- What is the EB-5 Program?
- Who should invest in an EB-5 Program?
- What is a Designated Regional Center?
- What is the minimum required amount to be invested?
- Is EB-5 a truly passive investment?
- What are the risks?
- What is an escrow account, and when does the investor transfer the money to this account?
- Where can I find a copy of the relevant EB-5 law and regulations to review?
- What if I want to manage my own business?
- Are any countries excluded from eligibility for the EB-5 Visa program?
- Must I have previous business experience or education?
- What is the difference between a conditional and a permanent Green Card?
- Who receives the permanent residency Green Card?
- What issue has caused the most problems when applying for an EB-5 visa?
- Am I still required to hire an immigration attorney?
- How long I must stay in the US each year?
- How long does USCIS take to process my visa petition?
- Can money gifted by a parent or other relative be used for an EB-5 Investment?
- What is meant by the requirement that the investor’s assets be “lawfully gained”?
- Can I apply for an EB-5 if I have been rejected or terminated in the past by USCIS for an L-1, E-2, B, or other visa?
- After petition approval, can members of the family be interviewed in different countries?
- Can I apply if I am currently without a valid visa?
- Will my children be able to remain in school in the United States if I leave the United States?
- Am I entitled to keep my citizenship of my country of origin?
- What is the difference between permanent residency and citizenship?
- Can my Green Card be taken away from me?
- I have a Green Card and I plan on traveling out of the U.S. for a long time. Can I keep my Green Card?
- If I need to stay out of the US for more than a year, is there anything I can do?
1. What is the EB-5 Program?
Congress created the EB-5 (Employment-Based 5th Preference) Immigrant Investor Pilot Program through the Immigration Act of 1990. The EB-5 program allocates 10,000 visas available in this category each year.
A minimum of 3,000 EB-5 visas are reserved for immigrants who participate in designated Regional Centers, areas of high unemployment or other qualifying areas. The immigrant investor must establish a business or invest in an existing business that creates at least 10 full-time jobs for US legal qualified workers.
2. Who should invest in an EB-5 Program?
Any Immigrant Investor can invest in an EB-5 Program through designated Regional Centers. Immigrant Investors are generally well-educated professionals, business people and/or retirees. The EB-5 visa program offers an opportunity for Immigrant Investors and their families to live and work in the Unites States of America.
It is often less expensive and more convenient to utilize the Regional Center EB-5 category to fulfill your American Dream.
According to USCIS statistics, 90-95% of the individual Form 1-526 petitions filed each year are filed by Alien Investors who are investing in Regional Center-affiliated commercial enterprises.
3. What is a Designated Regional Center?
A Designated Regional Center is an entity, organization or agency approved by USCIS that focuses on a specific geographic area within the United States and seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
4. What is the minimum required amount to be invested?
The minimum investment amount is $1 million per investor for making an investment anywhere in United States of America.
The minimum investment amount is $900,000 when the investor invests capital in a rural area or in a Targeted Employment Area (TEA), through a Designated Regional Center.
5. Is EB-5 a truly passive investment?
The EB-5 investor does not have to be involved in the daily operations of the business. The EB-5 regulations do require involvement in management or policy making. The common business structure is a Limited Partnership or Limited Liability Corporation.
6. What are the risks?
EB-5 Immigrant Investor Program regulations require an “at risk” investment. “At risk” generally means subject to normal business and financial risk. There is a risk of total loss and no investment can be guaranteed.
Empire State Development Fund® goes to great lengths to minimize the risks. Other risks include the enterprise’s failure to meet the direct or indirect job creation requirement.
7. What is an escrow account, and when does the investor transfer the money to this account?
An Escrow Account is a legal, interest-bearing account established in a bank to hold the initial deposit in trust until the completion of the I-526 petition.
The investor will deposit the funds into an escrow account under the terms of an escrow agreement. When the I-526 petition is approved, the funds will be available to be invested in the new business for two years.
8. Where can I find a copy of the relevant EB-5 law and regulations to review?
Please go to The US Bureau of Citizenship and Immigration Services website at http://www.uscis.gov to find complete information on the immigrant investment visa.
9. What if I want to manage my own business?
If you want to manage your own business, your possible options would be an L-1 (Non-Immigrant Intra-Company Transferee), E-2 Visa (Non-Immigrant Treaty Investor), or EB-5 Immigrant Investor Program.
If your goal is to receive a Green Card for you and your family and not get actively involved in managing a business, you should consider the EB-5 Immigrant Investor Program. It is usually less expensive to apply through a structured investment program in the Regional Center EB-5 category.
10. Are any countries excluded from eligibility for the EB-5 Visa program?
The EB-5 Visa is open to most countries. Only a few countries are excluded, including North Korea, Iran and Iraq. Consult your attorney to determine if your home country is excluded from this visa program.
11. Must I have previous business experience or education?
No. There are no education or business experience requirements for EB-5 visa applicants. You must prove that you are in good physical and mental health and have no communicable diseases.
12. What is the difference between a conditional and a permanent Green Card?
Following government approval of 1-526 petitions, the investor, spouse and children under 21 who are approved for the EB-5 immigrant visa receive conditional Green Cards. A conditional Green Card is valid for two years and is converted into a permanent Green Card after the two-year period. Otherwise, the rights granted under the conditional Green Card and the permanent Green Card are the same.
13. Who receives the permanent residency Green Card?
The Investor, spouse and any unmarried children under the age of 21 will receive permanent residency.
14. What issue has caused the most problems when applying for an EB-5 visa?
The most common problem has been insufficient documentation of the source of the investment funds. To prove the source of investment funds, USCIS case examiners require personal and business information, like tax returns, proof of ownership in any business and business licenses.
We recommend that investors get professional assistance from a certified accountant or tax attorney for this information.
15. Am I still required to hire an immigration attorney?
Yes, your immigration attorney needs to file the paperwork and complete the applications for an EB-5 investor visa. The EB-5 application process is complicated and many technical requirements must be met. It is important to have your own legal counsel representing your interests.
16. How long I must stay in the US each year?
Generally, permanent residents must remain in the US for more than 6 months each year, unless they obtain a reentry permit.
17. How long does USCIS take to process my visa petition?
Once an application has been processed and approved by USCIS, a conditional green card is generally issued within a year to 18 months from the date the petition is approved. Processing time, however, could vary.
Upon approval of the I-526 Petition, the US Consulate in your home country will notify you of the visa interview. This procedure is to ensure that the investor and his or her family undergo medical, police, security and immigration history checks before the conditional resident visa is issued.
If the investor is already in the United States, he or she may apply for adjustment of status by filing form I-485 and supporting documents.
18. Can money gifted by a parent or other relative be used for an EB-5 Investment?
Yes. You must present evidence that any applicable gift taxes are paid and must demonstrate that the gift is an actual arms-length transaction. The gifted funds must stay with the recipient and cannot be given back after permanent resident status is granted.
19. What is meant by the requirement that the investor’s assets be “lawfully gained”?
Under USCIS regulations, the investor must prove that the investment funds were obtained through lawful means, such as from lawful business, salary, investments, property sales, inheritance, gift, loan, or other legal means.
20. Can I apply for an EB-5 if I have been rejected or terminated in the past by USCIS for an L-1, E-2, B, or other visa?
Unless the rejection reasons are related to immigration fraud or other major problems, past rejection does not disqualify the applicant. All criminal, medical or US immigration history problems must be disclosed to the legal counsel and limited partnership before filing an application.
21. After petition approval, can members of the family be interviewed in different countries?
Yes, family members can be interviewed in different countries. Frequently, one member of the family is located in another country. For example, a student attending school in the US can adjust status in the United States at the district office of USCIS.
22. Can I apply if I am currently without a valid visa?
Investors without a valid visa are not permitted to apply for permanent residency from within the United States. They must first return to their country of origin and apply through the United States Embassy in their home country.
23. Will my children be able to remain in school in the United States if I leave the United States?
24. Am I entitled to keep my citizenship of my country of origin?
The United States of America allows dual citizenship, but your original country may not permit it. Consult with your legal counsel.
25. What is the difference between permanent residency and citizenship?
A legal permanent resident has most of the rights and obligations of US citizens, except that he/she cannot vote and are not entitled to some public benefits. By becoming a US citizen, an individual is entitled to benefits, including the right to vote and hold public office.
26. Can my Green Card be taken away from me?
There are only two instances in which your Green Card could be taken away. First, by being convicted of a serious crime, and second, by abandoning the United States as your country of permanent residence.
27. I have a Green Card and I plan on traveling out of the U.S. for a long time. Can I keep my Green Card?
You will lose your Green Card when you give up your US residence, unless you are planning to make your home somewhere else. Then legally you are still a resident of the United States.
“Abandonment of residency” rules are an important restriction to which legal permanent residents are subject. There are three important time limits to know about:
- Absent for less than six months will rarely have a problem. It is up to USCIS to prove that you abandoned your residency. Generally, the USCIS views any absence from the United States for less than six months as temporary.
- You need to prove that you are still a permanent resident in the United States when you are absent for more than six months but less than a year. Abandonment can occur when you are outside of the United States for more than six months without informing USCIS of your plans in advance. This is based on the concept that after six months you have to be readmitted and have to prove that you are still admissible.
- If you are absent for more than a year, you may have a difficult time re-entering the United States of America. Generally, USCIS considers an absence of longer than one year as indication of a possible abandonment of US residence.
28. If I need to stay out of the US for more than a year, is there anything I can do?
Before you leave the US, you can apply for a reentry permit (form I-131) and you can depart before the reentry permit is approved. The waiting time may take six months or longer for issuance. Reentry permits are issued for two years and with such a permit you can return to the United States. You can return to the US for a short time to apply for a new one. Subsequent permits may only be approved for one year at a time.