Immigrant entrepreneurs and investors can apply to the program to secure residency in America. Several basic requirements determine your eligibility for the US EB-5 Immigrant Investor Program.
You must adhere to the following applicable eligibility requirements:
- Make a lawful capital direct investment in an enterprise that equals to or is greater than $1,050,000 (or $800,000 if investing in a Targeted Employment Area (TEA))
- Plan to create or save ten permanent full-time jobs for qualified US workers
- Hold a clean criminal record
Capital investment requirements
You must make a lawful capital investment in an enterprise that equals or is greater than $1,050,000. The required investment cost is $800,000 if investing in Targeted Employment Areas (TEA).
Capital means cash, equipment, inventory, cash equivalents, other tangible property, and indebtedness that is secured by assets that the immigrant investor owns if they are personally and primarily liable. Plus, the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.
Capital is valued at a fair market price in US dollars. Assets that are acquired, either directly or indirectly, by unlawful means are not considered capital.
It is important to note that investors will need to establish that they are the legal owner of the invested capital. Under certain conditions, capital can include a promise to pay (a promissory note).
The Target Employment Area (TEAs)
The TEA requirements are as follows:
A map of all TEAs can be found here.
TEA designation is applicable to EB-5 direct investment projects that are located in a rural area of the country or in a high unemployment area, with a national average unemployment rate of 150 percent.
A rural area is any area that is not within a metropolitan statistical area (MSA), as designated by the Office of Management and Budget, or within the outer boundary of any city or town that has a population of 20,000 individuals, according to the most recent decennial census in the USA.
A high unemployment area needs to fit the following criteria: An area where the new commercial enterprise is principally doing business and the area has experienced an average unemployment rate of at least 15 percent of the national average unemployment rate.
Return on Your EB-5 Visa USA Investment
So, you’ve made your EB-5 investment. However, will your capital be refunded in full, or will you acquire an attractive rate of return on your money? Sadly, there are no guarantees possible, but this does not necessarily mean that investors are taking an unnecessary risk.
There are certain steps that you can take to ensure that you make a strong investment. This includes the capital stack and developer equity which shows skin in the game. For the USA EB-5 Visa, contributions are normally classified in the first position in the capital stack and are, therefore, fully secured by the equity in EB-5 investment projects.
Another aspect to consider in order to determine the profitability of your investment is to focus some attention on your exit strategy. This must match with your I-829 filing date, the time at which your investment is no longer classified as being “at-risk”. While this is difficult to determine, add some cushion to your time calculations to help alleviate some of the risks.
Generally, an EB-5 Visa isn’t one that usually reaps a high rate of return. However, since the market is constantly evolving, legitimate investments are offering better returns on investments than before.
Job creation requirements
Job creation requirements are as follows:
Foreign investment in new commercial enterprises must create ten full-time direct jobs to qualify for the EB-5 Visa program.
Up until 30 June 2021, investors were able to invest in a regional center, but this was suspended. However, when the EB-5 Reform and Integrity Act was passed in March 2022, the Regional Center program was reauthorized for five years, through to September 2027, allowing investors to invest in regional centers. You will find information on the Regional Center program in this article.
An EB-5 Regional Center is an entity that sets aside EB-5 Visas for foreign investors and is designated by the immigration service USCIS (the United States Citizenship and Immigration Services) to foster economic growth.
For new commercial enterprises that are not located in a regional center, ten full-time positions need to be created. This means that commercial enterprises or their subsidiaries, which are completely owned by them, must be the employer of the qualifying employees.
For new commercial enterprises that are located within a regional center designation area can directly or indirectly create ten full-time positions.
- Direct jobs establish an employer-employee relationship between the two parties.
- Indirect jobs are held outside of the new commercial enterprise and are created as a result of the enterprise.
EB-5 Visa troubled businesses
Troubled businesses are those that have existed for at least two years and have incurred a net loss during the 12-month or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’s net worth before the loss in capital.
The USCIS will consider successors in interest to the troubled business when determining whether the troubled business has been in existence for two years. The USCIS will also evaluate whether they have existed for the same time period as the business they succeeded in.
When a troubled business is in question, then the EB-5 investor may rely on job maintenance. The investor will need to present that the number of employees there are or will be, is no less than the pre-investment level for a period of two years.
What is a qualifying employee?
Included: A qualifying employee is a US citizen, a lawful permanent resident in the USA, or another immigrant that is authorized to work in the US. This includes a conditional or temporary resident, asylee, refugee, or a person that is residing in the US under suspension of deportation.
Not included: Immigrant EB-5 investors, their spouses, children, or any non-citizen in any non-immigrant status, or anyone that is not authorized to work in the US.
Full-time employment: This means that the employment of a qualifying employee in the new commercial enterprise must be working in a position that requires a minimum of 35 hours per week. For the Regional Center program, full-time employment can also mean the employment for the qualified person if they are in a position that has been created indirectly, but that requires a minimum of 35 working hours per week.
Jobs that are temporary, seasonal, intermittent, or transient do not qualify as permanent full-time jobs. Employment that is expected to last at least two years is generally not considered as temporary, seasonal, intermittent, or transient.
Benefits of the USA EB-5 Visa
The USA has long led the way — from technology to investments — which is not surprising given that the USA offers the largest consumer market in the world with a GDP of $20 trillion and with household spending accounting for more than a quarter of global household consumption.
When your petition is approved, your spouse and unmarried children under 21 can also apply for the EB-5 Visa.
There are several benefits of living in America and opting for the USA EB-5 Visa category for foreign nationals, including the following:
- Potential for a profitable investment
- Enter and leave the country as a permanent resident of the USA
- Path to US Citizenship is possible
- Work, travel, study, and live anywhere in the USA
- No language or professional experience is required
- Secure your family’s future
- The investor, their spouse, and their children count under one green card. This means that they can all become lawful permanent residents in the USA.
- Access to the US education system
- Access to the US social security system and childcare services
- Access to Medicare
- No visa sponsor is needed
We’ll delve into some of the key immigration benefits of the EB-5 Visa in the section below.
1. A profitable investment
In certain cases, the EB-5 investment can lead to a future monetary profit and provide an income for the investor. However, usually, the only outcome of the EB-5 Visa is for the investor and their family members to get green cards to the USA, but the right investment has the potential to result in additional financial benefits.
2. Permanent residency
Immigrant investors can apply for full permanent residency in the US after two years of overseeing their investment in the EB-5 Investor Visa. They will need to do so by filing the I-829 application. If it is approved, the investor, their spouse, and their children can live in the USA permanently.
There is also the possibility of obtaining US citizenship further down the line. It is best to check with the citizenship and immigration services in the USA, but this usually takes five years under US nationality immigration law. Note that you will need to file income tax returns with the US Internal Revenue Service (IRS).
3. Freedom to work, travel, study, and live anywhere in the USA
In line with our previous point, the EB-5 Investor Visa allows you to reside in the US. While other visa types may have more strict requirements for where you can live and work, and if you fail to meet these requirements, you can lose your status, this is not the case with the EB-5 Visa. You’ll be able to enjoy the ability to live and work wherever you want in the USA, from the coast of California to New York City.
4. Access to the US education system
The children of foreign investors who have applied for the EB-5 Investor Visa can reap the benefits of the world-class education system in the USA. Additionally, as US residents, they may be able to attend universities and colleges at lower rates.
5. Access to social security
Living and working in the USA, you will also need to pay taxes, making you eligible for social security credits.
However, to qualify for social security services, you need to work in the USA for a minimum of ten years. Benefits include retirement payments, survivor’s benefits, and disability benefits.
You will also be required to have an SSN (Social Security Number). You can apply for one when completing the visa application or once you get the EB-5 Visa at a Social Security office. You will then receive your personal SSN by mail at your US mailing address after a few days of requesting the number.
6. Childcare services
Foreign investors who apply for the EB-5 Visa can benefit from childcare services. Plus, you are also eligible for foster care and adoption assistance. For example, the Children’s Health Insurance Program (CHIP) is very good for children who do not qualify for Medicaid, where their parents are either too high for this program or too low to get private health insurance.
7. Access to Medicare
Once you get your hands on your EB-5 Visa, program participants can become legal residents in the USA. As such, you’ll have access to Medicare. It is intended for persons over the age of 65 or people that have qualifying disabilities. You must have paid Medicare taxes for at least 40 quarters.
If you have done so, there are different types of Medicare that you can qualify for:
- Part A: Major procedures, such as surgeries or hospitalizations
- Part B: Visits to the doctor, lab work, X-rays, etc.
- Part C: Includes some facilities from Parts A and B, along with additional coverage, such as dental and visual facilities
- Part D: Includes prescription medication
If you have worked 40 credit hours, you won’t have to pay for Medicare Part A. You will, however, have to pay for Medicare Parts B, C, and D.
Also, you can register for Medicaid, a health program for elderly persons, disabled persons, and low-income individuals. Under this, two types of services are given, Emergency Medicaid and Full-Scope Medicaid.
8. No need for a visa sponsor
The EB-5 Investor Visa applicants do not need any American citizen or group to sponsor them during their application process.
A Step-by-Step Guide to the EB-5 Visa
Take time to do your homework on the process of obtaining the EB-5 Visa. Understand your investment and the direct EB-5 investment options open to you. Bear in mind that the entire process can take up to eight years.
- Select your investment route
Choose from qualifying EB-5 investment projects that meet the EB-5 program requirements. Consider two outcomes: (1) Acquiring residency in the USA and (2) return of capital. Once you decide on a project, reserve a spot in the New Commercial Enterprise. Additional advice would be to hire an immigration attorney to conduct a due diligence check on your desired project. Alongside having an experienced immigration attorney on your side, EB-5 investment companies can help with determining good investment routes for you.
Send your investment to escrow and submit your I-526 petition. Approximately ten days after this date, you will receive a receipt notice from the USCIS (the body that processes your investment) that will confirm that they have received your case. The date from which they receive your case is referred to as your official priority date.
- Receive conditional residency
Given that you pass the visa interview process with the Visa Consular, you will then receive a temporary immigrant visa which will be stamped on your passport. With this stamp, you and your family will be able to move to the USA and apply for green cards. This card is valid for a two-year period.
During this timeframe, you must meet all the conditions of the EB-5 program, including creating ten jobs with your investment, having your money classified as at-risk throughout the two-year conditional residency period, and residing in the USA for at least a year. If the USCIS deems you eligible to receive your money back at the end of the conditional period, then your money is normally no longer considered at-risk.
- Conditions are removed and full residency is attained
In the last 90 days of your conditional residency status, your lawyer will file your I-829 petition. The application provides proof that you have fulfilled all the requirements of the program. Once you have completed your temporary residency, you are eligible to receive your investment back. After this, you can live permanently in the country with a permanent green card.
Processing Time for the EB-5 USA Visa
The road to permanent residency through the EB-5 USA investment visa takes, on average, four to six years, from choosing your project to securing permanent residence status.
1-3 months: Begin your research and your EB-5 journey
10 months-2 years: Wait for application approval
3-6 months: I-526 accepted, priority date obtained, apply for a conditional green card
2 years: Start conditional residency
24 to 30 months: Apply for permanent residency
As the documents required for filing are extensive, we highly recommend seeking help from a specialist consultant to assist you with your EB-5 Visa application. The documents will vary depending on if you are investing in a Regional Center program.
Project documentation for an EB-5 immigrant investor
- Proof that the main applicant has invested in a designated Regional Center, if applicable. A letter from USCIS should be attached, with Form I-526 designating the Regional Center. Your investment in a business enterprise must match the geographic area specified in this letter.
- Evidence, if applicable, that your business has been set up in a TEA
- Proof that the investment in the Regional Center will generate at least ten direct or indirect full-time jobs, if applicable.
- Copy of passport (current and expired) and Form I-94
- Copy of family member passports (all pages)
- Evidence that you have invested or are in the process of investing the amount required ($1,050,000 or $800,000)
- Household registration
- Copy of any previous immigration applications
- Certified copies of any judgment, pending governmental civil or criminal actions, or private civil actions against the petitioner from any court in or outside the country within the past 15 years.
- Proof of business ownership
- Copy of any and all business licenses
- Last five years of tax returns (both business and personal)
- Last five years of bank statements
- Evidence of other sources of capital
- Financial statements for each business
- Evidence that the investment funds were obtained through lawful means
Conditional permanent resident status card
- Evidence that a commercial enterprise was created, like federal tax returns
- Documentation that the new commercial enterprise received the petitioner’s capital investment
- Documentation showing the commercial enterprise was maintained for the entire conditional residency period of two years.
- Proof that at least ten full-time jobs were created according to the business plan, as per payroll and tax records
- Biometric documentation, including fingerprints, a photograph, and signature
- Legal documents pertaining to the applicant’s criminal history (if applicable)
All documents in a foreign language must be accompanied with a full English language translation. This needs to be certified by a competent translator.
Unless an original document is specifically required to be filed with an application or immigrant petition, a photocopy may be submitted. Original documents submitted will remain a part of the record, even if the submission was not required.
An EB-5 immigrant investor is automatically considered a US resident alien for tax reasons. This essentially means that all income from the US and elsewhere in the world is subject to US taxes.
Just in case, anyone that is planning to pursue an EB-5 Investor Visa should make a note of the days that they are physically present in the USA by taking the Substantial Presence Test. This will establish whether you are a US tax resident based on your physical presence in the country.
Global Citizen Solutions offer a service tailored to your specific needs and requirements. Our team of experts will work diligently from start to finish, ensuring a successful application. Professionalism and integrity are at the core of all we do.
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