An easy and complete guide to getting your EB-5 visa

The EB-5 visa allows you to use your investment capital to gain permanent residency in the United States for you and your immediate family. Read about all the details provided by Paperfree.com.

last updated Friday, December 8, 2023
#EB-5 visa #What is EB5 visa

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John Burson

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CONTENTS

What is an EB-5 visa?

The employment-based, 5th preference (EB-5) investor visa is an immigration designation that grants immigrant investors permanent resident status. Once approved, applicants can use this visa to receive a permanent resident green card for themselves, their spouse, and unmarried children below the age of 21.

U.S. Citizenship and Immigration Services’ (USCIS’) Immigrant Program Office (IPO) has administered the EB-5 Visa program since 1990. From its inception, this immigrant investor program has been part of the U.S. government’s effort to boost the economy by increasing employment through foreign capital investment.

How long does it take to get an EB-5 Visa?

Although processing times vary, the USCIS processes 80% of the initial petitions (Form I-526) within 55.5 months [1]. After your initial petition gets approval, you must check periodically with the office for green card availability. 

If you live abroad, the wait for green card approval through consular processing generally takes 4 to 6 months [2]. If you live in the U.S., it could take up to 45 months to get your green card decision [3]. You can get form-specific processing updates through the USCIS online tool [1]. In addition, the Visa Bulletin will indicate when your green card is available [4].

How much are the EB-5 Visa processing costs?

Depending on your filing location, an EB-5 investor visa costs between $4,000 and $4,900. The initial Form I-526 (Immigration Petition by Alien Entrepreneurs) requires a $3,675 filing fee.  The consular processing fee will be $345 extra if you are an out-of-country applicant. Your total would be $4020 before the cost of a medical exam. 

If you apply within the U.S., you must pay $1140 to file Form I-485 ( the Application to Register Permanent Residence or Adjust Status). Your total would be $4,900 after you add the biometrics service fee. 

What are the EB 5 visa eligibility qualifications?

You must satisfy these two basic requirements to qualify for an EB 5 visa.

1. The EB5 visa program requires you to invest in a U.S. Business while abiding by the minimum requirements of 8 CFR § 204.6. [5]
2. You must intend to create or maintain a minimum of 10 full-time jobs reserved for U.S. workers. 

What are the conditions concerning the capital investment?

Your capital investments must go to a company established after November 29, 1990. If you intend to invest in a business that started before or on that date, it must be a new company due to a buyout or a completed restructuring. Alternatively, the business qualifies if your investment results in a 40% expansion of overall worth or number of employees. In addition, the company must be an ongoing and for-profit commercial enterprise that falls into one of these business classifications.

• Sole proprietorship
• Corporation
• Joint Venture
• Business Trust
• Holding company
• Partnership
• Other publicly or privately owned entities

You can present the capital investment as cash, plant equipment, property, inventory, and other tangible assets for which you hold sole ownership. As of 3/15/2022, the minimum investment amount is $1,050,000 [6], with a TEA investment of $800,000, including infrastructure projects.

What are the EB-5 job creation requirements?

As stated earlier, the EB-5 job creation rules require you to invest the mandatory amount of capital in a new business that will establish full-time jobs for ten qualifying employees. However, there are stipulations for these three conditions.

1. Non-Regional Center commercial enterprises. For a new business located in a non-regional center, your capital investment must directly create full-time positions. This means the company must be the principal employer of the qualifying employees. The rule also applies to any of its solely-owned subsidiaries.
2. Regional Center commercial enterprises. A new business within a regional center can be a direct or indirect creator of full-time positions, giving you flexibility as a regional center investor. For this reason, up to 90% of the job creation requirement can include indirect jobs, such as positions created by contractors. However, the indirect employment must stem from the new commercial enterprise. 
3. Troubled businesses. If you intend to invest in a troubled business, you can qualify based on job maintenance instead of job creation. This stipulation requires that your capital investment maintain the existing number of employees for at least two years.  The USCIS considers a troubled business a commercial enterprise with at least two years of existence and a net loss dating 12 or 24 months before the priority date on Form I-526. The loss must total at least 20% of the troubled enterprise’s net worth before the loss. 

What’s a qualified employee?

For EB-5 visa purposes, a qualified employee must be a United States citizen, a permanent resident, or an immigrant with U.S. work authorization. This classification includes workers with conditional residency, asylee status, refugee status, and residency in the U.S. due to deportation. 
Those not classified as qualified employees are immigrant investors, their spouses, their offspring, or any noncitizen with a nonimmigrant status. This restriction also includes anyone not authorized to work in the U.S.

What qualifies as full-time employment?

The EB-5 visa definition of full-time employment is the employment of a qualified employee by the new business for a minimum of 35 working hours per week. Full-time employment in the regional center program means employment of an eligible employee in an indirectly created position requiring a minimum of 35 working hours per week. 

Seasonal, transient, temporary, and intermittent jobs do not qualify as permanent full-time jobs. The employment opportunity must last at least two years.

How to apply for an EB-5 visa

The first step to getting an EB-5 visa is:

1. Submitting Form I-526 [7] with the following proof.
   • You have invested in a for-profit commercial enterprise that meets the qualifications mentioned. 
   • The area is a Target Employment Area (TEA) or other appropriate site.
   • The new business venture will add ten new employees
   • If you invest in a troubled business, you must ensure the number of employees will not drop below pre-investment levels.
2. Submitting the green card application. After you get Form I-526 approved, you can start the green card application process, which varies according to your circumstances. If you are applying from abroad, you must go through consular processing. This step requires completing Form DS-260 (Application for Immigrant Visa and Alien Registration) and getting a medical exam [8]. Then, you must take the necessary documents to a scheduled interview at the U.S. Embassy or consulate.  If you apply in the U.S., you must apply through the Adjustment of Status process. The step requires completing Form I-485 and attending an interview in most cases [9]. Regardless of the process, your successful completion of the application process will result in you receiving a conditional green card with two years of validation.
3. The last step is removing conditions. After the two years pass, you must apply to clear the conditions from your green card by completing Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) [10]. You must submit this form within 90 days of the green card expiration date. 

Most importantly, this application process requires you to present all documents regarding the status of the commercial enterprise. The documents must verify the number of employees, the location of the business, and the total amount of capital invested in the industry. If you successfully get the conditions removed, the USCIS will grant you a legal permanent residence or an EB-5 visa. As such, you will only need to renew your green card every ten years.

The Infographic for the process of obtaining an EB5 Visa

Inside of the U.S.

source: 3gfund.com

Outside of the U.S.

source: 3gfund.com

Appendix 1. The Foundation of EB 5 Visa, Employment-Based Visas.

The EB-5 visa, or the Employment-Based Visa, offers a path to permanent residency in the United States for noncitizens, their spouses, and children who possess the necessary job skills, education, and/or work experience and meet the eligibility requirements. 

The program grants approximately 140,000 immigrant visas annually, and it offers five employment-based immigrant visa preferences (categories) that applicants may apply for. 

To employ individuals in the EB-5 visa program or nonimmigrant temporary workers who require immigration to the United States based on their job skills, U.S. employers must obtain Labor certification. The certification contains attestations by the employer, including the number of U.S. workers available to undertake the employment sought by the applicant and the potential impact of the applicant's work on the wages and working conditions of the U.S. workers in similar positions.

The Secretary of Labor is responsible for issuing labor certification.

The five employment-based immigrant visa preferences (categories) are listed below.

Permanent Worker Visas

Visa	Pref	Description	Labor Cert. Required?
EB - 1	First	This visa category is reserved for individuals with exceptional abilities in sciences, arts, education, business, or athletics, outstanding professors or researchers; and multinational executives or managers.	No
EB - 2	Second	This preference is reserved for individuals with advanced degrees or exceptional arts, sciences, or business abilities.	Yes
EB - 3	Third	This preference is reserved for professionals, skilled workers, and other laborers with specialized knowledge or training.	Yes
EB - 4	Fourth	This preference is reserved for "special immigrants," which includes certain religious workers, employees of U.S. foreign service posts, retired employees of international organizations, noncitizen minors who are wards of courts in the United States, and other classes of noncitizens.	No
EB - 5	Fifth	This preference is exclusively reserved for business investors who invest a minimum of $1.8 million or $900,000 (if the investment is made in a targeted employment area) in a novel commercial enterprise. The enterprise must employ at least ten full-time U.S. workers for the investment to be eligible for consideration. The EB-5 Immigrant Investor Program's investor visa category aims to promote economic growth in the United States by incentivizing foreign investment in high-potential commercial ventures. This preference is reserved for business investors who invest $1.8 million or $900,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least ten full-time U.S. workers.	No

How can Paperfree.com help

As you embark on your quest for an EB-5 visa, we want to be your guide and resource throughout your application journey. Take advantage of our magazine for added EB-5 visa information and our marketplace for viable EB-5 investments. 

Sources

1 Egov.USCIS.gov  https://egov.uscis.gov/processing-times/
2USCIS.gov/green card https://www.uscis.gov/green-card/green-card-processes-and-procedures/consular-processing#
3 USA.gov https://www.usa.gov/adjustment-of-status 
4 Travel.state.gov https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html 
5 Cornell Law https://www.law.cornell.edu/cfr/text/8/204.6 
6 USCIS.gov
https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-the-eb-5-visa-classification 
7 USCIS.gove/ 1-526 https://www.uscis.gov/sites/default/files/document/forms/i-526.pdf
8 Eforms.state.gov/Form Finder https://eforms.state.gov/
9 USCIS.gov. I-485 https://www.uscis.gov/sites/default/files/document/forms/i-485.pdf
10 USCIS.gov. I-829 https://www.uscis.gov/sites/default/files/document/forms/i-829.pdf

 
 
 

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