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The Immigrant Investor Program was created in 1990 for qualified foreign nationals seeking to invest in a business that will benefit the U.S. economy and create or save at least 10 full-time jobs for U.S. workers.

The minimum amount required to invest is currently $1.8 million, or $900,000 (in certain qualifying locations). Foreign investors have the option to invest in one of the USCIS-approved Regional Centers or by making a direct investment in a new commercial enterprise to be managed by the investor.

The majority of EB-5 investments are made in a Regional Center. A Regional Center is a business or investment project which focuses on a specific geographic area or business plan. Investing in a Regional Center is a more passive approach as the EB-5 investor does not need to be directly involved in the business’ day-to-day operations. The Regional Center Program does not require that the project or enterprise directly employ 10 U.S. workers. Instead, it is sufficient if 10 or more jobs will be created directly or indirectly as a result of the investment. The investment must be placed at risk and the re-payment of the investment by the Regional Center is not guaranteed.

Under the Direct investment EB-5 approach, the investor must create or purchase a Business in the U.S. The commercial enterprise can be new or pre-existing. As in the Regional Center context, the investment must be at least $1.8 million (or $900,000 in a qualifying location). The Direct investment must create at least 10 new U.S jobs and the investor must manage the business. While the most common approach to Direct investment is where an individual investor either starts or purchases his or her own business, there has been a rise in processing Direct EB-5 applications for larger, “pooled – investment” projects. As with Regional Center projects, multiple investors may pool investment resources into a single Direct Project.  There is no requirement of majority ownership for EB-5 purposes.

The most significant difference between a Pooled Direct Investment Project and a Regional Center Project lies with the Job Creation requirements. With a Direct EB-5 Project, the USCIS will require the creation of 10 new direct jobs to be allocated to each investor. In contrast, under the Regional Center rules, USCIS will allow both direct and indirect jobs to be counted as part of the job creation requirement.

Regardless of whether an investor invests in a Regional Center or makes a direct investment, the following is an overview of the steps that must be taken by an immigrant investor in order to achieve permanent residence through the Immigrant Investor Program.

Step One: File Form I-526, Petition by Alien Entrepreneur

The first step is to file Form I-526, Petition by Alien Entrepreneur, which presents the immigrant investor’s investment plan to USCIS. The Form I-526 filing fee is $3,675. The date that Form I-526 is filed sets the Priority Date of the immigrant investor. Form I-526 must be accompanied by evidence of the following:

  1. Investment in a New Commercial Enterprise: The evidence must demonstrate that the entity in which the immigrant investor plans to invest in a “new commercial enterprise,” i.e., a for-profit activity formed for the ongoing conduct of lawful business which was established after November 29, 1990.
    Note: If applicable, evidence must be presented that the new commercial enterprise is located in or is principally doing business in a Targeted Employment Area (“TEA”), that is, an area with unemployment of at least 150% of the national average or a rural area located outside of a Metropolitan Statistical Area or outside of a city or town with a population of at least 20,000.
  2. The Petitioner has invested or is actively in the process of investing the required amount of capital: The immigrant investor must show that he or she has placed the required amount of capital at risk. The required amount of capital is $1.8 million unless the new commercial enterprise is located or principally doing business in a Targeted Employment Area, in which case the required amount of capital is $900,000. In general, to demonstrate that the immigrant investor has put the capital at risk, the vast majority of the capital must either be already invested in the Regional Center or be held in escrow, to be released to the Regional Center at the time that the immigrant investor obtains conditional permanent resident status pursuant to the I-526 approval. The capital is not considered to be “at risk” if there is a redemption agreement or a guaranteed rate of return on an immigrant investor’s capital.
  3. The capital was obtained by lawful means: The immigrant investor must trace the source of the capital using documentary evidence to demonstrate that the capital legally belongs to the immigrant investor and was obtained by the immigrant investor through lawful means. Evidence may include, but is not limited to, foreign business registration records, tax returns filed within the previous five years, and affidavits of gift-givers.
  4. The investment will create full-time positions for at least 10 qualifying employees: In the Regional Center context, the evidence must show that the capital investment was or will be made in accordance with the Regional Center’s business plan. In order to become an approved EB-5 Regional Center, the Regional Center’s business plan must have already been determined by USCIS to more likely than not result in the creation of direct or indirect qualifying jobs.

Step Two: Obtain Conditional Permanent Residence

Once the I-526 Petition is approved and the immigrant investor’s priority date is current on the visa bulletin, the immigrant investor (along with his or her spouse and unmarried children under the age of 21) may obtain two years of conditional permanent residence in the U.S. in one of two ways.

If the immigrant investor is already in the U.S. in lawful status (and is not otherwise inadmissible), he or she may file Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS. Note that a foreign national in visa waiver status, for example, cannot adjust status in the U.S. The filing fee for Form I-485 is $1,225 (which includes an $85 biometrics fee) per applicant. The application must be accompanied by evidence of identity, familial relationships with co-applicants, and lawful status in the U.S. Within 3-6 months of filing Form I-485, the applicant will receive an Employment Authorization Document (EAD) and Advance Parole document (AP), in a combined EAD/AP card. The EAD/AP card is valid for re-entry to the U.S. after international travel and work authorization with any employer in the U.S. Upon approval of Form I-485, all applicants will receive a conditional green card valid for two years, which serves as a U.S. reentry document and evidence of the right to work for any employer in the U.S.

If the immigrant investor is outside the U.S. when the I-526 petition is approved, he or she may pursue consular processing to enter the U.S. as a conditional permanent resident. The first step is to submit the online DS-260, Immigrant Visa and Alien Registration Application, to the U.S. Department of State’s National Visa Center (“NVC”). The Immigrant Visa Application processing fees for applications based on an approved I-526 Petition are $345 per person. The immigrant investor will then attend an interview at the U.S. Embassy or Consulate in the immigrant investor’s home country. Once the immigrant investor is granted a U.S. immigrant visa, he or she may enter the United States. The immigrant investor will receive a conditional permanent resident card (ie, a conditional “green card”), valid for two year, via mail within approximately 45 days of arriving in the U.S.

Step Three: File Form I-829, Petition by Entrepreneur to Remove Conditions

Within 90 days of the expiration of the immigrant investor’s two-year conditional residence period, the immigrant investor must file Form I-829 with USCIS to remove the conditions on his or her permanent residence and become an unrestricted U.S. permanent resident. The filing fee for Form I-829 is $3,750 plus an additional $85 for each dependent conditional permanent resident. If the I-829 petition is approved, the conditions will be removed not only from the immigrant investor’s permanent resident status, but also from the permanent resident status of his or her dependents. Filing Form I-829 prior to the expiration of the immigrant investor’s conditional permanent residence automatically extends his or her permanent resident status for six months. The immigrant investor may continue to travel internationally and work in the U.S. while the I-829 petition is being adjudicated, by presenting the Form I-829 Receipt Notice along with his or her conditional permanent resident card. The immigrant investor and his or her dependents will attend biometrics appointments to have their photographs and fingerprints taken and may be asked to attend an interview at USCIS.

When filing Form I-829, the immigrant investor must demonstrate to USCIS that he or she completed the proposed investment and that the investment had the intended outcome of job creation. Therefore, Form I-829 must be filed with the following evidence:

  1. The immigrant investor invested in the new commercial enterprise: The evidence must demonstrate that the immigrant investor actually invested in the new commercial enterprise (for example, that the funds held in escrow were released to the Regional Center).
  2. The immigrant investor invested the total amount of required funds: The immigrant investor must show that the full amount of required funds ($900,000 or $1.8 million) was invested in the new commercial enterprise.
  3. The immigrant investor sustained the investment during the two-year conditional resident period: The immigrant investor must demonstrate that the full amount of capital invested remained in the new commercial enterprise.
  4. The investment created, or will create within a reasonable time, 10 full-time jobs for qualifying employees: The evidence must show that the immigrant investor’s capital investment resulted in the creation of 10 full-time jobs for qualifying employees by the time of the filing of Form I-829 or that the investment will result in the creation of those jobs within 3 years of the date that the immigrant investor initially became a conditional permanent resident.

Once the I-829 petition is approved, the immigrant investor and his or her family will be lawful permanent residents and may hold this status indefinitely. Within 90 days of the 5-year anniversary of becoming conditional permanent residents, the immigrant investor and his or her family members may apply to naturalize and become U.S. citizens, provided that they meet certain conditions, including that each applicant has spent at least one-half of the previous five years in the U.S.

Should you have any questions about the EB-5 Immigrant Investor Program and the path that it offers to obtain U.S. lawful permanent residence, please do not hesitate to contact either Rob Neale or email us at EB-5@clarkhill.com