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EB 5 Visa Requirements 2024: A Comprehensive Guide to Eligibility and Requirements for U.S. Investment-Based Residency in USA

Navigate the complexities of requirements for EB 5 Visa Eligibility. Explore comprehensive requirements to make informed investment decisions and secure your path to a new life.

last updated Saturday, April 27, 2024
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John Burson     Subscribe
EB 5 Visa Requirements. A Comprehensive Guide to Eligibility

CONTENTS

Key Takeaways:

  • $1,050,000 capital investment, or $800,000 in a rural area, high unemployment area, or an infrastructure project.
  • The investment must be made in a for-profit U.S. commercial entity.
  • The investment must create 10 full-time U.S. jobs for two years.

The EB-5 Visa Program, established by the USCIS, has garnered attention for its unique approach to facilitating foreign investment while concurrently offering a route to permanent residency. This program, also called the Immigrant Investor Program, was created to stimulate the U.S. economy by attracting capital from qualified foreign investors.

  • The EB-5 Visa Program is a noteworthy opportunity for foreign investors seeking permanent residency in the United States through strategic investment.
  • Aspiring participants are advised to thoroughly understand the program's intricacies, adhere to stipulated guidelines, and seek professional guidance to navigate the complexities inherent in the EB-5 application process.

This guide aims to provide a comprehensive overview of the EB-5 visa requirements for 2024, serving as a valuable resource for individuals embarking on this unique pathway to U.S. residency.

EB5 Investment Amount Requirement

Applicants for the EB-5 visa are required to make a substantial investment, ranging in amount from $500,000 to $1.05 million.

This EB-5 investment can be in cash, equipment, property, or other assets equivalent to U.S. dollars.

Type of Investment Minimum EB5 Program Investment Amount
Targeted Employment Area $800,00
Non-Targeted Employment Area $1,050,00

Learn more about EB 5 Investment Amount

What type of Funds Eligible for Investment?

The United States Citizenship and Immigration Services (USCIS) conducts rigorous scrutiny regarding the origins of funds or capital used for investment. Capital obtained through illegal means is unequivocally disqualified.

Additionally, the USCIS mandates comprehensive documentation to trace and verify the lawful acquisition of investment funds.

Forms of Investment

Investments eligible for the EB-5 program encompass various forms, such as:

  • inventory,
  • equipment,
  • tangible property,
  • cash,
  • or cash equivalents valued in U.S. dollars.

However, funds derived from a loan to the business or as a debt of the business are not recognized as valid investments. 

Additionally, returns from property rentals, limited partnerships, or earnings from other enterprises where the investor does not play an active role in management are also not considered legitimate investments for this program. Notably, the investor must fully allocate the specified investment amount before the conclusion of the two-year conditional period.

Passive income streams, like property rent or returns from limited partnerships where the investor is not actively involved in management, do not qualify as investments under the EB-5 criteria.

Investment Funds From a Loan

Certain vital documents are required when sourcing investment funds from a loan for the EB-5 visa program.

These include:

  1. Documents that evidence the mutual agreement between the lender and the investor to lead the eb5 green card requirements.
  2. Proof of the actual transfer of loan funds from the lender to the investor.
  3. The lender’s income tax returns could be from their business or personal income.
  4. The lender's business license and registration documents.

Furthermore, it's important to note that only loans secured by the investor’s assets are considered eligible investment funds for the EB-5 program.

The Ownership Evidence for Investment Funds

A comprehensive set of financial documents is essential for those applying for the EB-5 visa program.

This includes:

  • Banking records
    Two or more years of banking records provide a clear picture of financial transactions.
  • Tax Returns
    Additionally, applicants must present five years of personal income tax returns, giving insight into their economic history and consistency.
  • Income Statements
    Compensation statements are also crucial, as they indicate earnings and financial stability.
  • Certificate of Employment
    A certificate of employment further corroborates an applicant's professional and financial status.
  • Proof of Businesses
    Business owners must submit five years of business income tax records alongside proof of business ownership. This proof can be in the form of a business license and registration, showcasing the legitimacy of the business. Legal proof of share ownership or a certificate of incorporation is also necessary, as it establishes the applicant's stake in the business.

Investment Funds from a Gift Evidence Required

In the EB-5 visa program context, when funds are sourced from gifts or inheritances, specific documentation is required to ensure compliance with United States Citizenship and Immigration Services (USCIS) regulations. 

Firstly, there should be concrete proof of fund transfer from the donor to the investor, clearly detailing the transaction. Additionally, thorough documentation must outline the circumstances and reasons for the gift, including any relevant details about the gift's nature and intent.

It's also essential to have a record of any gift tax returns, which helps establish the legality and financial implications of the gift. 
Documentation evidencing the donor's financial capability to give the gift must demonstrate that the funds were legitimately available to the donor.

Documentation should be provided for further validation to show the relationship between the investor and the donor, establishing the connection and the basis for the gift or inheritance.

In inheritance cases, a death certificate is required to confirm the issuance of the inheritance. Moreover, proof that the investor has paid any applicable taxes on the inheritance is crucial to validate the lawful acquisition of these funds.

A statement outlining the relationship is needed when the familial relationship between the investor and the descendant is not well-documented.

This statement should include details about the inheritance and the amount of money left to the investor to understand the inheritance's nature and legitimacy.

Sale of a Business Evidences Required

For the EB-5 visa application, comprehensive and detailed documentation is crucial when investment funds are derived from a business sale. This includes the closing statement of the sale, which provides an official record of the transaction.

Deeds and bank accounts, along with their corresponding statements, are necessary to trace the flow of funds. Additionally, there should be a clear documentation trail from the closing transaction to the investor, showcasing the transfer and receipt of funds.

Registration documents and proof of business ownership, both before and following the sale, are essential to establish the legitimacy of the transaction and the change in ownership. 

Correspondence related to the sale, including discussions on price and insights from the buyer’s accounting firm, adds further credibility and detail to the transaction.

Financial statements prepared by a certified financial professional, assessing the pre-sale worth of the business, offer an objective valuation that supports the transaction's legitimacy. 

Documentation elucidating the relationship between the buyer and seller and their understanding of all terms and conditions of the sale is critical in demonstrating a fair and informed transaction.

Finally, a comprehensive account of all fees incurred during the settlement process is necessary. This provides a complete financial picture of the transaction, ensuring that all aspects of the sale are transparent and accounted for in the EB-5 visa application process.

Sale of Real Estate Evidence Requirements 

For the EB-5 visa application, when the investment capital comes from the sale of real estate or a business, specific documents are required to substantiate the transaction:

  1. First, a document must verify that the investor has received access to the funds from the buyer, confirming the successful transfer of capital.
  2. Additionally, evidence showing that the investor has fully paid all real estate taxes associated with the sale is essential to demonstrate compliance with tax obligations.
  3. It's also necessary to prove that the business or real estate title has been officially transferred to the buyer. This serves as a legal acknowledgment of the change in ownership.
  4. Furthermore, the investor should present income tax returns from the past five years, reflecting the revenue generated from the sale. These returns are crucial for establishing the legitimacy of the funds and their source, thereby meeting the requirements of the EB-5 visa program.

Sale of Stock Evidence Requirements

For EB-5 visa applicants whose investment funds originate from the sale of shares, several key documents are required to establish the validity and legality of the transaction:

  1. A certificate of incorporation and all relevant legal business registration documents must be presented. These papers confirm the legitimacy of the business whose shares were sold.
  2. Documentation of the agreement detailing the sale of the shares is necessary. This includes the terms of sale, the parties involved, and the conditions under which the shares were sold.
  3. Provide proof of stock sale proceeds. The stock has been transferred to the investor's account, typically done through documentation from the brokerage firm handling the transaction.
  4. Providing proof of payment of all taxes related to the stock sale is another critical requirement. This documentation ensures compliance with tax laws and the lawful acquisition of funds.
  5. Lastly, records demonstrating the purchase and subsequent sale of the shares are necessary. These documents should clearly show the transaction history of the shares, confirming their sale and validating the source of the investment funds for the EB-5 visa.

What type of EB-5 business entities are eligible?

A "new commercial enterprise" (NEC) refers to any business founded after November 29, 1990.

Investors can channel their funds into an existing business, provided they can substantially enhance its net worth or employee count by at least 40%. 

Following this significant investment and subsequent reorganization, the business can qualify as a new commercial enterprise under EB-5 criteria's eligibility requirements.

Additionally, investors can invest in a regional center, which can assist in managing the business aspects related to their investment.

"New Enterprise" requirement

A business qualifies as a "new enterprise" for the EB-5 visa program if established on or after November 29, 1990. This category also includes businesses that have undergone significant reorganization.

Moreover, for a pre-existing business to be considered a new enterprise under this program, it must demonstrate an increase in its net worth or employee base by at least 40%.

Commercial Enterprise

A commercial enterprise is made up of any profitable, lawful act that includes the following:

  • Sole proprietorship
  • Limited Partnership
  • General Partnership  
  • Holding company
  • Joint venture
  • Corporation
  • Business trust
  • Or any publicly or privately owned entity

Eligibility of a Commercial Enterprise

As it is not intended for profit-making, personal residence ownership does not qualify as a commercial enterprise under the EB-5 visa program. However, a subsidiary created by a holding company specifically for profitable business activities is considered eligible.

Trouble Business: A business is classified as "troubled" if it has been in operation for at least two years and has experienced a net loss of at least 20 percent of its value within the two years before its acquisition.

The Importance of Choosing an Enterprise Structure Wisely

Choosing a suitable business model is crucial for effective management and optimizing tax benefits. EB-5 applicants must be involved in business operations through daily management activities or strategic planning and policymaking processes.

Types of Commercial Enterprises

Developing an enterprise following the EB5 green card requirements through a corporation is widely favored. A corporation functions as an independent legal entity, distinct from its owners or shareholders, and possesses the same legal rights. 

It can own, purchase, and sell property under the corporation's name as a legal entity. The continuity of the corporation is maintained irrespective of the death of any officer or shareholder.

However, one notable aspect of some corporations is the potential for double taxation, where profits are taxed at the corporate level and then again at the personal level for the shareholders.

Alternatively, a Limited Liability Company (LLC) merges the advantages of both a corporation and a partnership. LLCs offer flexibility in choosing the method of taxation, allowing them to be taxed either as a corporation or a partnership. 

In a limited partnership, the liability of partners is typically limited to their amount of investment in the company.

Criteria for Investing in a New Business

For the EB-5 investor visa, the following criteria apply.

  • Minimum Investment Amounts
    Investors must commit at least $1,050,000 to fulfill EB-5 visa requirements in the US. However, this amount is reduced to $800,000 if the investment is in a designated Targeted Employment Area (TEA). A TEA is defined as either a rural area or an area experiencing high unemployment at a rate of at least 150% of the national average.
  • Economic Benefit
    The investment must demonstrably benefit the U.S. economy, typically by providing goods or services to domestic markets.
  • Job Creation
    The investment must create at least ten full-time jobs for U.S. workers. This includes U.S. citizens, Green Card holders, and others authorized to work in the U.S. Importantly, the EB-5 petitioner and their immediate family members cannot be counted towards this job creation requirement.
  • Types of Capital Investment
    The investment can be in various forms, not limited to cash. It can include cash equivalents, debt secured by the investor's assets (for which the investor is personally liable), equipment, inventory, and other tangible property.
  • Investor Involvement
    The EB-5 petitioner may be directly involved in the business in a management role or participate as a limited partner, allowing for flexibility in their day-to-day involvement.

Criteria for Investing in a Failing Business

To qualify under specific EB-5 visa criteria, the following conditions must be met:

  • Duration of Business Operation
    The business should have been operational for at least two years.
  • Financial Loss Requirement
    The business must have incurred a net loss during the most recent 12 to 24 months before filing the petition.
  • Extent of Loss
    This loss must represent at least 20% of the business’s net worth before the loss, as indicated on the balance sheet.
  • Job Preservation
    The investment should ensure the preservation of at least the same number of jobs as existed before the investment for a minimum duration of two years.
  • Investment Amounts
    The investor is required to commit at least $1,050,000. However, this amount reduces to $800,000 if the investment is made in a "Targeted Employment Area" (TEA).
  • TEA Definition
    A TEA can be either a rural area or an area experiencing high unemployment at a rate of at least 150% of the national average.
  • Investor’s Role
    The petitioner may choose to be actively involved in the day-to-day management of the business or may participate as a limited partner, allowing some flexibility in their involvement level.

Eligibility of an Investor

Under the EB-5 visa program, corporations or other business entities cannot act as investors until they meet the EB5 green card requirements. However, the United States Citizenship and Immigration Services (USCIS) does allow investors to establish a New Commercial Enterprise (NCE) through the EB-5 program.

  • This is contingent on each investor group member committing the minimum investment amount.
  • Additionally, every investor in the group must contribute to creating at least 10 (ten) full-time jobs for U.S. workers, maintaining these positions for a specified duration.

What age is eligible to apply for an EB5 Visa?

The EB-5 Visa Program does not impose any age restrictions on applicants. The only age-related consideration arises in contract signing; individuals under 18 are not legally permitted to sign binding contracts. In such cases, a legal guardian must co-sign on behalf of the minor applicant.

However, age is a factor in including children in a parent's application. For a child to be eligible as a dependent on their parent's application, they must be under 21.

What are the educational qualifications to get an EB-5 visa?

To obtain an EB5 visa, no educational requirements need to be met.

EB 5 Direct, Non-Regional Center Investment Requirements

In the case of direct EB-5 investments, active involvement in the management and operations of the business is required. The criteria for such a non-regional center EB-5 investment include:

  1. Type of Business
    The investment should be in a new commercial enterprise. This can be a business established after November 29, 1990, or a pre-existing business from before this date that has either undergone significant restructuring resulting in a new enterprise or experienced a 40% increase in net worth or employee count.
  2. Investment Amounts
    A minimum investment of $800,000 is needed if the enterprise is located in a Targeted Employment Area (TEA). For businesses outside a TEA, the minimum investment is $1.05 million.
  3. Job Creation Requirement
    The investment must create at least 10 full-time jobs for qualified American workers.
  4. Investor's Role
    The investor is expected to play an active role in the corporation or partnership involved in the EB5 program.
  5. Source of Funds
    The investment capital must be sourced from lawful means.

Other options for adjusting the status.

The other options include but are not limited to adjusting the status of a Student Visa, Work Visa, and Travel Visa.

  • Adjustment of Status with Student Visa
    If you're an F-1 student visa holder looking to stay in the United States post-graduation, the EB-5 program offers a pathway to acquiring a green card. This program requires a minimum investment of $900,000 in a U.S. commercial enterprise and necessitates the creation of at least ten full-time jobs for American workers.

    It's important to note that the availability of EB-5 visas varies, with current limitations for countries like China and India, except in the cases of Rural, High Unemployment, and Infrastructure projects.

    Investing in a Targeted Employment Area (TEA) may provide a quicker route through the EB-5 application process. TEAs, identified as either high-unemployment areas or rural regions, offer specific benefits and incentives within the EB-5 program.

    For F-1 visa holders, an additional advantage is the potential to file a concurrent Adjustment of Status application along with their EB-5 petition, allowing them to legally remain in the U.S. while their application is being processed.

    With an EB-5 green card, you can work in any capacity in the U.S., including starting and running your own business.

  • Adjustment of Status with Work and Travel Visa
    Consulting with an experienced immigration attorney is vital to navigate this process effectively. It's crucial to understand that the option to file an Adjustment of Status alongside the EB-5 application is typically available only to holders of dual intent visas like H-1Bs.

    For those on H-1B, F-1, or B-1/B-2 visas seeking U.S. permanent residency, transitioning to an EB-5 visa can be a viable strategy. However, expert legal advice is essential to determine the most appropriate approach for your circumstances.

    Remember that combining the Adjustment of Status package with the I-526 EB-5 petition is primarily an option for those on H-1B visas due to their dual intent nature.

FAQ About Eb5 Visa Eligibility

Is obtaining an EB-5 visa easy?

Ensuring all documents submitted for the EB5 visa application are accurate and complete is crucial. Inadequate or incorrect documentation can result in application rejections, repeated submissions, and extended processing times. Non-compliance with USCIS guidelines could significantly delay or even result in denying the EB5 visa.

What are the advantages and disadvantages of an EB-5 Green Card?

Short Path to Permanent Green Card

Initially, EB-5 green cards are issued on a conditional basis with a validity of two years. If the investor establishes a successful business that meets the minimum employment requirements, they can become eligible for a permanent green card. 

However, it's important to note that the United States Citizenship and Immigration Services (USCIS) has a strict vetting process for these applications, with many being declined due to stringent eligibility criteria and past fraud and misuse.

Applicants don't need specific business training to qualify for this green card; the primary requirement is sufficient funds for investment in a viable business. Investors can choose any business nationwide but must sustain their investment until they secure an unconditional green card.

The holder can work for any company once an unconditional green card is obtained. However, the primary purpose of this visa isn't for employment or travel; recipients are expected to reside in the United States.

Family members are included in the process.

Family members, including spouses and unmarried children under 21, can also obtain green cards through this program. But, these green cards can be revoked, and the holder can face deportation for reasons such as misuse, committing a felony, failing to spend the required time in the U.S., or not informing the USCIS of address changes.

After maintaining their green card status and residing in the United States for five consecutive years, investors may be eligible to apply for American citizenship.

Is an EB-5 visa worth it?

Yes, provided that you fulfill all documentation requirements and adhere to USCIS regulations, you can obtain conditional permanent residency status through the EB5 program. This investment program offers various options, enabling immigrants to select the one that best aligns with their status or needs.

How much investment is required for an EB5 visa?

The minimum investment required for an EB-5 visa is $800,000 if it's in a Targeted Employment Area (TEA). The amount increases to $1 million for investments outside of a TEA.

How do you invest in an EB5 Visa?

For an EB-5 Visa investment, the applicant must initially select a project that aligns with the program's criteria, especially if they are considering options like expedited approval and rural premium processing for faster processing times.

Following this, the investor is required to execute a subscription agreement. This agreement formally requests to join a partnership or limited liability company for investment. Once this request is accepted by the general partner or manager of the entity, the investor's funds are transferred to an escrow account, which an appointed escrow agent oversees.

Is there an EB-5 Visa Annual Limit?

According to the requirements for the EB-5 visa, The EB-5 visa program is subject to an annual limit of 10,000 visas, with a maximum of 700 visas allocated per country each year.

How long does it take to process the EB5 Visa?

Typically, the processing time for an I-526 petition under the EB-5 Visa program ranges from 24 to 36 months. These timeframes are subject to change and vary based on USCIS’s current workload, including the number of pending applications and the total applications received annually.

How long can I stay in the US with an EB-5 Visa?

Upon receiving an EB-5 visa, you must enter the United States within six months before the visa's expiry. Upon your arrival, you will be a conditional permanent resident. The EB-5 visa process grants you the ability to reside in the U.S. for two years under a conditional Green Card.

Can I get US citizenship with an EB-5 visa?

Yes, acquiring U.S. citizenship is possible through the EB-5 visa pathway. To progress towards this, you must remove these conditions within 90 days before the two-year conditional EB-5 visa expires, enabling you to obtain a 10-year investor visa. Then, provided you fulfill all the necessary criteria, you can apply for U.S. citizenship within 90 days before reaching the five-year mark from the initial issuance date of your EB-5 visa.

What countries can apply for an EB5 visa?

The EB-5 visa program is accessible to applicants from all countries. This includes nations such as Canada, Taiwan, China, South Korea, Mexico, Brazil, India, Vietnam, Great Britain, the Philippines, South Africa, and Nigeria, all eligible to apply for the EB-5 visa.

What are the differences between the E-2 and EB-5 Visa?

The critical distinctions between the E-2 and EB-5 visas are as follows:

  • Visa Type
    The E-2 Visa is a nonimmigrant visa offering temporary residency in the U.S. and does not lead to permanent residency. On the other hand, the EB-5 Visa is an immigrant visa granting permanent resident status in the U.S.
  • Nationality Requirements
    The E-2 visa excludes nationals from countries with an E-2 treaty with the United States. In contrast, the EB-5 visa imposes no such country-specific restrictions, allowing citizens from any nation to apply.
  • Investment Requirements
    There is no minimum investment amount for the E-2 visa. However, the EB-5 visa necessitates a substantial minimum investment, which is a core requirement for EB-5 visa eligibility and investment opportunities.

Which EB5 project is good to invest in?

Real estate projects stand as a top choice for EB-5 investments. Since the EB-5 program's initiation, the real estate sector has emerged as a highly successful and preferred arena for numerous investors. 

Since investing in a project is a critical requirement for the EB5 visa, selecting a profitable project, such as one in real estate, is paramount.

What are EB-5 Residency Requirements?

The EB-5 Visa initially provides a conditional green card, valid for two years, to the foreign investor and their dependents.

To meet the EB5 Visa elements, the investor and their dependents must maintain continuous residence in the United States for their conditional green card.

While permitted to travel outside the U.S., they must return within a year to fulfill the EB5 green card residency obligations. To transition to lawful permanent resident status, a petition to remove the conditions on permanent residence must be submitted three months before the expiration of the conditional green card.

Why paperfree.com?

For those looking for a streamlined and efficient way to manage these documentation requirements, PaperFree.com offers a solution. This platform specializes in assisting the EB-5 visa program, simplifying the process of gathering and organizing these critical financial documents. 

For more detailed information and guidance on each of these steps, resources and assistance are available at paperfree.com/en/eb5

With PaperFree.com, applicants can navigate the complexities of the Eb 5 Visa Requirements 2024 with greater ease and assurance, making the journey toward U.S. residency smoother and more manageable.

 
 
 

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