Immigrant Investor Program. Prospective investors and their attorneys file this petition with the USCIS and include documentation demonstrating the investor’s eligibility.
After an EB-5 investor has chosen a project and completed the requisite investment, the next step involves filling out Form I-526E, known as the Immigration Petition by Alien Entrepreneur. This form, accompanied by all necessary supporting documents, is then submitted to the U.S. Citizenship and Immigration Services (USCIS). The USCIS meticulously evaluates the I-526E petition to determine the applicant’s eligibility for the EB-5 visa program.
In this process, immigration attorneys take charge of compiling and submitting I-526E petitions on behalf of their clients. Upon submission, the investor can expect to receive an acknowledgement or receipt number for the petition, commonly known as I-797 (C), from the USCIS within 7 to 10 days. This acknowledgment signifies that the USCIS has received the submitted documentation and will begin the review of the investor’s application.
It’s worth noting that if any information is missing or inadequate, the USCIS may issue a Request for Evidence (RFE), which can prolong the approval process of the petition.
It is highly recommended that an investor obtains legal services for their immigration petition submission. The documentation needed for the I-526E petition package is extensive, and an experienced immigration attorney can provide valuable assistance with the petition, consular interview, and visa processing. Many projects require investors to obtain a qualified immigration attorney to submit the I-526E petition.
Once the I-526E petition is filed, the processing time can be verified directly in the USCIS website through this link: https://egov.uscis.gov/processing-times/. Once approved, the time for an investor to schedule and pass the U.S. Consulate interview may vary from a few to several months, depending on the U.S. Consulate’s schedule availability. After that, once the visa holder enters the U.S. with the EB-5 visa, the conditional Green Card should be received by mail in a few weeks.
Yes, the investor and his/her family can travel back and forth without affecting I-526E processing. An investor should consult with an EB-5-specialized immigration attorney.
Family members may be interviewed in different countries. The country of origin – or where the family has current ties – is the standard interview site. However, a student attending school in the U.S. would not have to return to the country of origin; status can be adjusted in the United States at the district office of the USCIS.
The purpose of the consular application is to ensure that the investor and family members undergo medical, police, security, and immigration history checks before the conditional Permanent Resident visas are issued. At the interview, the consular officer may address these issues and information printed on the I-526E petition, including the nature of the investment. If the investor and family are in the United States, they may apply to adjust their status at the appropriate office of the USCIS.
USCIS evaluates an investor’s I-526E petition based on the following five (5) criteria:
Investment amount meets EB-5 requirements
An EB-5 investor’s I-526E petition must demonstrate that the minimum required capital was invested in a new qualifying business enterprise. For projects located within a TEA, the minimum investment amount is $800,000. In order to meet USCIS requirements, the invested capital must also be considered “at risk” and irrevocably committed to the project.
Investment capital was lawfully obtained
The EB-5 investor must also be able to clearly demonstrate on his or her I-526E petition that the invested capital was obtained lawfully. The investor must trace the capital from its source—a salary, investment distribution, sale of property, loan against property, inheritance, margin loan based on marketable securities portfolio, etc.—to the new commercial enterprise (NCE). Funds given to the investor must also be traced back to their source.
Capital was invested in a new commercial enterprise
An EB-5 investor’s I-526E petition must demonstrate that the necessary amount of lawfully obtained capital was invested in a NCE. An NCE is defined as a for-profit entity engaged in ongoing, lawful commercial business activity. The enterprise must have been established after November 29, 1990.
New commercial enterprise meets job creation requirement and business plan is compliant
Investing in an NCE is not, by itself, sufficient for EB-5 visa approval. USCIS requires that the job-creating entity (JCE) or entities to which investor capital is provided must create at least ten full-time jobs for each EB-5 investor involved. The business plan underlying the project must also meet USCIS requirements.
For those who make direct investments, these ten positions must be created directly by the JCE and they must be permanent, full-time (at least 35 hours per week), and filled by W-2 employees. Positions filled by the investor’s family cannot be counted toward the minimum job creation requirement. The investor’s I-526E petition must demonstrate that at least ten jobs have been or will be created. To demonstrate future job creation, the I-526E must include a clear description of the NCE’s hiring plan, including which positions will be created and when they will be filled.
When sponsored by a regional center, an NCE must still create a minimum of ten positions per EB-5 investor, and these must also be full-time, but they can be created either directly or indirectly through investment in a JCE, subject to a minimum amount of direct jobs. Indirect jobs are those created through the operations of the JCE. Any indirect jobs counted toward an investor’s minimum job creation requirement must be predicted and described in the investor’s I-526E petition through an economic report.
Investor is actively engaged in management of the new commercial enterprise
In addition to demonstrating that enough lawfully obtained capital was invested in an NCE—and that the investment was responsible for the creation of ten job positions—an I-526E petition must demonstrate that the EB-5 investor is actively engaged in managing the NCE. Those who make direct investments in an NCE may manage the enterprise, act as a member of the entity’s Board of Directors, maintain voting control, or otherwise demonstrate day-to-day involvement with the business. Typically, NCEs sponsored by a regional center are structured as limited partnerships or limited liability companies. In such cases, an EB-5 investor is a limited partner or member, has rights similar to the Uniform Limited Partnership Act, and as such, he or she is considered sufficiently engaged in managing the NCE to satisfy the requirements of USCIS.
A re-entry permit, also known as Form I-131, is a travel document issued by U.S. Citizenship and Immigration Services (USCIS) that allows lawful permanent residents (green card holders) to re-enter the United States after traveling abroad for an extended period of time without jeopardizing their permanent resident status.
The primary challenge often arises from inadequate documentation of an EB-5 investor’s source of funds. It’s a common occurrence where individuals aim to provide the bare minimum information, only to receive a request for additional details. In this scenario, it’s wiser to err on the side of excess information rather than being overly concise. In today’s environment, where the federal government thoroughly examines foreign direct investment, USCIS case examiners demand comprehensive and well-substantiated proof of the funds’ origin.
Rejection in the past does not disqualify the applicant unless the reasons are related to immigration fraud or other significant problems. However past visa denials must be reviewed carefully with an experienced EB-5-specialized immigration attorney. It is most important that all criminal, medical, or U.S. immigration history problems be disclosed to legal counsel in advance of application.
Applicants (via counsel) may withdraw their I-526E at any time prior to adjudication by mailing a letter requesting withdrawal to the USCIS.
Withdrawal or denial should not have any negative impact on future visas or travels to the U.S.
In the event of an unforeseen denial by USCIS, the offering documents for the investment will specify how funds are returned. These procedures are usually specified in the Confidential Offering Memorandum, the Limited Liability Company or Limited Partnership Agreement and/or the Escrow Agreement.
You can prevent any age out issues by filing the case before the child’s 21st birthday. Upon filing the I-526E petition, the child’s age will freeze for immigration purposes and remain that way until the I-526E is approved.
It depends on the specific state’s requirements. In most cases, the student would move to the U.S. after their junior year of high school and spend their final year in the state and may qualify for in-state-tuition.
Yes. This is a very common option; in fact, it is one of the most popular ones. It is important to note that BEFORE this transaction occurs (the gift), the couple should engage their financial adviser and immigration counsel so that this gifting process is done correctly.
One of the most important rights legal permanent residents possess is the right to obtain U.S. citizenship after five years. There are two ways to become a U.S. citizen. One is by being born in the U.S. or being born to a U.S. citizen.
The other way is by naturalization. The first step in becoming a U.S. citizen through naturalization is to become a Legal Permanent Resident (LPR). Being an LPR for 5 years is one of the basic requirements to qualify for naturalization. A second requirement is being physically present in the U.S. for 30 months during the 5 years prior to the naturalization application. Upon attaining U.S. citizenship, an individual gains privileges such as the right to vote and the eligibility to hold public office.
Permanent resident status is not the same as U.S. citizenship. While permanent residents can live and work in the United States, they remain citizens of their home nation. As such, permanent residents cannot obtain U.S. passports, cannot vote in U.S. elections, and are not allowed to run for U.S. elected office.
U.S. citizens often find it more streamlined to sponsor foreign national family members for entry into the United States. Additionally, citizens enjoy enhanced opportunities for federal employment, as well as increased access to federal aid and benefits, encompassing Social Security and Medicare. The process of becoming a U.S. citizen involves permanent residents filing for citizenship through USCIS.
EB-5 investors may apply for citizenship after maintaining their permanent resident status for five years. This five-year period starts when an EB-5 investor is granted conditional permanent resident status.
If your goal is to achieve U.S. citizenship promptly through naturalization, it’s recommended that upon receiving your conditional Green Card and entering the country, you endeavor to spend a minimum of 180 days per year in the U.S. consistently for a duration of 5 years.
For naturalization, the individual must be physically present in the U.S. at least 50% of the time + 1 day for the last five years (so about 181 days per year). The clock for the five years of residence starts on the date of issuance of the first Green Card (during the conditional residence). Continuous residence entails that the individual refrains from undertaking trips outside of the U.S. exceeding a duration of 180 days.
USCIS employs a distinct method for counting days spent outside the U.S. In their calculation, even if you depart on a Friday and return on Monday at 8:00 AM (spanning four days), USCIS accounts for the day of departure, the days in between, and the day of arrival back in the U.S. Trips exceeding 180 days outside the U.S. are regarded as potentially disrupting your “continuous residence” for naturalization purposes.
Sometimes. The U.S. allows dual citizenship, but your original country of origin may not allow it.
The EB-5 process timing depends on a number of variables. These variables include investor preparation for filing, USCIS processing times after filing, visa wait times after approval, time for investor and family members to enter the U.S., and USCIS processing times for petitions to remove conditions.
USCIS’ prevailing policy permits the investor’s funds to be placed in escrow during the Form I-526E petition stage. These funds may remain in escrow until the investor successfully secures conditional lawful Permanent Resident status. The investor’s funds are directly deposited into escrow and remain there until the conditions for release are met, as outlined in the project’s offering documents executed by the investor.
Upon reaching the Return of Capital stage, the investor has the option to repatriate the funds to a non-U.S. account or maintain them within the U.S. using a valid U.S. account in their name.
Visa backlogs mean that investors must wait to obtain their EB-5 visas after I-526E petition approval. The duration of the wait is determined broadly speaking by how many visa applicants are ahead of a particular investor in the visa queue. Because children keep aging until the parent-investor’s place in the queue is reached, in-depth discussion with immigration advisors is essential to informed decision-making and planning before investment.
The U.S. immigration system operates on a quota-based framework, which entails placing limitations on the number of visas issued annually. The EB-5 category typically offers around 10,000 visas per year. When the demand from visa applicants surpasses the available supply, a backlog ensues. As of January 2023, visa backlogs affect nationals from China and India.
The EB-5 immigration law establishes a statutory cap of 10,000 visas annually for the EB-5 Program. Within this allocation, each country is assigned a quota of 7 percent. It’s important to note that the derivative family members of a principal investor also contribute to the tally against the annual cap.
A Request for Evidence (RFE) from USCIS is a request for additional evidence to address and support specific parts of the pending I-526E petition. The petitioner may have a certain number of days indicated in the RFE notice to respond to the requests in the RFE notice. If the petitioner (investor) does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives your response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.
USCIS may issue an RFE for virtually ANY reason, although the following reasons for an RFE are not unusual:
1. Source of Funds:
The USCIS may ask the Investor for further clarifications / paperwork that the money they are using to invest in the fund are absolutely clean and they had control over that money when they invested that amount. All of this paperwork is done by lawyers on behalf of the investors and hence the SOF is the most important check for this. If the lawyer himself does not approve the SOF, then the application must not be made, In which case we will not take the case until we are fully satisfied.
2. Job creation or other project-related issues:
The USCIS may raise an RFE relating to the investment for evidence that the jobs were or are or will be created before the money is returned, or other business aspects of the investment. This is where the project due diligence plays such an important role and hence one must look at mature projects, which are nearing completion. Such an RFE requires the funds to prove that the at least 10 jobs per investor have been created.
Your initial step should involve notifying your immigration attorney. They will collaborate with both you and USCIS to ensure that any concerns raised by USCIS are adequately resolved. Ignoring the Request for Evidence (RFE) is not a viable option; failing to respond within the stipulated timeframe provided by USCIS might imply that the investor no longer intends to pursue the case.
Actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with an EB-5 regional center.
A TEA is a geographical area that is considered rural or has an unemployment rate of at least 1.5 times the national average. When EB-5 Visa applicants invest in a TEA, they can invest $800,000 rather than $1,050,000. Individual states issue letters confirming a location as a TEA.
TEA designation by USCIS requires the applicant to submit evidence (examples given above) that the location of the NCE in which the applicant is investing has an average unemployment rate of 150 percent of the national average.
An EB-5 rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.
If you want to manage your own business, consider a “direct investment” approach to EB-5 by investing $1,050,000 (or $800,000 in a TEA) into your own business, which you control, and creating the necessary 10 new jobs within that new enterprise. If your goal is to have a Green Card and not to actively manage a business, it is more often more convenient and possibly with much less risk to utilize a structured investment program in the Regional Center EB-5 category rather than to start and maintain your own business.
In 1990, the EB-5 Program originated as a “direct investment” program, but due to its overall complexity and lack of success, the Regional Center Program was launched in 1993 to help formalize and popularize the program by permitting investors to pool investments in larger projects.
Regional centers are organizations with a defined geographic boundary authorized by United States Citizenship and Immigration Services (USCIS), through which EB-5 investor funds are received and managed by a New Commercial Enterprise (NCE). Regional centers promote economic development and job creation within a specific geographic area.
On June 2, 2022, the United States Citizenship and Immigration Services (USCIS) released two new forms related to the EB-5 immigrant investor program:
Both of these forms were created under the EB-5 Reform and Integrity Act of 2022 web.archive.org congress.gov, a statute that revised the EB-5 statutes found in section 203(b)(5) of the Immigration and Nationality Act (INA). Both of the forms apply to certain regional center cases. Where applicable, they will be required for EB-5 petitions effective June 2, 2022.
The USCIS explained the purpose of the new forms.
The Form I-956F can only be filed by an approved EB-5 regional center. The Service explains that “[it] is similar in some respects to an ‘exemplar’ submission on Form I-924 under the previous program.” The Form I-956F “is required by statute for regional centers to apply for approval of each particular investment offering through an associated new commercial enterprise.” The filing fee for the Form I-956F is $47,795.
The Service explained that the Form I-956G replaces the Form I-924A from the previous EB-5 program and rules that existed prior to the EB-5 Reform and Integrity Act of 2022.
The Service explained that the Form I-956G replaces the Form I-924A from the previous EB-5 program and rules that existed prior to the EB-5 Reform and Integrity Act of 2022.
The I-829 petition is the final step in the EB-5 Immigrant Investor Program. Investors and their attorneys file this petition with USCIS and provide evidence that the investor has successfully fulfilled all of the program’s requirements, particularly that investor funds resulted in the creation of at least ten jobs. Upon approval of the petition, investors and their family members receive permanent Green Cards.
