EB-5 Investment Visas

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If you're like many investors, you've heard of the United States' EB-5 Immigrant Investor Program (often simply called the Immigrant Investor Program or the EB-5 Program). This program, run by U.S. Citizenship and Immigration Services (USCIS), provides a pathway to U.S. citizenship through business. If you have the capital to invest and otherwise qualify for the program, you may be eligible to get green cards for yourself and immediate family members. This guide explains the EB-5 Immigrant Investor Program, how it works, who qualifies and more.

The EB-5 Investor Program is a federal program that provides foreign nationals with a path to U.S. citizenship through investment. In order to qualify, investors must invest a minimum amount of capital in a new commercial enterprise that creates at least ten jobs for U.S. citizens. The following table outlines how much you must invest in targeted employment areas and high-employment areas.

A targeted employment area is an area that has been designated by the state as having high unemployment or being a rural area. In order to qualify for the program with a lower investment amount, you must invest in a new commercial enterprise located in a targeted employment area.

A high-employment area is any area other than a targeted employment area. In order to qualify for the program with a higher investment amount, you must invest in a new commercial enterprise located in a high-employment area.

In order to qualify for the EB-5 Investor Program and get a business visa, you must invest in a new commercial enterprise. A new commercial enterprise is defined as any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:

• A start-up company
• A business purchased and restructured in such a way that a new commercial enterprise results
• A business that is expanded through the investment of capital in excess of 40 percent of its pre-expansion net worth or number of employees

Generally, a new commercial enterprise is any for-profit activity that's intended for business. That means it can be formed in a variety of ways, including as a:

• Sole proprietorship
• Limited partnership
• General partnership
• Limited liability company
• Business trust
• Holding company
• A holding company's wholly owned subsidiaries, as long as each subsidiary is engaged in a qualifying activity
• Joint venture
• Corporation
• Other publicly owned entity
• Other privately owned entity

In order for your investment to qualify you for the EB-5 Investor Program, the new commercial enterprise must create full-time positions for at least ten qualifying employees. Qualifying employees are defined as U.S. citizens, lawful permanent residents or other immigrants authorized to work in the United States. The following positions do not count towards the ten-employee requirement:

• The investor
• The investor's spouse, sons or daughters
• Other family members who live in the same household as the investor
• Any foreign national who is in the United States in a nonimmigrant status (such as H-1B, L-1 or E)
• Any foreign national who has an application for permanent labor certification pending with the U.S. Department of Labor or whose application for permanent labor certification has been filed with USCIS

To be eligible for the EB-5 Investor Program, you must:

• Invest the required amount of capital in a new commercial enterprise
• Create full-time positions for at least ten qualifying employees
• Be admissible to the United States
• Meet the definition of an "accredited investor" as defined in SEC Rule 501 of Regulation D
• Be 18 years of age or older
• Have a lawful source of funds
• Intend to live permanently in the United States

Check out these common questions about EB-5 visas and employment-based immigration. If you don't see the answer to your question here, please feel free to call our office to speak to an experienced attorney. We'll be happy to answer your questions and point you in the right direction.

The amount of money you need to invest depends on whether you're investing in a targeted employment area or a high-employment area. In March 2022, USCIS changed the minimum investment amounts; petitions filed after March 15 of that year require a minimum investment amount of $1,050,000 for all areas except targeted employment areas. In targeted employment areas, you must invest at least $800,000. That figure includes infrastructure projects, as well.

Your immediate family may be able to come to the United States with you on an EB-5 visa. This includes your spouse and any unmarried children who are under the age of 21. If you want to bring your immediate family to the U.S. on your EB-5 visa, you must include them on your I-526 petition. (Let your immigration attorney know if you want to include your family members; they'll know how to add them to your petition for you.)

If you meet all the requirements for the EB-5 Investor Program, including the investment and job creation requirements, you may be eligible to apply for a green card. After you have a green card, you can live and work permanently in the United States. You'll receive a conditional green card at first; and then you will need to prove to the government that you held up your end of the bargain with the investment, and then you must petition the U.S. government to remove the conditions to get a permanent green card. Your immigration attorney can help you remove the conditions on your green card when the time comes; they can also help you remove the conditions on your family members' green cards.

If you later choose to, you may use your green card to apply for naturalization. The naturalization process makes you a U.S. citizen with all the same rights and responsibilities of a natural-born citizen.

There is an annual limit, or "cap," on the number of EB-5 visas that can be issued in a fiscal year. The cap is set at 10,000 visas per year. Of those 10,000 visas, 3,000 are set aside for investors who invest in a commercial enterprise that will create jobs in a targeted employment area. (See the following section, "What Are EB-5 Immigrant Visa Set-Asides?" for more information.)

If the cap is reached, investors who are not from countries that are experiencing a high demand for EB-5 visas may have to wait until the next fiscal year to apply for their visas. However, if you are from a country that is experiencing a high demand for EB-5 visas, you may be able to file your I-526 petition before the end of the fiscal year and have your petition "piggy-backed" onto another investor's visa that was issued earlier in the year. Your EB-5 immigration attorney can walk you through this process.

The EB-5 visa program includes a provision that sets aside 3,000 visas each year for investors who invest in commercial enterprises that will create jobs in targeted employment areas. To be eligible for one of the set-aside visas, you must invest the minimum amount required for your particular targeted employment area. To find out if the area in which you want to invest qualifies as a targeted employment area, you can check the USCIS website or contact your immigration attorney.

If you want to apply for an EB-5 visa, the first step is to file an I-526 petition with USCIS. You must include the following documentation with your petition:

• A business plan
• Evidence that you have invested or are in the process of investing the required amount of money in a commercial enterprise in the United States
• Evidence that your investment will create full-time jobs for qualified U.S. workers

If you are including your family members on your petition, you must also include evidence of their relationship to you (for example, a marriage certificate or birth certificate). After USCIS has approved your I-526 petition, you can apply for an EB-5 visa at a U.S. consulate or embassy in your home country. You will need to bring the following documentation with you to your visa interview:

• Your passport
• A copy of your approved I-526 petition
• Evidence of your investment
• Proof of your relationships with family members you included on your petition

After you have been granted a conditional green card, you must file an I-829 petition to remove the conditions on your green card. You must file this petition within 90 days of the date your conditional green card expires. To remove the conditions on your green card, you must show that:

• You have invested the required amount of money in a commercial enterprise in the United States
• Your investment has created or will create full-time jobs for qualified U.S. workers

Your attorney can help you remove the conditions from your green card.

If you’re thinking about investing in a new commercial enterprise in the United States, we may be able to help you. Call our office today to schedule your consultation with an experienced professional who can give you the guidance and legal advice you need to start your journey into U.S. entrepreneurship.