EB5 Visa Requirements: Your Key to U.S. Investment Immigrationt

Introduction

The EB-5 Visa is an immigrant visa classification that grants permanent residence status to qualified foreign investors, their spouses, and unmarried children under the age of 21.

The EB-5 program was first introduced in 1990 to allow immigrant investors to obtain permanent resident status in the U.S. The investors can make a direct investment in a specific business which will create jobs or invest through approved regional centers.

Major EB5 Visa Requirements:

Investment in Targeted Employment Areas (TEAs)

The EB-5 programoffers investment opportunities in a targeted employment area (TEA), which is either a rural or high-unemployment area that must have an unemployment average of at least 150% of the national unemployment rate of the U.S. On the other hand, a rural targeted employment area is an area located outside a metropolitan statistical area (MSA) and has less than 20,000 in population.

While rural TEAs maintain a consistent designation, high-unemployment TEAs change based on the census and moving employment rates; hence once must take into account the most recent census datato ensure the ongoing qualification.

Investment in a New Commercial Enterprise

In a direct EB-5 investment, the investor invests the funds directly in a new commercial enterprise (NCE), which is the entity that will create the requisite jobs.

 A NCEt. is one that operates for-profit within the U.S. It can be any type of business structure such as a LLC, corporation, a partnership, sole proprietorship, trust or others.

In the EB-5 regional center route, the investor acquires equity in an investment fund entity, affiliated with a regional center. This fund entity will then buy equity in, or loan the EB-5 money to the job-creating entity (JCE). The JCE deploys the investment capital into a project which creates employment.  Direct, indirect and induced jobs created under this model can be counted toward the minimum 10-full time job creation requirement imposed by the regulations.

Investment amount

The minimum investment amount to qualify for an EB-5 Visa depends on the area where the investment will be made. If the investor chooses to invest in a TEA, the minimum is $800,000 USD. Meanwhile, for areas outside the TEA, the minimum investment capital is $1.05 million USD.

Further, the investment funds should be in an NCE as approved by the USCIS, and the investor shouldn't expect the guarantee of its return as the money should be "at risk".

Source of funds

The US government requires detailed documentation of the source and path of funds.  The burden lies on the investor to show that their funds are obtained through lawful means and and to document the path and trail of the funds from the source/s. EB-5 funds can be in the form of salaries or wages, business profits, savings, loans, inheritance, or gifts.

Salaries or Wages

Salaries or wages are income from employment and include overtime pay, pensions, bonuses, and allowances. You can submit tax returns for multiple years, a letter from your employer stating your job description and salary, and pay slips to show the lawful means of your earnings.

Business Profits

These funds are sourced from "at risk" business venture that exceeds the business' expenses and taxes. You can submit a copy of the deed of sale and bank statements evidencing the transfer of money from the buyer to your account to confirm the legality of the source.

Gifts

Gifts are voluntarily given without payment or consideration. You can submit a signed document from the donor that states they're not expecting any consideration for the gift. There should also be additional evidence showing how the donor acquired the funds, information about the individual, employment verification, and so on.

Loans from financial institutions or an individual

A loan is a form of debt incurred by a financial institution or an individual. It must be secured by assets other than those of the EB-5 corporation. To prove that the loan was properly obtained, you can submit tax declarations, tax returns, and other relevant documents.

Inheritance

An inheritance refers to transferred assets from a deceased individual. It can come in the form of cash, investments, real estate, jewellery, and even art. You would have to submit proof of the relationship between you and the deceased if the inheritance along with probate documents, will, bank statements, and other relevant proof to evidence the legitimacy of the inheritance.

Job Creation

The EB-5 visa requires that the investor must create 10 full-time jobs for at least 10 qualified U.S. workers within 2 years from receiving their conditional permanent resident status. The qualified U.S. employees should be U.S. citizens, lawful permanent residents,or other immigrants who are allowed to work in the U.S. such as conditional residents, asylees, and refugees.

The jobs created from an EB-5 investment can be direct, indirect, and induced jobs. Direct jobs result from direct investments, from an enterprise created by the capital of the investor It pertains to the general work of the business, providing either services or products.

On the other hand, with the EB-5 regional center route, indirect and induced jobs are created through regional centers. A regional center is either a private or public economic unit that promotes the economic growth of the U.S., focusing on job creation than the enterprise itself.

Indirect jobs are created outside of the NCE but a arise as a result of business operations; basically, these are jobs created by other businesses that are formed  due to the economic growth of your business. Induced jobs, on the other hand, resulted from the creation of investment in the broader community due to the spending from the new enterprise and its employees.

Evidence of Job Creation

The USCIS requires that the EB-5 investor’s investment create 10 full-time jobs for qualified U.S. workers within 2 years of receiving their conditional permanent residency. You are required to show evidence that your investment has resulted in the creation of 10 full-time jobs by direct employment if you made a direct investment or 10 indirect or induced jobs if the investment is via a regional center.

Role of a Regional Center

An EB-5 investor has the freedom to choose whether to make a direct investment or an investment through regional centers. Regional centers are established to stimulate the growth of the U.S. economy, creating investor pools and introducing these investors to businesses that need funding.  Regional center are US government licensed agencies that pool investors and find EB-5 projects to invest their funds. Regional centers collaborate  with developers to fund projects suited to the EB-5 job creation requirements. 

There are two entities involved in this kind of investment: 1) The New Commercial Enterprise, which is the entity invested in, and 2) the Job Creating Entity, which is the entity that invests or loans EB-5 funds to create jobs.

Required Documents for an EB-5 Visa Application

There are different documents that you must submit for your application for an EB-5 Visa, which include:

• A copy of your and derivatives’ passport;

• Birth, marriage, and divorce certificates;

• Household registration;

• Proof of any prior to immigration applications;

• Proof that you have invested or are in the process of investing the minimum investment funds;

• Certified copies of any court judgment, pending administrative, civil or criminal actions against you from any court in or outside the U.S. within the past 15 years;

• Proof of business ownership;

• A copy of the business license;

• Business organizational documents;

• Bank statements and tax returns for the last 5 years;

• Proof that shows other sources of capital;

• Financial statements for each business; and

• Proof that the investment was obtained through lawful sources.

EB-5 Visa Benefits

As we have said, an EB-5 Visa grants permanent residence status (green card) to an investor. There are several advantages of this program:

• Streamline visa processing for the investor and their family members. The EB-5 visa is typically granted faster compared to other immigrant visa classifications, which generally have long wait times and backlogs

• No employment certification or job offer is required. Compared to other visa classifications, the EB-5 visa doesn't require the applicant to secure a job offer or an employment certification.

• Freedom to work and live in the U.S. The investor can reside and work anywhere in the U.S.

• Direct pathway to permanent residency and citizenship. The investor and their eligible dependents can apply for U.S. citizenship after maintain the lawful permanent resident status.

• Educational opportunities. The investor’s family has access to educational opportunities also available to U.S. citizens.

• Global mobility. The investor has increased mobility when travelling internationally, as the green card provides visa-free or visa-on-arrival access to multiple countries around the world.

• Social benefits. The holders are eligible for certain social benefits subject to meeting the requirements.

• Business investment flexibility. The EB-5 visa holders can acquire businesses, diversify their investment portfolio, and participate in other economic opportunities in the U.S.

• Voluntary net worth disclosure. The investor is not obligated to reveal their net worth, giving them privacy and financial discretion.

• Minimal involvement in the process. The investor doesn't need to be engaged deeply in the process, since the focus is on their investment and its impact on the U.S. economy rather than their qualifications or active participation.

EB-5 Visa Application and Process

While applicants are allowed to make their applications without the need for a lawyer, an immigration lawyer can be of great help. Here at Davies & Associates, our immigration lawyers can not only make the EB5 Visa process easier for you and help each step of the way, but also help increase your chances of an approval.

Here's a brief overview of the EB-5 process:

Step 1. Before concluding your agreement with a lawyer, preliminary due diligence is conducted by the Anti-Money Laundering officer to identify investment risks and corresponding solutions.

Step 2. You will then choose an investment project. There are specialized EB-5 businesses that allow you to invest in approved projects, and you must complete the transaction through a regional center.

Step 3. You will then need to gather or collect the relevant documents for your application. Any document bearing foreign language must be accompanied by an English translation certified as accurate and complete by a translator.

Step 4. You will then have to fulfil the minimum investment requirements, depending on your chosen area of investment.

Step 5. You will now have to file the relevant petition forms along with your documentation showing the source and path of funds, among others with the USCIS (United States Citizenship and Immigration Services)

Step 6. USCIS will adjudicate your petition.

Step 7. Once your petition is approved by the USCIS, you can file for adjustment of status if you are in the US in lawful visa status or submit your immigration visa application with the U.S. Embassy or Consulate Upon approval of your adjustment of status in the US or after the successful conclusion of the visa interview at the consulate, you and eligible family members will be granted a conditional green card.

Step 8. Before the expiry of your conditional green card, you are required to file a Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) with the USCIS to remove the restrictions for obtaining permanent residence.

For the full EB-5 visa process, you can also check out our article here.

Conclusion

The EB-5 Visa affords any investor multiple opportunities. Investors are given the chance to diversify their investment portfolio. Other than this, they are also given a direct path to a lawful permanent residence status in the U.S. together with their spouse or unmarried children under the age of 21.

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