EB-5 Immigrant Investor Program

EB-5 is the Immigrant Investor Program under which entrepreneurs and their dependents (spouse and children below 21 years of age) are eligible to apply for a green card to the United States. EB-5 is also called as the Employment-based Fifth Preference Category. Investors have the liberty to launch an individual business or invest in a pool of investors through the Regional Centers.

The EB-5 Immigrant Investor Program was created in the year 1990 to increase the capital investment in the U.S. by foreign investors and to increase the number of jobs in order to boost the economy of the country.

EB-5 Visa Classification

All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:

  • Established after Nov. 29, 1990, or
  • Established on or before Nov. 29, 1990, that is:
    • Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
    • Expanded through the investment so that at least a 40-percent increase in the net worth or number of employees occurs

The definition of a commercial enterprise is any activity which is for-profit and classifies as a lawful business including, but not limited to:

  • A sole proprietorship
  • Partnership (whether limited or general)
  • Holding company
  • Joint venture
  • Corporation
  • Business trust, or
  • Other entity, which may be publicly or privately owned.

NOTE: The definition is strictly limited to commercial activities only which are aimed at making profit and does not include owning or operating a personal residence.

Job Creation Requirements

There is a certain specified amount of capital that the investor must invest in his new commercial enterprise which in turn will create full-time jobs/positions for at least 10 qualifying employees.

  • If the new commercial enterprise is not located within the regional center, the full-time jobs/positions must be directly created by the enterprise for them to be counted.
  • If the new commercial enterprise is located within the regional center, the full-time jobs/positions may be created by the enterprise in following two ways:
    • Direct jobs where in there will be an employer –employee relationship between the new commercial enterprise and the employee.
    • Indirect jobs where in the jobs/positions will be created outside the new commercial enterprise.

In the case of a troubled business, the EB-5 investor may rely on job maintenance.

  • The investor must show that the number of existing employees is being, or will be, maintained at no less than the pre-investment level for a period of at least 2 years.

How can investors based in the U.S. apply?

Investors based outside the U.S. can apply for EB-5 Investment-based green card. For Foreign nationals who are in the U.S. and wish to apply for a green card under the EB-5 category can do so by applying for “ADJUSTMENT OF STATUS”. First the form I-526, Immigrant petition by Alien Entrepreneur is to be filed by the investor. Once done, he/she needs to file form I-485, Application to register Permanent Residence or Adjust Status. They can do this without having to leave the country.

How can investors based outside the U.S. apply?

Investors based outside the U.S. must file form I-526, which is Immigrant Petition by Alien Entrepreneur. Once the I-526 has been approved, the investor must file the form DS-260, Application for Immigrant Visa and Alien Registration.

Upon the approval of a Form I-485 application or upon admission into the United States with an EB-5 immigrant visa, the EB-5 investor and derivative family members will be granted conditional permanent residence for a 2-year period.

The investor then has to file I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, within 90 days period immediately.

Capital Investment Requirements

Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.

The Investor must be able to establish that he/she is the legal owner of the capital. For General classification, the qualifying investments in the United States are a minimum of $1 million. In rural or high unemployment areas of the United States, the minimum qualifying investment is $500,000.

Source of Information: www.uscis.gov