EB-5 Visa Program (Investment)
In general, the investor must meet capital investment amount requirements, job creation requirements, and ensure that the business receiving the investment qualifies for the EB-5 program. EB-5 visa applicants, their spouse, and their children under 21 will obtain their permanent residency green card once all requirements have been successfully met and approved by the USCIS.
Required EB-5 Investment Amount
The minimum amount of capital required for the EB-5 visa program may be decreased from $1 million to $500,000 if the investment is made in a commercial entity that is located in a targeted employment area (TEA). The EB-5 project must either be in a rural area or in an area that has high unemployment in order to qualify for TEA designation. High unemployment areas are geographic locations with an unemployment rate that is at least 150 percent of the national unemployment rate at the time of the EB-5 investment. Rural areas are geographic regions that are outside of a city with a population of 20,000 or more. Rural areas can also be geographic regions that are outside of what the U.S. Office of Management and Budget has designated as metropolitan statistical areas.
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. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.
The immigrant investor must establish that he or she is the legal owner of the capital invested. Capital can include the immigrant investor’s promise to pay (a promissory note) under certain circumstances.
Required minimum investments are:
- General. The minimum qualifying investment in the United States is $1 million.
- Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.
A targeted employment area is an area that, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 percent of the national average rate.
A rural area is any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more according to the most recent decennial census of the United States.
EB-5 Job Creation Requirements
The USCIS requires that EB-5 investments result in the creation of 10 full-time jobs for U.S. workers. These jobs must be created within the two year period after the investor has received their conditional permanent residency. In some cases, the investor must be able to prove that their investment led to the creation of direct jobs for employees who work directly within the commercial entity that received the investment. However, the EB-5 investor may only have to show that 10 full-time indirect or induced jobs were created if the investment was made in a regional center. Indirect jobs are those created in businesses that supply goods or services to the EB-5 project. Induced jobs are jobs created within the greater community as a result of income being spent by EB-5 project employees.
EB-5 Business Entities
There are several types of business entities in which an EB-5 visa applicant can invest. In general, the applicants can invest directly in a new commercial enterprise or in a regional center. New commercial enterprises are lawful for-profit entities that can take one of many different business structures. Such business structures include corporations, limited or general partnerships, sole proprietorships, business trusts, or other privately or publicly owned business structures.
In addition to individual business enterprises, EB-5 visa applicants can also invest in EB-5 Regional Centers. Regional centers administer EB-5 projects. It may be more advantageous for an investor to invest in a regional center-run project because the investor will not have to independently set up the EB-5 projects.
- Invest US $500,000 in a USCIS approved “Designated Regional Center”
- The investor must have a minimal policy-making role (the limited partnership role offered by most Regional Centers will qualify)
- The investment must directly or indirectly create 10 U.S. jobs
The EB-5 visa program has an annual maximum of 10,000 visas issued per year. 3000 of these visas are reserved for the Regional Center Pilot Program. The USCIS has stated that up to the full 10,000 allotted visa slots may be used for Regional Center based visas if not used for Standard Program EB-5 visas.
Because Regional Center investors place their money in a fund previously approved by the USCIS for the job creation and other requirements of the EB-5 visa, many of the legal issues in a standard program filing – such as demonstrating a qualified commercial enterprise, projecting 10 U.S. job creations, etc., are eliminated or greatly simplified. Nonetheless, issues remain.
Removal of Conditions
To remove the “conditional” nature of the initial Green Card, you must prove that you invested the required amounts in the USCIS-approved regional center, that that commercial enterprise was established, that it created directly or indirectly 10 full-time jobs, that you have continuously maintained this investment during the 2 year period and, if some of the jobs you count toward the 10 are indirectly created, that the regional center is still approved by USCIS.
Grounds of Excludability
EB-5 visa applicants are subject to the same bars against entry as are other intending U.S. immigrants. Grounds for denying a visa include:
- Overstay of prior U.S. visa of more than six months
- Prior criminal conviction
- Communicable illness (AIDS, infectious tuberculosis, syphilis, etc.)
- Membership in a Communist or any totalitarian party
- Illegal export of sensitive U.S. technology, goods, or information
- Money Laundering
- Terrorist Activities
- Sexual Abuse of Minors