The EB-5 Visa   

Table:
ויזה 5-EB לארה"ב

Did you know that you can purchase a green card to the US? That’s right – through the pathway of an EB-5 investment visa. The EB-5 program allows foreign investors to invest a substantial sum to a US business with the result being permanent residence or a green card to the US. The green card eventually can lead to US citizenship.

Overview

In 1990 the US Congress authorized the Immigrant Investor Program (EB-5) to help stimulate the US economy through foreign investment. Each year there are 10,000 EB-5 visas available worldwide to foreign investors. For the years 2014-2019 most, if not all, of the EB-5 visas were issued. In 2020 and 2021 the numbers dropped precipitously because of the onset of the COVID19 pandemic and changes to the law in mid-2021 (since undone). See the chart below: 

Figure 1. Immigrant Investor (EB-5) Admissions and Adjustments of Status, FY2010-FY2019

ויזה 5-EB לארה"ב

What are regional centers?

Regional centers are large development projects established in individual states. They can be hotels, shopping centers or malls, road construction projects, amusement parks, etc. The EB-5 investor is one of many investors. Unlike private business investments, the investor in a regional center assumes a passive role in the project. The money is invested up front with the regional center. A contract covers the annual rate of return (usually very small) and when the investment likely will be paid back.

How the Process Works

ויזה 5-EB לארה"ב

The first step is deciding where and how to invest. If the plan is to build and to invest in one’s own business, there are numerous considerations. Most personal business investments require a minimum investment of $1.05 million. If the business is in a high unemployment or rural area, known as a targeted employment area (TEA), then the minimum investment drops to $800,000. The money must be proven to belong to the investor and have originated from legal sources. The money must be invested in the business prior to the filing of the case. Most importantly, the investor must prove that the investment will lead to the hiring of at least ten full time US workers over the next two-year period.

To prove the company will use the investment to hire ten US workers, the file must include an extensive business plan, showing clearly how the funds will lead to hiring the workers. Once the case is filed and processed by USCIS (currently taking 1 ½ year for most foreign investors with the exception of Chinese citizens), the investor and his immediate family will be given temporary green cards, good for two years. At the end of the two-year period, the investor must file a second petition, proving that the company indeed hired ten US workers over the prior two-year period. If the company proves the case, the investor and his family will receive permanent green cards.

The company to which the investment is made must be a “new” company, meaning one that was formed after 1990. Here are a few examples:

  • Investor A forms Company B in the US. Company B is real estate development company. Investor A invests the required capital. A business plan is developed, and the case is filed. The capital is used to hire managers, assistants and permanent laborers to build commercial and/or residential establishments. Once the petition is approved, Investor A must enter the US as a temporary green card holder and assist in the management of Company B. After the two-year period, the investor must file a new case, proving Company B hired ten full time US workers over the preceding two years.
  • 2) Company C is a restaurant in the US that was formed in 2010. Company C wants to open new branch restaurants under its existing organizational structure. Company C solicits an EB-5 investment of $1.05 million from Investor D. Investor D must prove that their investment will lead to hiring ten new US restaurant workers over the next two years. Investor D must also show they will participate in the active management of Company C’s restaurant business upon entering the US. Once the two-year period is completed, Investor D must file a new petition showing the investment was used for hiring ten new US workers. 

As was mentioned previously, the vast majority of EB-5 investments are made to regional centers. The advantage of the regional center is that the investor technically does not have to prove his/her investment will be used to hire ten workers. That’s because to take advantage of the EB-5 program, the regional center has already proven its number of planned EB-5 investments will lead to the hiring of at least ten workers per investor. Additionally, investments directed to a private business must show the investment led to the hiring of at least ten full time workers by the business. In the regional center context, a portion of its hiring can be outsourced through contractors, making it much easier to reach the ten-worker minimum. Thus, the investor must simply include in his/her petition filing the paperwork already produced by the regional center, showing how the center will allocate workers to its project.

The disadvantage of the regional center approach is the investor has little or no say in the running of the business. Most regional centers offer the investor a limited partnership in the center, which will grant them a small annual rate of return on their investment and provide a payoff at the end, usually around seven years after the investment. The challenge is finding the right regional center. The idea behind the investment is that the investor is putting his/her investment at risk. That means there’s no guarantee that the money will be repaid if the business fails. There are numerous regional centers around the US. The key is finding a regional center by a company that has a history of successful EB-5 investment projects.

The following chart shows the USCIS fees for L visas:

Additional Fees for L Nonimmigrant Petitions
Who PaysReason for FeeFee AmountAdditional Information
EmployerPetition Fee$460
Employers seeking initial L-1 nonimmigrant status for a foreign worker
OR
Employers seeking approval for a foreign worker already in L-1 nonimmigrant status to change employers, including petitions requesting new concurrent employment
Fraud Prevention and Detection Fee$500
Fee should be submitted in a separate check or money order
The L-1 Visa and H-1B Visa Reform Act of 2004 (part of Pub. L. 108-447 (PDF))
L-1 petitioners that employ 50 or more employees in the United States if more than 50 percent of these employees are in H-1B, L-1A or L-1B nonimmigrant status (with exceptions below)Pub. L. 114-113$4,500
Fees should be submitted in a separate check or money order
Signed into law Dec. 18, 2015, and is valid until Sept. 30, 2027. The fee is applicable for petitions filed on or after Dec. 18, 2015.
EmployerPremium Processing$2500

Filing the Petition

ויזה 5-EB לארה"ב

If the investor invests in a private business, the investor files the Immigrant Petition by Standalone Investor, form I-526, a very lengthy form that requests a great deal of personal and financial information from the investor and information about the investment. Below is a table produced by USCIS that shows the requirements.

Evidence and Supporting Documents to submit with Form I-526, Immigrant Petition by an Alien Investor

You may submit Form I-526 if you are an investor who wishes to immigrate to the United States.

RequirementsSupporting Documents (Evidence)*
New Commercial EnterpriseYou must submit evidence that you have invested in, or are actively in the process of investing in, a “for profit” new commercial enterprise that was established:
After Nov. 29, 1990, or
On or before Nov. 29, 1990, that was:
Purchased (and the existing business is restructured or reorganized in such a way that a new commercial enterprise results); or
Expanded through the investment, resulting in at least a 40% increase in the net worth or number of employees.
If applicable, you must submit evidence that an individual or entity established the new commercial enterprise and, if you seek eligibility under the reduced investment amount, you must also submit evidence of the targeted employment area (TEA). For the definition of a TEA and information about investment amounts, see About the EB-5 Visa Classification. For information about how to demonstrate that the investment is in a TEA, see Volume 6, Part G of the USCIS Policy Manual.
Managing the New Commercial EnterpriseYou must submit evidence that you are, or will be, managing the new commercial enterprise (either through day-to-day managerial control or through policy formulation).
InvestmentYou must submit evidence that you have invested or are actively investing the required amount of capital. (For the minimum investment amounts, see About the EB-5 Visa Classification.)
You must submit evidence that the investment capital was obtained through lawful means. The petition must be accompanied, as applicable, by:
Foreign business registration records;
Corporate, partnership (or other entity), and personal tax returns, or other tax returns of any kind you or someone on your behalf filed within the last 5 years, including any taxing jurisdiction in or outside the United States;
Evidence identifying any other source of capital; or
Certified copies of any judgments or evidence of all pending civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving money judgments against you from any court in or outside the United States within the past 15 years.
Job CreationYou must submit evidence that the new commercial enterprise will create at least 10 full-time positions for qualifying employees. If the entity responsible for job creation has not documented the requisite employees, you must submit a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for at least 10 qualifying employees will result.
Job Preservation–Troubled BusinessYou must submit evidence that the number of existing employees is, or will be, maintained at no less than the pre-investment level for at least 2 years. Submit photocopies of tax records; Form I-9, Employment Eligibility Verification; or other relevant documents for the qualifying employees, and a comprehensive business plan in support of the petition.

*For more information, see 8 CFR 204.6, the Form I-526 Instructions, and Volume 6, Part G of the USCIS Policy Manual.

The filing fee for the I-526 Petition is $3675. The following things are required to be provided in the Petition:

  1. Personal information such as name, address, date of birth and place of birth.
  2. The applicant’s residential address for the past five years.
  3. The applicant’s employment history.
  4. Immediate family information.
  5. Name and address of business to which the applicant is investing.
  6. Information about the investment and ownership interests.
  7. Applicant’s current net worth.
  8. Source of the investment. Evidence must be provided proving the source of investment.
  9. Employment creation information. In other words, the number of existing employees and how new employees will be hired. For petitions for private businesses as opposed to regional centers, a comprehensive business plan must be provided.

If the investor is investing in a regional center, the investor files Immigrant Petition by Regional Center Investor, form I-526e. The filing fee for this petition is $4675. The following things are required to be provided in the Petition:

  1. Personal information such as name, address, date of birth and place of birth.
  2. The applicant’s residential address for the past five years.
  3. The applicant’s employment history.
  4. Immediate family information.
  5. Information about the regional center, including the receipt number of its approval by USCIS.
  6. Information about the investment and ownership interests.
  7. Applicant’s current net worth. Note that most regional centers will not accept an investor unless he/she can show a net worth of approximately double the value of the investment.
  8. Source of the investment. Evidence must be provided proving the source of investment.
  9. Employment creation information. In other words, the number of existing employees and how new employees will be hired. The regional center provides this information for the filing.
  10. Numerous questions regarding any involvement in criminal activity.

As mentioned previously, the processing of EB-5 cases exceeds one and one-half years. For citizens of China, the wait is much longer, up to seven years. Approximately, one-half of EB-5 petitions originate with Chinese citizens. These delays mean that unless the petitioner is already in the US legally in some other status, then they cannot reside or work in the US until they receive the green card through the EB-5 process.

Permanent Green Card

As discussed earlier, the initial green card is a temporary one, good for two years. If the investment was made to a private business, then the investor must be active in the management of the business but can also work elsewhere. The rest of the family can work anywhere. If the investment was made to a regional center, then the investor and the family can work anywhere. Just prior to the expiration date the investor must file form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status).

Other than a lot of personal information, similar to the earlier petition, the focus of the new filing is requesting information on the fulfillment of the requirements for job creation under the EB-5 program. If the investor invested in a regional center, the regional center will provide the evidence of job creation as well as assisting in the filling out of some of the requirements of the petition. If the investor invested in a private business, evidence must be provided showing how the investment led to the hiring of at least ten full time US employees.

Below is a list of documentation that must be provided with the petition:

  • Copy of the investor’s green card
  • Copies of spouse’s and/or child(ren)’s green cards
  • Tax returns for the commercial enterprise. USCIS will typically ask for returns from at least the past five years.
  • Proof of investment into the commercial enterprise. Proof can come in the form of financial statements or bank statements.
  • Evidence that the above enterprise is an ongoing operation. This can come in the form of actual receipts, bank account statements, or formation documents.
  • Proof of the required full-time employees both at the beginning of the investment and at the time of filing the I-829. Documents such as I-9s, W-2 forms and payroll receipts can be used.
  • Any relevant information regarding any arrest or conviction
  • USCIS-required fees, including a standard government filing fee and a biometrics fee. The current filing fees are $3750 for the petition and $85 each for a biometrics exam for the investor and every person in the family.

As mentioned previously, occasionally regional center projects fail. The investor may or may not be able to recover the investment. However, a project failure does not mean the investor and the family will be unable to obtain a permanent green card. If the requisite jobs were created and the application requirements were satisfied, even temporarily, the investor should be granted permanent residence. Of course, these must be proven in the I-829 filing.

Since 2019 the delays in processing I-829 petitions are extremely lengthy. As of October, 2022, the delays are almost five years. Once the case is filed, USCIS will send a receipt notice with an extension of 18-24 months. The delays cause issues in travel because an expired conditional green card is not accepted as a valid entry into the US. An original extension notice accompanied by the expired green card is accepted for entry. Alternatively, the investor and family can make an appointment with a local USCIS office and request an extension stamp in their passports.

How Cohen and Brosh Law Offices can Help ?

The EB-5 process is complicated. Professional assistance is extremely important. Cohen and Brosh has successfully processed EB-5 petitions. The following is a list of considerations for a potential EB-5 investor:

  1. Do you have sufficient financial resources in case the investment fails? No one wants to consider this option, but regional center investments can and do fail occasionally. This is why regional centers usually require the investor to have assets equal to double the investment amount.
  2. Are you considering a private investment business? If so, the most important test is the hiring of ten full time workers by the business over a two-year period. These workers must be employees of the business and not contract workers. Increasingly, businesses use contract workers to reduce employment costs.
  3. If you are considering a regional center investment, how do you choose the right one? As of October, 2021, there were 632 approved regional centers in the US. Many of them are no longer open for investment. Law firms, such as Cohen and Brosh, which assist in filing the EB-5 petitions, are not permitted to advise on specific regional centers. However, we can work with clients on sorting through the details of the investment, the business plan, the track record of the development company and review the contracts that the investor needs to sign with the regional center to initiate the process.
  4. What else does your firm do? Cohen and Brosh will work with you from the initial stage of examining your choice of project to reviewing contracts, making recommendations, gathering documentation, working with the project managers, ensuring the investment is safely transferred, preparing the filing, submitting the filing, responding to any requests from USCIS, assisting filling out forms and gathering documents once the case is approved to submit to the embassy, preparing the client for the embassy or USCIS interview and later assisting in the submission of the I-829 form that removes conditions on the green card and enables the investor and the family to receive permanent green cards.
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