EB-5 Application Process

What is EB-5 Program?

The EB-5 visa is a legal document issued by USCIS for investors interested in getting their hands-on Green card through business opportunities. This visa provides permanent residency to the applicant, provided he underwent the legal proceedings and fulfilled all criteria. The applicant needs to reside at least 6 months every year in the USA. 

Post visa approval, applicants can also get residency for their spouse and unmarried children below 21 in the USA. As a Green card holder, the applicant will have access to the U.S. education system, the right to work, live, retire and avail the profits on your investments. Parents are not considered immediate relatives.  

Eligibility For EB-5 Program

The qualifying condition for this program is as follows-

1. An EB-5 investor must qualify the “at-risk” condition for the capital, leading to 10 full-time positions for U.S. citizens. 
2. An investment of $1.8 million or more (or at least $900,000 in target employment areas or high employment areas) 

The applicants must invest in a commercial enterprise which is a profit-generating entity that conducts lawful business practices. These commercial enterprises include-

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

*By definition, a commercial enterprise consists 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.

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

Guidelines For Investing In A New Business 

1. Invest or must be in the process of investing up to $1,800,000 or at least $900,000 in a designated “Targeted Employment Area.
2. The investment must benefit the U.S. economy by proving the goods and services to the domestic markets.
3. The new business must create 10 jobs for U.S. citizens directly or indirectly.
4. The capital investments need not necessarily be cash but may involve stocks, bonds, assets the applicant owns and is liable for to secure the indebtedness.
5. The petitioner must be involved in management activities directly or indirectly.

Guidelines For Investing In An Old Business 

1. The business should be running for at least 2 years and recurred a net loss 12 to 24 months before filing the petition. 
2. The total loss must be 20% of the net business worth.
3. The invest must retain the position of previous employees as there were before acquiring the business.
4. The applicant must be a part of the day-to-day management of the business.
5. Invest or must be in the process of investing up to $1,800,000 or at least $900,000 of investment in a designated Targeted Employment Area.

Can You Apply For A Loan?

It can be challenging to collect the capital, and for this reason, a loan qualifies as a source of funding. You can quickly move forward with your petition with a properly structured loan, provided you qualify for the additional terms and conditions. Unsecured loans are not acceptable. 

Here is how you can present your case-

1. While you are not applying through the regional center, you should not give an impression that in the future, you are too leveraged to meet the repayment schedule or might need to give up the significant shares of one’s income to the loan.
2. In a year until your I-526 petition is processed, you will be examined to make sure that you have paid the installments on time

Your investment capital should come from legitimate sources. These sources might include-

• Salary reports
• A letter from previous employers that verifies one’s previous salary
• At least five years of business income tax returns
• Other official business documents, including registration documents, share certificates, and articles of incorporation
• Bank account statements for the business
• Personal bank statements
• Personal tax returns for at least five years 
• Loan documents
• Copies of judgments or liens

The USCIS authorities will carefully examine your documents, and even a minor mistake can lead to disqualification of your application.

When Will You Get Your Money Back?

Investors often think that they will get their investment back in 5 years, but that is not the case. As with every business, the investor has made equity investments in NCE (New Commercial Enterprise), which is making the loan. The profits depend upon the repayment of the loan by the JCE (Job Creating Enterprise) and the liquidation of the NCE by the manager.

An investor should understand the conditions of the JCE loan payment and make notes about when the balloon payment begins, when the loan is pending, the scope of loan extension, etc. There may also be a possibility of reinvestments to run and expand the projects. To understand when the investor will get their money back, they will have to understand the contract signed with NCE.

The amount invested will always be at risk considering that the capital is invested in starting a business and generating a job. It should never be kept in the bank and must fulfill the condition of ‘At Risk” for the conditional residency. One must remember that you might not get your visa or investments even if you have invested the amount, and yet the business fails to grow. 

What Are EB-5 Regional Centers?

Regional centers are approved by the USCIS authorities, which work with the foreign investors seeking Green card who invest in the commercial enterprises as approved by Regional centers. Unlike direct investments, the regional centers allow the investors to pool the money and invest it in job-creating models as suggested by the regional center’s team. The regional center’s authorities are responsible for performing the ground research on a project and ensuring that your investments fulfill the USCIS criteria.

The Process Of Filing For EB-5 Visa

1. Find a project for investments- Select a project which increases the likelihood of getting your Green card and investments back while you fulfill the conditions required for an E-5 visa.

2. Arrange the funds and file the I-526 petition- Apart from the decided amount, you will be required to pay some additional fee as document charges, medical fee, etc. After that, your attorney will file I-526 applications on your behalf, stating your eligibility. It will also show that you are investing or in the process of investing the amount.

3. Get 2-year conditional residency- Post-approval of the I-526 application, you will attain 2 years of conditional permanent residency, after which they will have to file for unconditional residency. For this, you need to show that your business is thriving as planned to the authorities. If you are living in the USA, your attorney will file the I-486 form. If you are living abroad, your attorney will file DS-260 for status adjustments. During the 2 year residency period, the person has to be present in the USA physically.  If they reside outside the USA for more than 1 year, they should get a re-entry permit. You can file for unconditional residency status 3 months before the expiry date of your conditional visa.

4. File for unconditional residency and I-826 petition process- The final step is to become the unconditional permanent resident in the U.S. by filing for the I-826 petition. This application will display that the applicant has fulfilled all the conditions of the EB-5 visa as per USCIS. Upon successful approval of the I-826 petition, the applicant and his immediate relatives will get the 10 year Green cards that can be renewed. 

Benefits For EB-5 Program

Some benefits of the EB-5 program are-

1. Get the Green card for yourself and your immediate family
2. It is a quick way to gain U.S. citizenship
3. You can get all the benefits as a U.S. resident like studies, job, and work opportunities
4. You can start a business in America without the immigration restrictions
5. No language or professional documents required

Fee Distribution

The fee is non-refundable in all circumstances, and it should be paid individually for every intending migrant irrespective of their age. Here are some services where you will have to pay the fee-

• Filing of Form I-526, Immigrant Petition by Alien Entrepreneur (USCIS charges this fee)
• Processing an immigrant visa application, Form DS-260 (see Note below)
• Medical examination and required vaccinations (costs vary)
• Other costs may include translations, photocopying charges; fees for obtaining the documents you need for the immigrant visa application (such as passport, police certificates, birth certificates, etc.); and expenses for travel to the U.S. Embassy or Consulate for your visa interview. Costs vary from country to country and case to case.

NOTE– Fees should not be paid to the NVC or paid at the U.S. Embassy or Consulate where you have your visa interview unless specifically requested. Applicants will be provided with instructions by the NVC on where and when to pay the appropriate fees. Do not send payments to the NVC’s address in Portsmouth, New Hampshire.

Documents Required For Visa

Here are some documents required for the visa applications-

1. Passport
2. Fill form DS-260
3. 2 2X2 photographs
4. Financial capital
5. Completed medical documents
6. Bringing your civil documents and translated documents where ever necessary

Retrogression Of Visa

Many countries where the demand for a visa is more than the allotments are suffering from multiple backlogs and face retrogression leading to long delays. An alternative to this is an E-2 nonimmigrant investment visa. 

It requires less investment and can be allotted quickly. E-2 visa is issued only to individuals from the countries having a treaty with the U.S. These countries are Grenada, Turkey, and Montenegro. However, unlike the EB-5 visa, it can not lead to a Green card.

Do You Get Your Investment Back If Your Application Gets Denied?

An I-526 refund guarantee can be offered to the investors by the NCE, and the terms of the refund can vary depending upon the guarantor, which will be included in the contract. It is crucial to identify if the guarantor has the capacity and means to refund your investments. 

Some NCEs will also hold back a small sum up to 10% to 20% to pay it to the denied investors, but this can only satisfy a portion of NCE investors.