EB-5 visa program requirements

by Sonia Sujanani

The EB-5 program is a method for foreigners who make an investment in a U.S. business to obtain permanent residency. The applicant must invest $1 million in a commercial enterprise (or $500,000 in a targeted employment area) and create 10 full time jobs in the United States within two years. Although it seems like a “pay to play” visa, applicants must meet strict requirements to obtain permanent residency.

A potential EB-5 applicant must first file an I-526 petition to prove eligibility for the EB-5 program.[1] The I-526 petition demonstrates that the applicant is in the process of investing or has already invested the required amount of capital in a suitable EB-5 project.[2] At this stage, the key hurdle to obtaining conditional permanent residence is to prove that their capital investment comes from a lawful source of funds.[3] This is particularly difficult for investors whose funds are gifts from their parents, inheritance, or who come from countries where it is hard to prove they lawfully obtained funds.[4] For example, in China, where most EB-5 interest comes from, many people do not file tax returns so it is difficult to prove their lawful income.[5] The applicant must also provide evidence that the commercial enterprise will create at least ten qualified full-time jobs[6] and that the investor will have a policy-making or managerial role in the enterprise.[7]

Upon approval of the I-526 petition, immigrant investors can adjust their status to become conditional permanent residents by filing an I-485 petition.[8] Investors who are not already in the United States must file a DS-230.[9] At this point, the applicant discloses biological information to USCIS to confirm their eligibility for permanent residency.

Finally, upon completion of the two year period, the applicant files a petition to remove conditions on form I-829. The petition must include evidence that the applicant has fulfilled all requirements of the EB-5 program—the most common issues are job creation, sustaining the investment, redemption, pooled trust, material change, and business plan issues.[10]

The EB-5 program is growing in many ways—investor interest is coming “from all corners of the globe,” EB-5 filings have increased year-over-year for the past three years, and in FY 2012 the U.S. government issued over 7,400 EB-5 visas.[11] With increased demand and little statutory and case law guidance, immigration attorneys and potential investors increasingly look to policy memoranda, Freedom of Information Act Requests, and websites like eb5investors.com for guidance to better advise their clients.[12]

[1] https://www.eb5investors.com/eb5-forms/i-526-petition

[2] Id.

[3] Id.

[4] Phone Interview with Attorney Rachel Lew (Dec. 4, 2013).

[5] Id.

[6] To qualify, the workers must be U.S. citizens, permanent residents, or other authorized immigrant workers.

[7] https://www.eb5investors.com/eb5-forms/i-526-petition

[8] https://www.eb5investors.com/eb5-forms/i-485-application

[9] Id.

[10] Sonia Sujanani, Stephen Yale-Loehr, Robert C. Divine, EB-5 I-829 RFEs and Denials: A New Analysis of What USCIS Looks For, 18 Bender’s Immigr. Bull. 795 (July 1, 2013).

[11] Citizenship and Immigration Services Ombudsman Executive Summary: EB-5 Immigrant Investor Program Stakeholder Meeting (Mar. 5, 2013) [hereinafter March 2013 EB-5 Stakeholders Meeting], http://www.dhs.gov/sites/default/files/publications/cisomb-EB-5-meeting-summary_0.pdf.

[12] Phone Interview with Attorney Stephen Yale-Loehr (Dec. 5, 2013).