EB 5 Visa
FAQ

What Routes Are Available to Prospective EB-5 Investors?

The EB-5 immigrant investor program allows two routes for investors:

1. Direct EB-5 Investment:

In a direct investment project, the EB-5 petitioner invests capital in a new commercial enterprise that creates a minimum of 10 direct,full-time qualifying jobs. A direct job is defined as that in which the employee is a W-2 employee of the new commercial enterprise.

This route is commonly taken by investors who want to start and operate their own business in the U.S., invest in a startup company, or buy into an existing enterprise. Investors that choose this route would likely invest in an operations-based business (as opposed to real estate projects) due to the limited scope of qualifying jobs.

It is important to note that for any EB-5 investment, the requisite jobs must be created as a result of the investment. So, for those choosing the direct EB-5 route and investing in existing enterprises, be sure that the business has a plan, and the likely prospect, of creating additional jobs with your investment.

To ensure your petition is properly prepared for submission to USCIS, it is important to work with an experienced immigration attorney, business plan writer, and tax consultant.

2. Regional Center EB-5 Investment:

A Regional Center is an entity that is designated by USCIS to promote economic growth in a specific region by sponsoring and managing projects that are funded with EB-5 capital. As compared to the EB-5 Direct Investment route, which is typically used to funnel investment into individual operating businesses, Regional Centers are used to pool investment from multiple EB-5 investors to fund larger projects, such as commercial and residential real estate development, hotel developments, infrastructure projects, and manufacturing facilities. The investment and job creation requirements are the same in both the Direct and Regional Center routes, but the way funds are structured differ, and Regional Center projects can count both indirect and induced job creation, in addition to direct jobs.

Approximately 90-95% of invested EB-5 capital has been invested through Regional Centers. This model is popular because it offers a turnkey investment solution for investors:

Investors are not actively engaged in day to day management of a business

Projects can count indirect and induced jobs, as well as direct jobs

Regional Centers are tasked with tracking data and statistics regarding job creation, which makes process of proving job creation at the final phase of the process easier for investors

Most Regional Center projects are located in a Targeted Employment Area and therefore qualify for the lower investment amount

Prior to investing, I conducted extensive research into both routes and found that the Regional Center option was the better route for me because it allowed me to have minimal involvement in the new commercial enterprise and continue my work.

Because of the knowledge I have obtained through my research and experience, I can guide you through the process for either route.

What Parties are Involved in the EB-5 Process?

The EB-5 process can be complicated, and working with experienced advisors and professionals ensures that you avoid common pitfalls that could, at best, extend processing times and, at worst, lead to a denial. The various professionals that typically collaborate on any EB-5 petition include:

1. EB-5 Advisor:

An EB-5 advisor can serve as a quarterback for your EB-5 journey by vetting service providers, engaging in due diligence on projects, and working with you one-on-one to ensure a smooth process. As a FINRA registered Agent I interact with Regional Centers, EB-5 immigration attorneys, securities attorneys, economists, and business plan writers on a daily basis. I constantly conduct due diligence on projects and I remain cognizant of changes in EB-5 policies and regulations. As part of my services, I offer recommendations to investors detailing the pros and cons of each project. If an investor chooses the Direct EB-5 Investment route, I not only provide guidance through the process of successfully establishing the business, but also provide access to my network of professionals to ensure the EB-5 petition is approved by USCIS without a hitch.

2. Immigration Attorney:

Your immigration attorney will assist with immigration planning; develop a source of funds strategy and help compile the associated documentation; and ensure that you remain in compliance with immigration regulations. Your immigration attorney will work with you throughout the process, starting with the I-526 petition and ending with your citizenship application. As the EB-5 process involves multiple intertwined steps, it is crucial that you choose an experienced attorney with in-depth knowledge of the complexities of EB-5 law.

3. Regional Center/Investment Issuer:

The Regional Center manages your investment throughout the EB-5 process. It is important to thoroughly vet the Regional Center by asking in-depth questions about prospective projects and the Regional Center’s track record, and validating the information with our advisor and attorney. As your EB-5 advisor, I can analyze and compare Regional Centers and their sponsored projects so you can select the best fit for your immigration and investment goals.

If you choose the EB-5 Direct route, you will not work with a Regional Center and instead will require additional service providers to complete a comprehensive petition. These include:

4. Business Plan Writer:

The business plan is a crucial aspect of the I-526 petition as it is the document that USCIS uses to determine whether the proposed business will meet the job creation requirements. If you are pursuing an EB-5 visa through the Regional Center route, the associated Regional Center will develop a business plan for each sponsored project that is USCIS compliant, as well as an economic report that projects indirect and direct job creation using approved methodologies. If you are pursuing the Direct EB-5 route, you must furnish your own business plan for the I-526 petition. EB-5 business plans must meet specific criteria set forth by USCIS and are more complex than standard business plans. It’s important to work with a business plan writer that has extensive experience in the EB-5 industry and a successful track record of approvals with USCIS. As your EB-5 advisor, I can connect you with the industry’s leading plan writers.

5. Economist:

Economists develop Economic Impact Reports and can also conduct analyses of project locations to determine whether they are Targeted Employment Areas and, thus, qualify for the lower investment amount.

Economic Impact Reports are typically only used for Regional Center projects, as they analyze direct as well as indirect and induced job creation (the latter of which can only be counted under the Regional Center model). A comprehensive business plan (complete with direct job projections backed by cited industry benchmarks and market data) is sufficient for Direct EB-5 projects.

In the Direct EB-5 route, an economist is needed to conduct an analysis of a project’s location to ensure that it qualifies as a TEA. New regulations that went into effect at the end of November 2019 changed the definition of a TEA, making certain locations more difficult to qualify. An economist can run an analysis of unemployment and labor force data to determine whether a location does or does not qualify. This is important during the project planning process and is also documentation that must be submitted with an I-526 application.

6. Securities Attorney:

A securities attorney can develop operating agreements and company formation documents for new ventures. He or she would also be key in assembling private placement memorandums and offering documents for ventures that are raising capital.

Regardless of the route you plan to take to obtain your EB-5 visa, I can put together the right team to handle your case.

How Long Does it Take to Get My Green Card After Making My Investment?

While timelines can vary wildly, USCIS is currently taking two to three years (on average) to adjudicate an I-526 petition. For nationals of China and Vietnam, the timeline is longer due to a backlog of EB-5 applicants. USCIS frequently publishes updates on processing times and visa backlogs. Contact us and we can provide an estimated timeline based on your specific case.

What is a Conditional Green Card?

The conditional green card (CGC) is issued after USCIS approves your I-526 petition and you have completed your consular interview abroad or after you have an adjustment of status approved. The CGC is valid for two years from issue and the holder is entitled to all the rights and benefits of a permanent resident. The only difference between a conditional green card and a green card is that the CGC is valid for two years only. Within 90 days before the end of the two years, you need to file form I-829 to remove the conditions on your green card. At this stage, USCIS will check whether the investment has been at risk for at least two years and that a minimum of 10 jobs have been created as a result of the investment.

Can I Work and Travel With a Conditional Green Card?

Yes, conditional green card holders can do everything that a permanent resident is entitled to do. There are no limitations apart from timely filing the I-829 form before the end of the two year anniversary of the issuance of the conditional green card.

What is the Timeline for Removal of Conditions?

Conditional green card holders can apply for a permanent green card by filing Form I-829 90 days before the conditional green card expires (i.e. 21 months after receiving your CGC). USCIS’s current processing time for form I-829 is approximately two years. However, filing the I-829 gets you an 18-month extension of your CGC. Furthermore, you may visit a USCIS service center and get a I-551 stamped on your passport extending your CGC status while the I-829 is being adjudicated by USCIS.

What Can I Do to Prepare to Apply for the EB-5 Visa?

In preparation for your investment, you should focus on two important aspects of the process:

1. Finding a good, reputable project with a proven track record to invest in; and

2. Gathering the USD $900,000 (or $1.8 million for projects not in a TEA) prior to investment and ensuring the source of your investment funds is properly documented. Your immigration attorney will assist with this.

What Qualifies as a Good EB-5 Project?

In order to qualify as an EB-5investment, the investor’s funds must be “At-Risk”. As such, there can be no guarantee of a return on investment. But this does not mean that an EB-5 investor must take on unnecessary risk. Working with an experienced advisor can help mitigate that risk.

Key considerations for identifying a solid EB-5 project include:

Project Details:

A project should have a detailed and credible business plan that investors can use to evaluate the fundamentals of the project.

Regional Center and Developer Track Record:

Investors should look at the background of the Regional Center and whether it has sponsored any successful EB-5 projects. Similar scrutiny should be applied to the principals and developers of the chosen project.

Capital Stack and Financial Strength:

When conducting due diligence, investors should look into the developer’s debt:equity leverage ratio to see if they are borrowing excessively to finance the project. Ideally, EB-5 capital should be paired with both developer equity and financing to form a strong capital stack for the project Investors should ask the following question: Can the project survive a recession and still have the ability to pay back the investor their $900,000 at the end of the term?

What Can I Do to Prepare to Apply for the EB-5 Visa?

In preparation for your investment, you should focus on two important aspects of the process:

1. Finding a good, reputable project with a proven track record to invest in; and

2. Gathering the USD $900,000 (or $1.8 million for projects not in a TEA) prior to investment and ensuring the source of your investment funds is properly documented. Your immigration attorney will assist with this.

Do I Need an Immigration Attorney to File My EB-5 Visa?

An immgration attorney is not required, but it is strongly recommended that investors work with an experienced EB-5 immigration attorney to ensure a successful process. EB-5 regulations stipulate that the investor must provide evidence that the funds invested into the project are lawfully sourced. This means that the investor must submit a detailed narrative that is in compliance with immigration regulations and precedent case decisions. Experienced EB-5 immigration attorneys are instrumental in documenting and cataloging the source of funds as well as submitting the appropriate documentation and petitions in each of the three steps to permanent residency:

1. Filing of the I-526 with source of funds;

2. After 526 approval, completing the consular or adjustment of status process; and

3. I-829 filing to remove conditions.

What are Some Risks Related to the EB-5 program?

Financial Risk: Because the EB-5 regulations require funds to be at risk, you could lose some or all of your investment. This risk can be mitigated with an experienced advisor.

Timeline Risk: Not only the investor, but his/her spouse and minor dependents under the age of 21 receive a green card through the EB-5 program. But, due to slow processing times and visa backlogs in some countries, your minor dependents may age out. Planning with an advisor and immigration attorney mitigates this risk.

What is an Accredited Investor?

Many Regional Centers will only allow investors that are accredited investors. In the United States, to be considered an accredited investor, you must have the following characteristics (prior to investing):

Have a net worth of at least USD $1,000,000, excluding the value of your primary residence; OR

Have an income of at least USD $200,000 each year for the last two years (or USD $300,000 combined income if married) and have a reasonable expectation of the same income level in current year.

What is an Exemplar Project and What are Some Benefits of These Projects?

Some Regional Center projects apply for what is called an I-924 Exemplar Approval. Exemplar Approval means that USCIS has reviewed all of the project documents and job creation methodologies and has pre-approved the project for a speedier adjudication. As such, investors who invest in exemplar projects face far less scrutiny as their project documents have already been analyzed and approved by USCIS.

How Many EB-5 Visas are Available?

The EB-5 category receives 10,000 visas per fiscal year. The government institutes a per-country limit for EB-5 visas to ensure that no country gets more than its share. The per-country limit is set at approximately seven percent (7%) of all visas, or an estimated 700 per country. Whatever visas are not used by a particular country are reassigned to countries with higher demand. Since 2015, the demand for EB-5 visas has exceeded supply, and demand from some countries has been higher than others. This has created a backlog for certain countries, namely China and Vietnam. This means that for any given fiscal year, more people are applying for visas than there are visas available for that country, and investors who have submitted form I-526 and received approval are essentially waiting in line for a visa to become available. Countries that have a backlog are in “retrogression” while those countries that are not expected to exceed the number of allocated visas in a given year are “current.”

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