EB-5 Immigrant Investor - Fakhoury Law Group, PC

The EB-5 Immigrant investor program is administered by the USCIS. This program allows immigrant investors, their spouses, and children to obtain lawful permanent residency status if the investor makes the necessary investment in a commercial enterprise in the United States and plans to create or preserve ten (10) permanent full-time jobs for qualified U.S. workers.

Eligibility

To be eligible for the EB-5, an immigrant investor must invest in a new commercial enterprise (NCE), which means any for-profit activity formed for the ongoing conduct of lawful business. The investment must be a minimum of $1,050,000 USD or $800,00 (for designated Targeted Employment Areas). Under the EB-5 program, capital from multiple investors can be pooled into regional centers for investment in economic development projects approved by the USCSIS within a defined geographic region.

Investments made through the EB-5 program must be “at risk” in the same way that investments in stocks or equity funds carry an inherent risk. There is no guaranteed financial return.
The immigrant investor is required to invest his or her own capital. The petitioner must document the path of the funds to establish that the investment was made, or is actively in the process of being made, with the immigrant investor’s own funds.
EB-5 investor must be able to demonstrate a lawful source and path of funds to be invested such as tax returns and real estate records. EB-5 investment funds are subject to U.S securities and anti-fraud laws and regulations.
The investment must relate to the creation of at least ten (10) full-time jobs.
Investors can use a promissory note as capital for the EB-5 investment, as long as the immigrant investor is personally and primarily liable for the promissory note debt and his or her assets adequately secure the note.
If the investor’s application is approved by USCIS, the EB-5 investor receives a conditional visa that is valid for two years. In order to receive a permanent residency visa, the investor must demonstrate that the legally required economic benefits flowing from their investments have been achieved.

What is a USCIS Regional Center?

An EB-5 regional center is an economic unit, public or private, in the United States, involved with promoting economic growth. USCIS designates regional centers for participation in the Immigrant Investor Program.

What is a Targeted Employment Area (TEA)?

A targeted employment area (TEA) can be, at the time of investment, either a rural area or an area that has experienced high unemployment (defined as at least 150% of the national average unemployment rate). If the investment is in a TEA, the minimum investment is $800,000.

A rural area is any area other than an area within a metropolitan statistical area (MSA) as designated by the Office of Management and Budget (OMB) or within the outer boundary of any city or town having a population of 20,000 or more according to the most recent decennial census of the United States.

A high unemployment area consists of the census tract or contiguous census tracts in which the new commercial enterprise is principally doing business, which may include any or all directly adjacent census tracts, if the weighted average unemployment for the specified area based on the labor force employment measure for each tract is 150% of the national unemployment average.

The Application Process

Step 1 – Filing the Eligibility Petition

If the new commercial enterprise (NCE) seeks funding from multiple investors, it must distribute offering documents including a Private Placement Memorandum (PPM), subscription agreement, the NCE’s organization documents, escrow agreement, economic impact report, business plan, etc.
After committing funds to the NCE, the investor must file an I-526 petition with the USCIS to determine their eligibility to participate in the EB-5 program. I-526 processing times can be found here: https://egov.uscis.gov/processing-times/
The I-526 petition must include information on the lawful source and path of funds to be invested through the EB-5 program along with other information documenting how the funds will be invested to create jobs as required by the program. The application is subject to eligibility review and the USCIS can issue a Request for Evidence (RFE)

Step 2 – Determining Admissibility and Granting of Visas

Once the I-526 petition has been approved, the immigrant investor is place on an immigrant visa waiting list, according to the date of the I-526 filing (also called a priority date).
When the priority date becomes current, the immigrant investor can apply for Conditional Permanent Residence through either the Immigrant Visa process, if the investor resides outside of the US or through Adjustment of Status, if they reside in the United States.
The investor must file either a DS-260 visa application with the Department of State (if they reside outside of the US) or an adjustment of status petition (I-485) with USCIS (if they reside in the US).
Approved petitions for immigrants residing outside the United States are sent by USCIS to the National Visa Center (NIV). The NVC then requests support documentation from the immigrant applicant before sending the complete file to the appropriate U.S. Embassy or Consulate.
Consular affairs officers at the appropriate U.S. Embassy or Consulate determine if the applicant is admissible to the U.S. and whether or not a visa will be granted.
Applications for adjustment of status are sent to USCIS for review. USCIS can conduct its own independent investigation and can obtain assistance from the State Department for in-country investigations.

Step 3: Getting the Conditional Visa

If the applicant is found to be admissible to the U.S., a conditional visa is granted allowing the applicant and family to reside in the United States for two years.
The immigrant investor must provide evidence of the actual undertaking of business activity. Merely establishing and capitalizing a new commercial enterprise and signing a commercial lease are not sufficient to show that an immigrant investor has placed his or her capital at risk.
Before the end of the two-year period, the immigrant must file an I-829 petition documentation that the investment through the EB-5 program has created a minimum of 10 U.S. jobs.
If the USCIS confirms the job creation, the I-829 may be approved, lifting the conditions on the visa.
Five years after being granted permanent residence on a conditional basis, the EB-5 investor and family may apply for naturalization as a U.S. citizen (Form N-400). Form N-400 may be filed, even if Form I-829 is still pending.