As the EB-5 program continues to grow in popularity as a means of attracting foreign investors to the United States in exchange for residency, it’s important to understand, step-by-step, what is required to successfully complete the process. There are four general conditions applicants must abide by that span several years, and may require patience and diligence. They are: (1) finding a project that is deemed acceptable by United States Citizenship and Immigration Services, (2) making the appropriate financial investment in the project, (3) applying for conditional, two-year residency, and (4) removing conditional residency status to become a permanent, legal resident.
Finding a Project
To get started, the interested party must first meet eligibility requirements, as stipulated by the United States Securities Act of 1933, that confirm the party has the necessary funds to invest in a project. Once this has been done, the individual can begin the task of actually finding a project — that meets mandates set forth by USCIS — in which to place capital.
There are two major requirements. First, the project must be a new commercial enterprise. That is, it must be a venture that is established after November 29, 1990, or if it existed beforehand, it must be restructured in a way that a new commercial enterprise results, or a 40 percent increase in the net worth or number of employees happens. This can be a solely-owned business, a partnership, a joint venture, or a corporation, to name a few examples. Next, the project must create or preserve at least ten jobs that employ qualified U.S. workers (citizens, permanent residents, or another type of immigrant authorized to work in this country). Jobs can be direct or indirect, meaning employees might be employed directly by the new commercial enterprise or indirectly by companies that add positions as a result of the project.
Prospective EB-5 visa holders often use regional centers to identify projects. USCIS maintains a current list of regional centers.
Making a Capital Investment
An applicant must then make a capital investment into the project. Investments should total at least a million dollars with one exception: projects in targeted high unemployment or rural areas, which can meet a lower investment threshold. (USCIS defines high unemployment areas as communities that have an unemployment rate of at least 150 percent the national average. Rural areas are defined as those existing outside a metropolitan statistical area or outside the boundary of a city whose population is 20 thousand residents or more.) For these specified areas only, a capital investment must total 500 thousand dollars.
Investment capital cannot be borrowed, and capital is defined by USCIS as “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 applicant must then file an I-526 petition, which is usually prepared by an immigration attorney, and simply demonstrates the investor is in the process of investing in the project, or has already done so.
Applying for Conditional Residency
Once the I-526 petition has been approved, the applicant can file for conditional, two-year residency. For an individual already in the United States, that means filing Form I-485, Application to Register Permanent Status or Adjust Status. If the applicant is living outside the U.S, he should use Form DS-230 or DS-260, Application for Immigrant Visa and Alien Registration. This is filed with the Department of State for admission into the country. This process might take a year or longer to complete.
Removing Conditional Residency Status to Become a Permanent Resident
After the individual has been approved for conditional residency and spends nearly two years in the U.S., fulfilling a physical presence requirement, he is then eligible to apply to have conditional status removed — and to become a permanent resident. Form I-829, Petition by Entrepreneur to Remove Conditions, should be filed 90 days before the two year anniversary of residency, If approved, USCIS will remove all conditions from the EB-5 applicant’s status, and the individual and his family members will be granted permanent green cards, which will require renewal every ten years. Simultaneously, the investment will continue, and will be repaid separately based on specified terms.
Contact KPPB Law For More Information on EB-5 Visas
To learn more about U.S. visas and the immigration process, and to take advantage of our array of immigration services, please contact KPPB Law by calling (703) 594-4040 or by sending us a message online. We offer complimentary consultations that will help you determine the best course of action to take.
Beeraj Patel, Esq.
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