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EB5 Visa

What is the EB5 Visa?

The EB5 visa allows certain investors to permanently come to the United States if they make a necessary investment in a commercial enterprise in the United States and are planning to create or preserve 10 permanent full-time jobs for qualified U.S. workers. Generally, a business investor must invest $1.8 million or the lower amount of $900,000 if made in a targeted employment area in order to qualify for the EB5 visa. Moreover, the investment must be in a new commercial enterprise to qualify under the visa.

Who Qualifies for the EB5 Visa?

In order to qualify for the EB5 visa, an individual must be a business investor to a new commercial enterprise with an investment of at least $1.8 million. A business investor may qualify for the EB5 visa for an investment of only $900,000 if the investment is in a “targeted employment area.

What Commercial Enterprises Qualify Under the EB5 Visa?

A commercial enterprise includes any for-profit activity formed for the continuity of lawful business. Some examples include joint ventures, sole proprietorships, partnerships, holding companies, corporations, business trusts, or other private or publicly owned entities. Only commercial activity qualifies under the EB5 visa.

Under the EB5 visa requirements, a commercial enterprise must have been established after November 29, 1990 or on or before November 29, 1990 and was restructured or reorganized subsequent to purchase such that a new commercial enterprise results or expanded through investment resulting in a 40% increase in the enterprises net worth or the number of employees.

What is a Targeted Employment Area?

A targeted employment area is one that has experienced high unemployment such that employment in the area is at least 150% of the national average unemployment rate. Alternatively, a targeted employment area includes all rural areas. Generally, rural areas are those which have a population of fewer than 20,000 people as of the last census.

Both areas with high unemployment and rural areas qualify if they are metropolitan statistical areas (MSA), or a county, city or town therein.

What are the Job Creation Requirements for an EB5 Visa?

The EB5 visa requires that the investor meet certain criteria for job creation resulting from their investment. Generally, this means there must be at least 10 full-time jobs created as a result of the investment. However, there are regional requirements, qualified employee requirements, full-time requirements, and options for troubled businesses that correspond to the job creation requirement.

Regional Centers

Commercial enterprises that are formed as a result of the investment that are located within a regional center are permitted to have created 10 full-time positions directly or indirectly.

Direct Job Creation

Direct jobs refer to those that are created via an employer-employee relationship between the new commercial enterprises and its new employees.

Indirect Job Creation

Indirect jobs refer to those that are created as a result of the new commercial enterprise but are held outside of the new commercial enterprise and its employer-employee dynamic.

Non-Regional Centers

Commercial enterprises that are formed as a result of the investment but are not located within a regional center must have created the 10 full-time positions directly. This means that the new commercial enterprise must be the employer of the 10 new full-time employees.

Troubled Businesses

Troubled businesses refer to those in which the investor is contributing capital and thereby helping to maintain pre-existing jobs. To qualify as a troubled business, it must meet certain requirements:

  • Existed for at least two years;
  • Sustained a 12-24 month long period of net loss;
  • The period of net loss must have occurred before the priority date on the EB5 applicant’s Form I-526;
  • The sustained net loss must be at least 20% of the troubled business’ net worth before the loss.

Qualifying Employee

A qualifying employee includes:

  • U.S. citizens;
  • Lawful permanent residents;
  • Immigrants authorized to work in the United States, such as:
    • Conditional residents;
    • Asylees;
    • Refugees;
    • Temporary residents;
    • Residents whose deportation has been suspended

A qualifying employee does not include:

  • Immigrant investors;
  • The spouse or children of an immigrant investor;
  • Nonimmigrant status visa holders;
  • Anyone not authorized to work in the United States.

Full-Time Employees

An employee is considered full-time when he or she works a minimum of 35 working hours per week. This applies to full-time employees whose position was directly or indirectly created.

What is the Process to Obtain an EB5 Visa?

The process to obtain an EB5 visa is fairly simple. However, an applicant must be able to prove by evidence his or her eligibility for the visa. In order to receive an EB5 visa, an applicant must follow the steps below:

Step One: File Form I-526, Immigrant Petition by Alien Investor and Evidence

An applicant must first complete Form I-526, Immigrant Petition by Alien Investor with the United States Citizenship and Immigration Services (USCIS). If USCIS approves the petition, it will be sent to the National Visa Center where a case number will be assigned.

When submitting Form I-526, the applicant must be able to prove through documentation:

  • The business qualifies as a for-profit new commercial enterprise according to the new commercial enterprise definitional requirements;
  • The applicant is or will be managing the new commercial enterprise through direct oversight or through formulating policy that applies to the business;
  • Evidence of the applicant’s investment in the commercial enterprise;
  • Evidence that the applicant’s investment capital was lawfully acquired and held by the applicant, including:
    • Tax returns;
    • Foreign business registration records;
    • Certified court judgments;
    • Evidence of other sources of capital
  • Evidence that the business will meet the job creation requirements, including:
    • Documentation showing the business has met this requirement;
    • A comprehensive business plan projecting that the business will meet this requirement.
  • Evidence that the business will meet the troubled business requirements, if applicable, including:
    • Copies of tax records;
    • Copies of Form I-9 Employment Eligibility Verification of employees;
    • Other relevant documents for qualifying employees;
    • A comprehensive business plan in support of the applicant’s petition.

Step Two: File Form DS-261, Choice of Address and Agent

After the National Visa Center receives the petition and the applicant’s priority date matches the most recent qualifying date, the applicant will be instructed to complete Form DS-261, Choice of Address and Agent with the United States Department of State. The NVC will also instruct the applicant to pay all applicable fees.

Step Three: File Form DS-260, Application for Immigrant Visa and Alien Registration

If the EB5 applicant is not presently in the United States, the applicant will need to file Form DS-260, Application for Immigrant Visa and Alien Registration with the United States Department of State once his or her petition is approved.

Step Four: File Form I-485, Application to Register Permanent Residence or Adjust Status

If the EB5 applicant is already in the United States under another non-immigrant status, he or she must file Form I-485, Application to Register Permanent Residence or Adjust Status with the USCIS.

Step Five: Receive Conditional Permanent Resident Status

Individuals who successfully receive an EB5 visa are in the United States as a conditional permanent resident. This status will require the visa holder to seek lawful permanent resident status after two years in the United States under conditional permanent resident status.

Step Six: Petition for Lawful Permanent Resident Status

After living in the United States for two years under conditional permanent resident status, the visa holder must file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. This must be filed within 90 days of the conditional residency status two year expiration date.

When submitting Form I-829, the applicant will need to produce evidence showing he or she has maintained his or her investment in the business throughout the two years and that the business has met the job creation and other requirements for the EB5 visa.

How Much Does it Cost to Obtain an EB5 Visa?

The cost to file Form I-526 is $3,675.
The cost to file Form DS-260 is $325.
The cost to file Form I-485 is $1,140.
The cost to file Form I-829 $3,750.

Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.