What are the two types of EB-5 Visa?
There are two types of EB-5: (a) EB-5 through a Regional Center; and (b) Direct EB-5 where the investment is not made through a Regional Center.
Regional Centers are private companies licensed by the U.S. government to operate a Regional Center. Regional Centers find projects suitable for EB-5 investment purposes. Despite positive changes in 2023, Regional Centers remain largely unregulated and are not subject to frequent government oversight and review.
D&A Warning!
Direct (Stand-Alone) EB-5 cases require a different skill set. A lawyer who has only previously worked Regional Center EB-5 cases is unlikely to have the full set of experience needed to successfully prosecute a Direct (Stand-Alone) EB-5 case.
For a detailed comparison, see Direct EB-5 vs Regional Center EB-5.
Who are the EB-5 Lawyers and Professionals who can assist you?
Various professionals are available to assist you with your EB-5 journey:
EB-5 Lawyer
What They Do: For most clients, the EB-5 lawyer is the single most important advisor. An EB-5 lawyer will guide you through the entire process and help ensure you have the right team of advisors on board. An EB-5 lawyer will also review a project to ensure that it complies with the requirements of U.S. immigration law.
What They Do Not Do: An EB-5 lawyer is an immigration lawyer. They will not conduct due diligence on projects other than to ensure they meet the requirements of the immigration law.
Lending/Finance Lawyer
What They Do: A lending/finance lawyer will be able to review an EB-5 project to ensure that the project is properly structured to protect your legal rights as an investor. Where losses in EB-5 have occurred, it is usually because the project was not properly structured to protect your rights as an investor.
What They Do Not Do: Financial review of projects to ensure that the business plan and the financial forecasts are reasonable and make sense. No lawyer will perform financial stress tests on a project to test the limits of its durability.
Tax Lawyer
What They Do: A tax lawyer will help you plan for the taxation obligations that will fall on you as a U.S. Permanent Resident. EB-5 investors frequently structure their assets in contemplation of a U.S. move.
What They Do Not Do: Enable you to avoid paying taxes that you lawfully owe under U.S. laws.
Independent Investment Advisor
What They Do: A properly licensed and experienced independent financial advisor will be able to help you review your project from a financial perspective. Look for a Certified Financial Analyst (CFA) trained in a major financial institution.
Broker-Dealers
What They Do: Sell investments and earn a commission.
What They Do Not Do: Meaningful financial analysis of your project or any stress-testing.
How can an EB-5 Visa Lawyer Help?
An EB-5 Visa lawyer is an immigration lawyer who specializes in EB-5 law and has a thorough knowledge of the EB-5 program. A number of EB-5 lawyers have extensive experience with the entire EB-5 process and will be able to guide you through each step.
EB-5 immigration attorneys assist you with the entire EB-5 process, including:
- Advising you as to the entire EB-5 process and identifying other professionals
- Documenting your source of funds
- Devising a plan for the lawful transfer of your funds
- Assisting you with immigration due diligence on a related immigration project
- Filing your application using Form I-526/I-526E
- Obtaining your Immigrant Visa and Conditional Permanent Residency in the United States (a “Green Card”) via adjustment of status (Form I-485) or consular processing
- Assisting you with a consular interview when needed
- Filing Form I-829 to convert your Conditional Green Card into a full/permanent “Green Card”
- For those who wish to obtain U.S. citizenship
D&A Alert!
If your funds are being remitted from a country with currency transfer restrictions (such as India, Vietnam, China, Morocco, and Bangladesh) it is critical that you also document that the funds were remitted to the U.S. in a lawful manner.
Where relevant, select an EB-5 lawyer who is experienced with cases involving funds being remitted from restricted countries.
Some EB-5 law firms may also have lawyers experienced with real estate and finance law who may be able to assist you with the following:
- Performing due diligence on your EB-5 investment as to issues of law that impact the safety of your money
- Reviewing the legal provisions of complex inter-creditor agreements that may impact the security of your capital
- Coordinating tax advice from a tax lawyer
- Assisting you with the return of your capital
Once you have chosen a New Commercial Enterprise (NCE) as the subject of your investment, the immigration attorney will help you, the foreign investor, to gain permanent residence along with your dependent family members.
Why do you need a competent EB-5 Visa Lawyer?
Foreign nationals who decide to relocate their family to the United States have made a significant decision involving the investment of a significant amount of money. EB-5 continues to see frequent rule changes and, as a common law country, EB-5 is subject to the interpretations of the courts. Meeting all the requirements of an EB-5 Visa as laid by the United States Citizenship and Immigration Services increases your chance of getting the visa and achieving a permanent residency status.
Moreover, obtaining an EB-5 Visa can be rigorous, long, and complex, and any mistake during your application can cost you not only money and time but also the risk of rejection. With the help of an experienced immigration lawyer, they can guide you throughout the visa application process and increase your chances of getting approved. Further, these lawyers are familiar with NCE developers and can help you locate a reliable regional center sponsor.
Choosing an EB-5 Lawyer (“CORER”) and Questions to Ask
There are a lot of immigration lawyers who provide their services to foreign nationals who want to move to the U.S. However, with the complexity of the EB-5 Visa process, you must engage the services of a lawyer who has the experience and a strong track record.
Since you’ll be trusting your EB-5 immigration lawyer concerning your visa application, you should be careful in screening the lawyer you are going to work with.
Here are some questions you can ask the immigration lawyer so you can assess their services:
Competency
- What awards have you received? Leading EB-5 lawyers are recognized by industry vote in the annual “Top 25” EB-5 lawyer survey.
- Have you ever been subject to any professional disciplinary proceeding or charge of any kind? In the United States, the record of every lawyer is available from the applicable State Bar. While the Avvo grading system may leave some room for improvement, Avvo does check that lawyers are properly licensed and their online record is clear.
- Where did you go to law school?
- How many years have you been practicing EB-5?
- Describe your experience with complex structured real estate investments. EB-5 is a complex structured real estate investment. Your lawyer should not only be familiar with EB-5 but also with how real estate deals are structured and how to make sure your legal rights are properly protected.
- Will you personally be handling all aspects of my case? Make sure that the lawyer you are speaking to will be handling your case and, if not, that you are comfortable with the person who will be handling your case.
Operations
- How quickly will you respond to my questions?
- Can I speak to you by phone as frequently as I wish to with no extra charges?
- Will you monitor my project and act as needed to preserve my capital?
- Will you monitor my project and take actions necessary to preserve my immigration benefits?
- What do you charge for responding to a substantive RFE caused by USCIS error?
Experience
Ask the lawyer to answer certain questions:
- Number of I-526 Petitions have you filed?
- Number of I-829 Petitions have you filed?
- Number of RFEs received on cases you have filed?
- Number of NOIDs received on cases you have filed?
- Have any of the EB-5 cases you have filed been denied? If so, please explain why.
- Number of cases involving applicants from my country?
- What experience do you have documenting funds from my country and documenting that those funds were lawfully transferred under foreign law (if relevant)?
References
- Do you have any references from previous clients? A competent immigration lawyer will have a list of previous clients who have worked with them and who have provided testimonials on the lawyer’s capabilities.
- Ask the lawyer to refer you to a couple of clients who are willing to talk to you about their experience. Ask for clients who have completed the entire EB-5 process and have had their I-829 applications approved.
Conflicts of Interest
Conflicts of interest are common in EB-5. Ask your lawyer if:
- Either they or their firm represent the Regional Center in this project. If so, you are asking the lawyer to perform due diligence on their own work product and potentially sue their own client.
- Which Regional Centers are clients of the firm.
- If there is any issue that might impair their independence.
- Will you confirm in writing that you represent only the investor.
EB-5 Attorney Red Flags 🚩
Avoid lawyers who:
- Guarantee approval or returns
- Push one, or any, regional center(s)
- Refuse to explain fees clearly
- Won’t share prior EB-5 case experience
- Discourage you from independent review
- Are vague about source-of-funds documentation
- Are not experienced with cases involving remitting funds from any relevant country with restrictions on fund transfers (such as India, Vietnam, China, Morocco, and Bangladesh)
Investor Protection Checklist
Before you sign anything, make sure you can answer yes to each item.
Independence
- My lawyer confirmed in writing they receive no compensation from the project side
- My lawyer explained any prior relationship with the regional center or sponsor
Scope and Accountability
- I have a written engagement letter that defines what is included and excluded
- I know who writes the source-of-funds narrative and who signs off
- I know who leads RFE responses and what happens if staff change
Fees and Surprises
- I received a written fee breakdown including filing stages and future stages
- I know whether RFEs are included or billed separately
- I know what third-party costs I might pay, such as translations and accounting
Project and Structure Questions
- I understand escrow terms, release triggers, and refund conditions
- I understand who controls the funds and who administers them
- I understand senior debt above EB-5 capital and how it affects risk
- I understand job creation methodology at a high level and what happens if it falls short
Benefits of an EB-5 Visa
Foreign nationals under the EB-5 Visa don’t need to complete a labor certification process that employment-based immigrant visas require. Unlike an L-1 visa, EB-5 has no requirement to maintain a business in your home country nor does it depend on verifying extraordinary ability in the business.
The EB-5 Visa also allows you to bring your dependent family members such as your spouse and unmarried children under the age of 21 to the U.S.
Compared to other visas, the EB-5 Visa has no visa limits based on your home country. This makes it appealing over diversity visas. It also doesn’t require you to have family members who are already present in the U.S.
The most beneficial aspect of an EB-5 Visa, however, is that it offers a direct pathway to U.S. citizenship for you and your dependents. Other visas will force you to apply for other visas to gain citizenship, but an EB-5 Visa already includes the intent of permanently living in the U.S.
How to qualify for an EB-5 Visa?
Requirements
To obtain an EB-5 Visa, there are certain EB-5 Visa requirements that you must satisfy. First, you must show that you have invested or are actively in the process of investing in a New Commercial Enterprise.
Second, you must make a minimum investment of $800,000 in a TEA or $1,050,000 in non-TEA. This is included in some of the EB-5 Visa cost that you’d need to pay throughout your application. You may also invest in regional centers, which have less strict job creation requirements.
Third, the capital invested must create at least 10 full-time jobs for qualified U.S. workers.
EB-5 Visa Application
The first step in an EB-5 Foreign Investor Visa process is to file an Immigrant Petition as an Alien Entrepreneur. This must include supporting documents about the specifics of the investment, the management of the business, and proof that the money has been invested and that the invested business created jobs. These are not exclusive, and your immigration lawyer can help you determine which documents to include in your petition based on your circumstances.
Upon the approval of your petition, you may apply to obtain status as a conditional resident together with your dependents for 2 years. After that, you can apply to have the conditions removed by filing Form I-829.
EB-5 Visa Processing Times
According to the USCIS, the processing time for Form I-526 petitions ranges between 55–85 months, depending on your home country. Please take note that the USCIS processes first petitions from investors for whom a visa is available or soon to be available.
Meanwhile, in the new visa bulletin from the USCIS, all countries except China and India are tagged as “Current”, which means no backlog or retrogression.
What is an EB-5 Regional Center?
An EB-5 Regional Center is a public or private economic entity that’s involved in the promotion of economic growth, increased domestic capital investment, improved regional productivity, and job creation. It must first be approved by the USCIS.
Please take note that investing in a regional center doesn’t guarantee that the conditions on your green card will be removed after 2 years. You must still prove that your investment funds were at risk, and the minimum number of jobs for qualified U.S. workers was created.
Why are EB-5 Immigrant Investor Program Rules changing?
In March 2022, Congress passed the new EB-5 Reform and Integrity Act of 2022 (2022 Act). The law reauthorized the Regional Center Program and implemented changes and requirements for foreign investors and regional centers.
Minimum Investment Requirements
Before the new law, the 2019 law increased the minimum investment amount from the 1990 levels. The 2022 Act changed the minimum investments to $800,000 in a TEA and $1,050,000 in non-TEA. For a full breakdown, see our EB-5 Visa Costs & Fees guide.
Targeted Employment Area
The new law provides that only the USCIS may designate high-unemployment TEAs, which include the census tract or contiguous census tracts in which the NCE is primarily doing business. The weighted average of the unemployment rate for the census tracts must be at least 150% of the national average.
Moreover, the 2022 Act has specified that the USCIS shall prioritize the process and adjudication of EB-5 petitions for regional center investments in rural areas.
Regional Center Program
The new law also authorizes the Regional Center Program until September 30, 2027. Because of this, the USCIS has resumed processing applications based on regional centers. However, the applications are subject to the law that is in place at the time of its filing (e.g. minimum investment requirements).
Oversight Measures
The 2022 Act has included oversight measures, particularly for regional centers, which address concerns of fraud and abuse in the program. It established the EB-5 Integrity Fund, which is funded by regional centers through annual fees. The USCIS will use this fund for investigations related to the program such as determining compliance and conducting regional center audits.
Related EB-5 Resources
EB-5 Form Guides
About the Authors
Mark I Davies, Esq.
Chairman of Davies & Associates; focused on EB-5 investor visa strategy and complex immigration filings.
Mark I Davies, Esq. JD, University of Pennsylvania Law School, Licensed with the SRA (SRA ID: 384468) in the UK, Member Law Society of England & Wales, MBA, Wharton School of Business. Top 10 Investment Visa Lawyer, Licensed (USA), Georgia State Bar. AILA Member.
| Area |
Details |
| Education |
JD, University of Pennsylvania Carey Law School | MBA (Finance), The Wharton School, University of Pennsylvania | Chartered Accountant (ICAEW) |
| Financial Training |
Completed Analyst Training Program at a major international bank | Chartered Accountant background with professional training in financial analysis and reporting |
| Legal Practice |
Admitted to practice in Georgia (USA) | Registered Solicitor with the Law Society of England and Wales | Former CMBS lawyer at one of the world's largest international law firms |
| Immigration Track Record |
15+ years advising HNW investors | Zero denials for clients advised on source-of-funds compliance in EB-5 | Hundreds of successful EB-5 cases globally |
| Recognition |
Named a Top 25 EB-5 Immigration Attorney by EB5 Investors Magazine (2018–2023) |
| Professional Engagements |
Lecturer/trainer for other lawyers at AILA, ACA, University of Pennsylvania Law School | Frequent speaker at global investment immigration conferences |
