What can an employer pay for on the EB-5 application?

EB-5 requires an investment of personal funds. You, as the investor, would be the petitioner. You would be filing the petition on behalf of yourself. The EB-5 entity is not involved beyond being the project you invest in. Working with an immigration attorney will help you with the process and answer all kinds of legal and procedural questions.

The EB-2 regulations are completely different from the EB-5 investor regulations. For example, the EB-5 investor is required to use his own funds to make an “at risk” investment, in the company ($500,000 or $1 million, depending on several factors), and the company MUST also hire at least 10 U.S. citizens or permanent residents. The EB-5 investor also covers all additional costs.

I know of no regulatory requirement that the investor pay the legal fees and expenses relating to an EB-5 petition. The investor does have to meet all EB-5 elements - which are individual and apart from the employment. Typically, the legal fees and expenses for an EB-5 petition are more than that of an EB-2 petition.

You cannot substitute the EB-2 visa petition for EB-5. Succinctly, the two similarities between the two EBs are: 1) they are employment-based in name and 2) upon petition and approval, each of them results in a green card. However, both visas are vastly different in terms of requirements, eligibility, process and purposes. On the one hand, the EB-2 is an employer-centered visa through which an employer petitions to sponsor an employee (beneficiary) it plans to hire. On the other hand, the EB-5 is an investor-centered visa through which the petitioner is sponsoring himself (along with family members) by investing at risk an amount of either $500,000 or $1 million. Thus, an employer cannot file an EB-5 application on behalf of any employee. Consult an EB-5 attorney before you proceed further on your plan.

You as the individual investor would have to document your source of funds and show that you made the minimum $500,000 investment. In addition, there is normally an administrative fee of as much as $50,000 or even more, plus filing fees. I know of no specific prohibition against the employer paying the filing fees per se.

You probably should pay as the investor. It is not clear as to how your employer goes from EB-2 to EB-5?

This question does not make much sense, as the EB-5 is for investments into new commercial enterprises or distressed companies with the goal of job creation. With any employment-based visas, however, the employer must pay all the fees.

Your employer would not file an EB-5 petition for you. Instead, you as the investor would file a petition where you would invest either $500,000 or $1 million in a business that would create 10 full-time jobs.

EB-5 is an investment immigration process in which the investor must invest $500,000 or $1 million into a project or business to create 10+ full-time, permanent jobs. It is not something a potential or current employer who is contemplating an EB-2 (professional with a master's degree or higher) sponsorship would consider unless they will give you a very large bonus. Also, the EB-5 petition (I-526) is a self-petitioning application, not a sponsorship that someone else could do for you. If you earn a lot of money from this employer and you have saved at least $500,000, then perhaps you could consider doing the EB-5 process independently and concurrently as your employer's EB-2 process.