EB5 Visa Attorney

The EB5 visa is commonly referred to as the immigrant investor program and is one of the employment-based routes to permanent residence in the U.S. Under this program, foreign investors and their dependents can come into the United States to manage or oversee their investments if they meet the eligibility criteria.

The EB5 visa program was created by the U.S. Congress under the Immigration Act of 1990 to stimulate and grow the economy through foreign capital investment and job creation.

Interested EB5 investors may consult with an attorney with experience in immigration services to draft a successful application that meets all the United States Citizenship and Immigration Services (U.S.C.I.S.) requirements and avoid getting denied.

Overview and Eligibility Requirements for the EB5 Visa

There are five preference categories in the employment-based route for permanent workers in the U.S. The EB5 visa is the fifth preference category, hence its nomenclature — EB5. The U.S.C.I.S. grants up to 10,000 EB5 visas annually, with no single country getting more than 7% of the available visas.

Many believe an EB5 visa is easier to obtain than most other employment-based visas, as no labor certification process, existing home country business, or proof of extraordinary ability is required. However, the application process, deadlines, and requirements can still be challenging. It may help to look for and hire a competent attorney or law firm to represent you, especially if you need to go to immigration court.

Below are some of the requirements for this visa:

EB5 investors must be investing in a new commercial enterprise established after the creation of the green card program on November 29, 1990. Alternatively, it could be an existing business that has grown by at least 40% through investment or restructured to become a new business.
The business must create at least ten full-time employment positions for qualifying individuals.
The investor must have acquired their capital funds through a lawful source.
The investor must be the legal owner of the funds.
Investment capital funds must genuinely be at risk, i.e., invested in the business and not merely sitting in the business account or an investment with a guaranteed rate of return.
The investment must meet the minimum amount requirement.

Minimum Investment Amount Requirements

For petitions filed before March 15, 2022, the minimum investment amounts are $1 million for standard investments and $500,000 for investment in a targeted employment area. Targeted employment areas are defined by states and are typically places where more jobs are needed.

However, cases filed after March 15, 2022, are subject to the EB-5 Reform and Integrity Act of 2022, signed into law by President Biden. It raised the minimum standard investment amount to $1,050,000 and investment in targeted employment areas to $800,000.

EB5 Application Process

Step 1: File Form I-526

The first step is to file Form I-526 for standalone investors or Form I-526E for regional center investors with the U.S.C.I.S. Processing times for this form vary depending on the investor’s country of origin and whether or not complications arise during the process.

According to the U.S.C.I.S., 80% of petitions from immigrant investors from mainland China get resolved in 81 months. For Indian investors, the number falls to 46 months. For people of other nationalities, the processing time is 58.5 months. However, these figures are only approximations, so you may get a response to your petition earlier or later.

Step 2: Adjustment of Status / Consular Processing

If you are in the U.S. when filing Form I-526, you can apply for an adjustment of status by filing Form I-485. Form I-485 can be filed concurrently with your immigrant investor petition if a visa is available, i.e., if your priority date is current. You can also file this form before or after the petition has been approved when your priority date is current.

If you are outside the United States, you will have to file Form DS-260 with the Department of State online for consular processing to begin. Then the consulate or embassy in your country will schedule you for an interview. If it is successful, you will be issued the EB5 visa.

Step 3: Conditional Permanent Resident Status

On entering the U.S., you will be given conditional permanent residence for two years. Within 90 days of the expiration of this status, you can file Form I-829, a petition to remove the conditional status of your permanent residency. If you satisfy all the requirements regarding the business you invested in, the U.S.C.I.S. will approve your petition, and you will become a U.S. permanent resident.

How a Lawyer Can Help

Whether you are applying for the EB5 visa as a standalone investor or via regional centers, having an attorney represent you is a great idea. Getting work permits for any employment-based visa is usually more challenging than family-based petitions, which typically only require proof of an existing relationship.

Furthermore, with an EB5 visa, your money is at risk, especially as a foreign investor investing with a regional center. For this reason, it may be best to seek the guidance of an experienced attorney or law firm that can help you obtain your green card and citizenship without losing your money.

Attorney Andrew Thomas has successfully represented clients in EB5 and other immigration cases. If you need a helpful and experienced immigration attorney with a track record of excellence, contact Andrew T. Thomas, Attorneys at Law, today.

Frequently Asked Questions

What Are EB5 Regional Centers?

The U.S.C.I.S. defines EB5 regional centers as U.S. public or private economic units that promote economic growth. It designates these centers and approves them for participation in the Immigrant Investor Program. Regional centers typically pool funds from EB5 investors and invest them in commercial business operations. Some prefer it over standalone investments since some of its criteria appear more lenient.

What Type of Business Enterprise Can an EB5 Visa Holder Invest In?

For a business to qualify, it must be commercial, i.e., a for-profit enterprise. According to the U.S.C.I.S., commercial enterprises include the following types of companies:

Joint ventures
Sole proprietorships
Business trusts
Limited and general partnerships
Corporations
Limited liability companies
Holding companies and their wholly owned subsidiaries (subsidiaries must be engaged in for-profit activity)
Other publicly or privately owned entities.

Can EB5 Visa Applicants Bring Their Family?

Yes, EB5 visa applicants can include their immediate family members in their Form I-526 application. However, each dependent will need to file separate DS-260 forms for consular visa processing and I-485 forms for adjustment of status.