What is EB-5 Investor Visa?

The EB-5 Investor program is a popular way for foreign nationals to promptly receive their green cards with high rate of success.  For the minimum investment value of $500,000 plus project fees, the investor and the investor’s immediate family, including their spouse and unmarried children under the age of 21, can immigrate to the United States on a two-year conditional green card with the approval of their I-526 petition.  The conditional green card converts to permanent residency when the requisite conditions of job-creation are met two years later with the approval of their I-829 petition.  Once unconditional permanent residency is granted, merely five (5) more years of living in the United States will confer eligibility for U.S. citizenship.

What Do I Invest In?

There are two general types of investments that qualify for the EB-5 Investor Visa:

1) Direct Investment into a new business operated by the investor, also known as a A) New Commercial Enterprise, or B) an existing Troubled Business, and creating or saving ten (10), full-time jobs (35 hours a week) for two years, evidenced by employees’ W-2 and I-9.  Or,

2) Investment into a USCIS-approved Regional Center, where the investor invests capital into a large scale commercial project with minimal involvement with the actual business of job creation.  The Regional Center manages the job creating enterprise and certifies that the investor’s capital has met the USCIS requirement of either directly or indirectly creating ten (10) full-time jobs for two years.

How to Succeed with EB-5?  

The three essential factors for success in an EB-5 application are:

I.  Proving  the Source of Your Funds:  The source of the investor’s funds must be well-documented.  The investor must prove that the funds were obtained through lawful means.

II. Proving Your Investment Created the Jobs:   Comprehensive and credible business plans and economic analysis projections must show that your funds is at first, likely to, and in two years later, did create full-time employment for ten (10) United States citizens, green card holders, or other immigrants lawfully authorized for employment in the United States (excluding the immigrant investor and his immediate family members).

III. Proving your Whole Investment Remained “At-Risk”:   For the capital to be “at risk” there must be a risk of loss and a chance for gain.   If the immigrant investor is guaranteed the return of a portion of his or her investment, or is guaranteed a rate of return or redemption on a portion of his or her investment, then that portion of the capital is not at risk and the EB-5 application will fail.

History

The purpose of the EB-5 Program is to promote the immigration of people who can help  stimulate the economy and create jobs for U.S. workers through their investment of capital into the American market.  The Immigration Act of 1990 (“IMMACT 90”) created the Immigrant Investor Program as the fifth preference category for employment-based immigration.  The EB-5 Immigrant Investor Program is available to those immigrants who have invested at least $1 million in a new commercial enterprise employing at least 10 full-time U.S. workers.  Yet, most EB-5 participants invest in those projects with lower cost of entry, which are located in “targeted employment areas” (TEAs).  Those who invest in a TEA project are only required to invest a minimum amount of $500,000.  In addition, immigrant investors can invest $500,000 in a qualified and approved Regional Center, also located in a TEA.  In either case, the investor must show that they created at least 10 direct or indirect jobs within two years of an approved I-526 application.

Approximately 10,000 visa numbers are allocated annually to EB-5 investors.  USCIS reserves 3,000 EB-5 visas for aliens who invest in TEAs and 3,000 for aliens who invest in commercial enterprises affiliated with Regional Centers.  Until recently, participation in the investor program has been far below capacity.  Between 2005 and 2008, USCIS only approved 179-640 I-526 applications.

When the EB-5 visa was originally created, it did not include the Immigrant Investor Regional Center Program, a USCIS five-year immigrant investor pilot program created in 1993 in an effort to encourage more investors to apply for EB-5 permanent residency.  The purpose of the Immigrant Investor Pilot Program is to attract more foreign investors to fund businesses and projects in specific “regional centers” that would otherwise find it difficult to attract domestic investment based on current geographical market trends. By bringing such investment into areas of economic hardship and high unemployment, Congress hopes to stimulate job expansion, improve regional productivity, invest in infrastructure, and promote the growth of innovative new businesses. Congress has made the Immigrant Investor Pilot program particularly attractive to foreign investors by lowering the investment minimum to $500,000 (for a business in a designated regional center or TEA) as opposed to $1,000,000, and by allowing a less restrictive job creation requirement based upon the creation of “indirect” and “direct” jobs and not requiring the day to day management of the business. The Immigrant Investor Pilot Program has been extended several times, and was recently extended through September 30, 2015.

With substantial improvements to the EB-5 category each successive year, the number of EB-5 applicants has skyrocketed.  For instance, in 2008, USCIS approved 642 EB-5 petitions. By 2012, this number jumped to 3,677 EB-5 approved petitions; 80% of these came directly from China.  Part of this increase of Chinese EB-5 immigrant investors was due to the historical economic growth of China and the emergence of independently wealthy Chinese individuals.  Additionally, Canada in 2014 discontinued its relatively low-risk immigrant investors program, which rerouted interested investors to the American EB-5 program. In 2013, 8567 visas were issued through the EB-5 category.  In 2014, a retrogression of the EB-5 visas has begun, which means that unless Congress implements significant and timely increase of visas under the EB-5 category, visas will no longer be immediately available.

Approval for the EB-5 I-526 applications is very high.  In 2012, USCIS received 2,771 submissions of Form I-526. Of these, 85% of applications were approved.  Likewise, in 2013, USCIS received 6,346 Form I-526 petitions. Of these, 82.6% were approved.  Most denials occurred because investors failed to demonstrate their investment funds were lawfully acquired.  Please see the EB-5 Immigrant Investor Program Memo issued by the U.S. Department of Homeland Security on May 30, 2013, for more details.

The EB-5 visa is a solid and expedient immigration solution for those who have the lawful financial resources to qualify and can withstand potential losses in high risk investments. With the current economic slump, USCIS has relaxed its requirements for the EB-5 program as a means to bring in more foreign investment.

On August 24, 2014, the U.S. Department of the State, Chief of Immigrant Visa Control & Reporting, Charles Oppenheim announced that for the first time since the inception of the EB-5 Program, that the 10,000 cap per year was exceeded for China.  This portents longer wait times for the approval of new EB-5 I-526 applications to two years or more for Chinese investors, as well as a need for even more stringent and diligent review of investment projects by a knowledgeable EB-5 attorney to determine whether the projects can successfully deliver the required job-certifications even with the anticipated delays and potential fluctuations in project financing and TEA designations.

Authorities:

Section 203(b)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(5)
8 C.F.R. §204.6(a)-(d)
AFM 22.4(a)(2)(B)
AFM 22.4(c)(4)(D)(ii)

Matter of Izummi, 22 I&N Dec. at 180-188.

Matter of Ho, 22 I&N Dec. at 213.

http://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/Upcoming%20National%20Engagement%20Pages/2012%20Events/May%202012/EB-5Stats.pdf

http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Employment-based/I-526Qtr4-2013.pdf