Is It Safe To Apply For An EB 5 Visa Category?

What Is An EB 5 Visa Program?

An EB 5 visa, India program was introduced by USCIS to attract wealthy foreign entrepreneurs to America through a business venture so that they can invest in America and stimulate the economy. 

In exchange for investments and successfully qualifying the requisites of the project, the applicant will be allotted lawful American citizenship. Through this, he and his immediate family can live, earn, study and travel anywhere in America like a lawful US citizen. Also, they can earn on their investments as EB 5 visa entrepreneurs

How To Get An EB 5 Visa?

Here you can find how to apply for an EB 5 visa and whether you fulfill the eligibility criteria. To get an EB 5 visa, the applicant needs to fulfill the predetermined set of criteria as follows.

  1. The minimum investment should be a $1.8 million capital investment in a standard (non-TEA) investment project area/ commercial enterprise or a $900,000 capital investment in a TEA.
  2. The applicant must produce the source of all these funds to ensure it is lawfully obtained.
  3. The applicant should invest in for-profit US commercial organizations.
  4. The investment must create at least 10 full-time jobs for American citizens. It should be done within the 2 years of conditional green card allotment period.
  5. The direct investment will require active management by the applicant.
  6. The regional center can also create jobs directly or indirectly and produce proof that displays the upliftment of the American economy. 
  7. The applicant must fulfill the physical presence requirements essential for the projects. This is 6 months every year to be spent in the USA. 
  8. The amount must be “at-risk”, and the investor should not have any prior criminal record. 

As this criterion gets fulfilled, and USCIS officials approve the project, 2 years after the issue of your conditional residency, your spouse, unmarried children below the age of 21 can also apply for unconditional citizenship in America, individually.

How To Apply For An EB 5 Visa, India Category?

  1. Find your project– The first part of the EB 5 visa program is to find a project that can get approved by US officials and fulfill the EB 5 visa eligibility criteria. Your immigration attorney will help you find a government-approved project or the right business opportunity.
  1. File your petition– To process further, the applicant should add the minimum capital in the escrow account. Your lawyer will file application I-526 as proof of this investment with USCIS. In 10 months to 2 years, you will be informed whether your application is accepted or not. In case of denials, most EB 5 visa regional centers will refund your amount. 
  1. Get your conditional residency– After approval, the next step is to gain your conditional residency. For this, your lawyer will file Form I-485 if you are residing in the US, whereas if you are on foreign land, you will need to file Form DS-260 for the adjustment of status. After this, you will gain a lawful condition US green card for the next 2 years.  During this period, the applicant must fulfill the physical requirement where he can not stay outside of the USA for more than 1 year without a re-entry permit. 
  1. File I-829 and get your unconditional residency– The final step is changing your conditional residency to unconditional residency by filing Form I-829. This application proves that the investor has fulfilled all the criteria necessary for unconditional citizenship. You can avail your permanent green card 22 to 45 months after submitting your application. After this, the applicant’s eligible family members can apply for a permanent green card as they reside in the US. 
  1. Permanent citizenship– If desired, the applicant can apply for permanent US citizenship by the naturalization process. For this, you will need to pass the US History, Civics, and English examinations. At last, you will need to take the oath in the ceremony. 

What Is The EB 5 Visa Processing Time 2021?

An EB- 5 cycle will take about 5 to 8 years to provide you the lawful American citizenship. This also depends on the country of birth, the project you selected, and the changes in the US immigration law.

S. NoSteps of EB 5 Visa, IndiaEB 5 Visa Processing Times
1.Research about your EB 5 visa project1 to 3 months
2.Approval if I- 526 application 10 months to 2 years
3.Conditional residency applications-The applicant is not present in the USThe applicant is present in the US

3 to 6 month
6 to 14 months
4.Starting conditional residency2 years
5.Applying for unconditional residency 22 to 45 month

What Are Some Common EB 5 Visa Investment Option?

There are several EB 5 visa investment options to choose from. Depending upon your requirement, you can invest in a project as follows.

  1. Invest in a new business– You can invest in a commercial enterprise directly or in a government-approved project proposed by regional centers for TEA. The applicant can also avail of the rebate while applying through regional centers. 
  2. Buying a pre-existing business– An applicant can restructure, grow, and reorganized the existing business. However, the mere change in legal ownership will not be enough for qualifying as a project, and the project will be considered a failure.
  3. Investing in a troubled business- A troubled business with a net loss of 20% of its worth in the last 2 years before the applicant has filled his I-526 petition. The applicant will need to invest his capital in the business and ensure that all the jobs before the loss in the last 2 years are being maintained.  10 jobs must be created, preserved, or the combination of two will qualify for the project. The applicant must be active in the project. 
  4. Expanding old business-The investor can expand the old business by increasing its worth up to 40% of the present condition.  
  5. Pooling– You can pool your investment with other partners and form a single enterprise that qualifies for the project. All the investors will be equal participants in job creations and profits. However, the limited partners will not be applicable for American citizenship.

EB 5 Visa Latest News For Applicants 

As per the data received by the USCIS, the processing time for the EB 5 application has been announced by the officials. They are represented by the low end (50%) to the high end (93%) as of March 1, 2021. 

There has not been any movement in dates for petitioners from mainland China. However, those who are not from mainland China and countries without the backlog will have a processing time of 31 to 48 months. Visit the official site for more details. 

Common FAQs answered by EB 5 Visa Attorney

How Can EB 5 Visa Lawyers Help You?

As a foreign investor, you will be involved in complex paperwork associated with the program. A minor mistake in this program can delay your application process for months ahead.

Professional EB 5 visa lawyers will file the petition on your behalf and help you throughout the process of the visa program. An EB 5 visa attorney will start providing his insight right from your research for an investment project until you become a lawful American citizen. 

What Is The Role Of An EB 5 Visa Regional Center?

The regional center is an organization authorized by USCIS which provides various projects to the investors to stimulate the US economy, especially in TEA (target employment area). 

A regional center makes it relatively easy for an investor to meet the criteria as stated by USCIS official for EB 5 visa, India program. Any private/public economic entity that promotes economic growth, creates jobs and increases the domestic capital is called an EB 5 regional center.

As of Jan. 7, 2021, there are a total of 673 approved regional centers by USCIS

Regional center vs. Direct investments

S no.RequirementsRegional centerDirect investments
1.Required investment$900,000$1.8 million
2.Job creationJobs can be implied or made based on the investmentNeed direct creation of 10 full-time jobs
3.Indirect/Direct jobsJobs does not necessarily need to be created by the project in which you are investingIt is ensured by USCIS that the 10 jobs you have created are required in your business
4.Participation in businessPassive participationActive participation
5.Owning businessNot applicableThe applicant holds a significant share in the business

What Does A Commercial Enterprise Consist Of?

As quoted by USCIS EB 5 visa classification, the applicant must invest in a new commercial enterprise that was established- 

  • After Nov. 29, 1990; or
  • On or before Nov. 29, 1990, that was:
    • Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results; or
    • Expanded through the investment, resulting in at least a 40% increase in the net worth or number of employees.

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business, including:

  • A sole proprietorship;
  • Partnership (whether limited or general);
  • Holding company;
  • Joint venture;
  • Corporation;
  • Business trust; or
  • Other entity, which may be publicly or privately owned.

This definition includes a commercial enterprise consisting of a holding company and its wholly-owned subsidiaries if each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

Note: This definition does not include noncommercial activity such as owning and operating a personal residence.

Common Fee Structure

Apart from the mandatory investments, you will need to pay the following fee – 

  • I-526 filing fee
  • I-485 fee: $750-$1,140. This fee will depend on your age. Refer to the USCIS chart to check your charges.
  • Biometrics fee: $85 (if applicable)
  • Affidavit of support fee: $85 (if applicable)
  • Attorney fee – variable
  • Relocation charges for the USA and traveling to the embassy

EB 5 Visa And COVID -19

Amidst pandemic, applicants will not be able to avail of visas for the USA. Similarly, several families will not be able to move to the US. The available visas will not be rolled over for next year, so the ambiguity about the process remains persistent. This is likely to cause rollovers in the EB -5 visa India applications.  

EB 5 Visa Extensions

EB 5 visa program has gone through several short terms extensions in past years. The proposed date for EB 5 visa expiration is Jun. 30, 2021, this time. However, it is expected that the US government will reauthorize the program again to elevate the American economy.

ROI In EB -5 Visa Program

While many developers promote attractive EB 5 visa investment returns within 5 years, this is usually an arbitrary guideline. Remember, the primary focus of the EB 5 visa, EB 5 visa processing time, India program is to gain citizenship. Depending upon the nature of the projects, most projects can not offer ROIs within 5 years. 

If the developers do not offer anything to the investors over the course of 5 to 7 years, the shares of investors increases, and the cash flow remain consistent. For this, it becomes essential that you are reading the terms of the contract carefully. An EB 5 visa attorney will make sure that paperwork is simplified and you can avail of the returns periodically. 

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