EВ-5 VISA PROGRAM OVERVIEW

WHAT IS EB-5?

EB-5 is a Fast, Simple, and Reliable Way to Achieve Permanent Residency in The United States

The EB-5 Immigrant Investor Program was created in 1990 to attract foreign investment to stimulate economic growth through job creation in the United States. The program allows foreign nationals to make a qualifying investment into a new or existing US commercial enterprise that creates 10 US jobs to obtain a Green Card. EB-5 Investors and their families gain permanent residency to live and work anywhere in the United States. One EB-5 investment allows the main applicant, spouse, and any unwed children under the age of 21 to all obtain Green Cards.

BENEFITS FOR EB-5 INVESTORS

EB-5 Visa provides many benefits to Foreign Investors looking to immigrate to the US including:

How to obtain a Green Card for You and Your Family with EB-5 Visa

EB-5 Visa Cost & Requirements

The US government requires EB-5 investments to comply with strict guidelines in order to promote job creation. The minimum qualifying investment threshold varies depending on the location of the business or project to help stimulate job creation in targeted areas. If an EB-5 project is in a Targeted Employment Area (“TEA”) the qualifying investment amount is currently $900,000. Outside of a TEA, investors must contribute $1.8MM to obtain a Green Card.

 

EB-5 Visa Investment AmountPaid toAmount*
Targeted Employment Area (TEA) EB-5 Investment AmountUS Commercial Enterprise$900,000

OR

EB-5 Visa Investment AmountPaid toAmount*
Non-Targeted Employment Area (Non-TEA) EB-5 Investment AmountUS Commercial Enterprise$1,800,000

 

AND 

EB-5 Visa Typical CostsPaid toAmount*
Admin FeesInvestment Issuer (Regional Center)$65,000 – $90,000
Legal FeesImmigration attorney$20,000 – $40,000
Processing FeesUSCIS≈ $7,000**

*As of July 2020
**Additional smaller USCIS processing fees may apply for dependents

 

EB-5 Visa Investment AmountPaid toAmount*
Targeted Employment Area (TEA) EB-5 Investment AmountUS Commercial Enterprise$900,000

OR

EB-5 Visa Investment AmountPaid toAmount*
Non-Targeted Employment Area (Non-TEA) EB-5 Investment AmountUS Commercial Enterprise$1,800,000

 

AND 

EB-5 Visa Typical CostsPaid toAmount*
Admin FeesInvestment Issuer (Regional Center)$65,000 – $90,000
Legal FeesImmigration attorney$20,000 – $40,000
Processing FeesUSCIS≈ $7,000**

*As of July 2020
**Additional smaller USCIS processing fees may apply for dependents

The investment is required to be an “At-Risk” Investment in a US commercial enterprise. There can be no guarantee on the return of investment to the investor as it would disqualify them from obtaining a permanent Green Card. This does not mean that the EB-5 investment must be unnecessarily risky. Risk can be mitigated in a multitude of ways by the deal structuring of the EB-5 Investment Offering.

One EB-5 investment allows the main applicant, their spouse, and any unwed children under 21 to obtain permanent Green Cards. The investor does not receive any immediate immigration benefits after applying and they may have to wait more than a year before the I-526 application is approved. Only after I-526 approval will they be allowed to immigrate to the United States. Applying for EB-5 does not affect other ongoing forms of US legal status e.g. H1-B, F1, B1, etc. The first EB-5 immigration benefit comes in the form of a conditional Green Card that you receive approximately one to two years from the moment of application. This timeline varies and may be shorter or longer, it will likely be longer if you are from China, Vietnam, or India.

EB-5 Visa Process & Timeline

Stage 1: Do your Research (First 1 to 3 months)

Step 1: What is the EB-5? How long does it take?
Start by doing your research into the EB-5 process, doing your due diligence and understanding your EB-5 investment is extremely important. The entire process may take approximately 5 to 8 years and maybe shorter or longer depending on your country of birth and changing USCIS processing times.

Step 2: Is it worth it for me?
EB-5 is an immigration by investment program that requires you to make a minimum investment of $900,000. The return on investments are typically minimal, take your time to figure out if obtaining a Green Card is worth it for you. If you are on an existing non-immigrant visa in the US right now, you need to decide if the benefits of obtaining a Green Card is greater than renewing your non-immigrant visa every three years.

Step 3: Do I have the money?
One of the most important aspects of the program is to show where the money for the investment is coming from. Whether it’s your earnings, assets, or even gifts/loans from friends and family, you will need to be able to prove and show documentation for all sources of money in the investment.

Step 4: Make your decision
After taking all facts into consideration make your decision.

Stage 2: Begin your EB-5 Process (First 1 to 3 months)

Step 5: Identify a project that meets your objectives
Take your time to do your due diligence on the project that best meets your immigration and investment goals. Once you make your decision you will subscribe to that project to reserve a spot in the New Commercial Enterprise (usually a Limited Partnership or Limited Liability Company). Your immigration attorney cannot recommend projects to you but you can ask them to do their due diligence from the immigration aspect of the project of your choice.

Step 6: Engage an Immigration Attorney and start researching projects
Alongside the project due diligence you should also choose an experienced EB-5 Immigration Attorney you are comfortable with. Your attorney will begin handling your case by obtaining your basic info, travel history, and the required documentation for your source of funds. If your funds are not all liquid the attorney will guide you in mobilizing your funds via a gift, loan against property, sale of assets, etc. You will need to provide multiple documents at this stage and the entire process can take anywhere from a week to a few months depending on how complex your case is.

Step 7: Send Funds to Escrow
After your immigration attorney has completed your source of funds they will give you the go ahead to send your funds to escrow.

Step 8: Submit your I-526 petition
Once your funds have been sent your attorney will be able to submit your I-526 petition to the USCIS. Approximately 10 days after submitting you will receive an I-797C receipt notice from the USCIS stating that they received your case. The receipt notice will include the date they received your case, that will be your official priority date.

Stage 3: Wait for I-526 approval (10 months-2 years)

Step 9: Wait for USCIS to approve your I-526 petition
This process varies in time and cannot be controlled. This wait time is not dependent on which project you subscribe to and the order of approval is not always completed in the exact order of when each person filed their I-526. This approval is on a case by case basis. On March 31st, 2020 the USCIS implemented a priority processing program. All investors current on chart B of the Visa Bulletin will be processed with priority. As of July 2020, China is the only country that does not receive priority processing. It is unknown how large of an impact this will have on I-526 processing times, but we can expect all nationalities except China to realize faster processing times. You are not given any legal immigration status during this time. If you are already in the US on an F-1 or H-1B visa you must renew it and maintain its validity if you want to remain in the US. Returning to your home country will not affect your I-526 petition while it is pending approval.

Stage 4: I-526 approved, Priority date current, Apply for conditional Green Card (3-6 months outside USA, 6-14 months in USA)

Step 10: Consular Processing / Change of Status
If you are outside the US you will go through a visa interview process with the Visa Consular (includes document review, medical examination, and personal interview). This will take approximately 3 to 6 months to set up depending on your consulate. After the interview you will receive an immigrant visa which will be stamped into your passport, you are then able to move to the United States. After you arrive your Green Card will then be issued to you.

If you reside in the US on a non-immigrant visa like a H1-B or F-1, upon I-526 approval you will file an I-485 for Adjustment of Status from your current non-immigrant visa to your lawful permanent resident status. This will take approximately 6-14 months until you receive your Green Card in the mail. While awaiting your Adjustment of Status you may be able to apply for an EAD work authorization and travel permit.

Stage 5: Start Conditional Residency (2 years)

Step 11: Begin 2-year Conditional Residency
Once you receive your Green Card in the mail it is effectively the same as any normal permanent resident card. The conditions that must be met at the end of the two years to make the Green Card permanent are: create 10 jobs with your investment; have your money “at-risk” throughout the 2-year “Conditional Residency”. If you invested in a Regional Center project (96% of all EB-5 investments), then your RC is responsible for fulfilling these conditions. The USCIS deems you eligible to receive your money back at the end of your Conditional Residency, so your money no longer needs to be kept “at-risk” once your conditional Green Card expires. You should be careful as some projects also require I-829 approval prior to repayment, this can lock up your investment for unnecessary additional years. Receiving the return of your investment depends on the project you have selected and its repayment terms.

Stage 6: Apply for permanent residency (24-30 months)

Step 12: File I-829 for removal of your conditions
During the last 90 days of your 2-year Conditional Residency your attorney will file your I-829 petition. You will remain in the US as a Green Card holder while your I-829 is being processed. Once you have completed your entire 2-year Conditional Residency you have completed the two-year at-risk requirements and are eligible to receive your investment back (prior to I-829 approval). Receiving the return of your investment depends on the project you have selected and its repayment terms.

Step 13: Receive Unconditional Green Card once the I-829 is approved
At this point your EB-5 journey is complete. Once you have resided permanently in the US for 4 years 9 months (starting from the time you obtained your conditional residence status), you are eligible to file for US citizenship. Speak with your immigration counsel on next the next steps if you so desire.

What are EB-5 Regional Centers?

Congress created the Immigrant Investor Program or “Regional Center Program” in 1993.  The Regional Center Program sets aside EB-5 visas for investors who invest in a commercial enterprises structured by approved “Regional Centers” designated by USCIS to help promote economic growth. Previously, investors only had the option of making a direct investment where they were required to manage the EB-5 project themselves. The creation of the Regional Center Program allowed investors to pool EB-5 money and utilize job creation models. Regional Centers allowed institutions to provide deal access to EB-5 investors, and EB-5 investors were able to make passive investments with developers that have strong track records. The safety, security, and ease of Regional Center investments have driven 96%+ of investors to choose the Regional Center option. Regional Centers / Investment Issuers are responsible for issuing the investment and ensuring that it meets the USCIS requirements.

FAQs

What is an EB-5 visa?

An EB-5 visa is a US immigrant visa (meaning US permanent residency). Another name for a permanent residency visa is a “Green Card”. Green Cards are issued primarily through a lottery, Family-Based relationships, or an Employment-Based sponsorship. EB-5 stands for Employment-Based 5th Category Visa and is an immigration by investment program which leads to US job creation or “Employment”.

Who applies for an EB-5 visa, or who is the primary EB-5 visa applicant?

An EB-5 petitioner is an individual investor. Investors’ spouses and unwed children under 21 can also obtain a Green Card through the same investment. Minors are allowed to apply.

Why do EB-5?

Immigrant investor programs are programs designed to attract foreign capital and business people by providing the right to residence and citizenship in return. Canada’s QIIP requires an investment of CAD $800,000 to settle in Quebec. Portugal offers residency in exchange for a €500,000 residential property investment (you become dependent on real estate market fluctuations), whereas UK residency requires at least a £2 million investment in government bonds. In all these cases you will also carry local currency risks. Therefore, the United States EB-5 program is one of the cheaper and most secure options in comparison.

If you’re on an H-1B/F-1/L-1A or any other non-immigrant type visa, obtaining a Green Card via the EB-5 program is the best way to secure you and your family’s future in the United States. Even though you may have an EB-1/2/3 petition pending, the current wait times are long and can often result in you not being able to obtain a Green Card whatsoever. Obtaining a Green Card also removes the threat of constant non-immigrant visa renewals every three years and greatly lowers the risk of having to leave the country if there is a change with your visa program, job, or personal life in any way.

Using EB-5 to speed up the Green Card process is especially important for individuals on H-1B status who must continuously extend their status and contend with limited career flexibility. This can also be an alternative to H-1B altogether as the H-1B program has currently been suspended. H-4 spouses who are eligible for work authorization should consider proposed changes aiming to cancel this benefit. Many other H-4 visa holders cannot obtain work authorization at all.

What are the Basic Requirements for an EB-5 visa?

Each investor must invest $1.8 million or $900,000 (if investing in a Targeted Employment Area “TEA”) and create 10 US jobs. The initial EB-5 Green Card is conditional and temporary. At the end of a 2-year conditional residency period, the investor must show that the investment was maintained and at least 10 jobs were created for the Green Card to become permanent.

What are the Capital Requirements for an EB-5 Investment?

Proper documentation of source and path of funds is critical; funds required for the investment may include, but are not limited to:

  • Accumulation of salary
  • Earnings from business ownership
  • Proceeds from sale/mortgage of real estate property
  • Gift
  • Inheritance

The more complicated it is to trace the funds, the larger the file.  Think “point in time” events that show clear ownership of the funds. You can utilize loans and it is best practice loans be secured by an asset. Funds can be sourced from anywhere in the world if they legally belong to the investor.

What is the EB-5 Regional Center Program?

The EB-5 Regional Center program was created in 1993 to allow multiple investors to pool their capital for enhanced economic impact within a defined geographic area. This also allowed EB-5 investors to make a passive investment with Regional Centers and issuers who had knowledge and expertise in EB-5.

What is the difference between investment through the EB-5 Regional Center Program and the Non-Regional Center Program?

The main difference is how job creation is calculated. In the basic EB-5 program the 10 US jobs must be direct hires of the enterprise into which the EB-5 investor contributes capital, these direct jobs must be maintained full-time for 2 years. In the Regional Center EB-5 program the 10 US jobs can be direct, indirect, or induced. Additionally, direct investors need to coordinate the preparation of the filings with an attorney, ad hoc business plan writer, economist, and more. In the Regional Center program the experienced issuer of the project will take on this role for the investors.

Can EB-5 investors receive their capital back?

The goal of a typical EB-5 investor is to obtain a Green Card and receive their investment principal back. Well-structured EB-5 offerings have a structured exit strategy in which the EB-5 investors are repaid in-full plus interest. The capital must remain invested or “at-risk” until the investor has completed their Conditional Residency, if they fail to do so their Green Card will not become permanent. Even though EB-5 investments need to be “at-risk” that does not mean that the investment needs to be inherently “risky”.

How long does the EB-5 Visa process take?

It takes about 1.5 to 2 years to get your Conditional Green Card via the EB-5 process. This timeline varies and may be shorter or longer, it will likely be longer if you are from China, Vietnam, or India. Refer to our detailed EB-5 Visa Process & Timeline or contact our experts for further information.

What are the types of EB-5 Projects?

EB-5 projects assume many different business models and operate within many different industries. Types of EB-5 projects include:

  • Mixed-use retail
  • Hotels
  • Sports stadiums
  • Restaurants
  • Agricultural developments, including wineries and farms
  • Electric vehicle manufacturing
  • Manufacturing
  • Biotech and medical technologies
  • Casinos
  • Entertainment venues
  • Convention centers
  • Office buildings

Most EB-5 investments tend to include real estate development as job creation is easiest to show via construction.

What does a typical EB-5 Project Model look like?

Typical EB-5 Project ModelNCE or New Commercial Enterprise: The New Commercial Enterprise (NCE) is the entity created as the “EB-5 fund” into which the EB-5 investors invest. The NCE Manager is the issuer of the security and manages the New Commercial Enterprise into which the investors invest. The invested capital is then deployed as a loan or as equity to the JCE.

JCE or Job Creating Entity: The project entity where the jobs will be created. In a typical EB-5 project each EB-5 investor buys one equity share of the NCE. From there the investors’ money is pooled together and either loaned or invested in the form of equity into the EB-5 project. The remaining amount required to complete the project may come from a developer, bank loan, grant, investment fund, or any other source of capital.

“Loan” model project is a project in which the NCE makes a loan to the project. Each project will have a fixed coupon rate and loan term/maturity date. The fixed coupon rate is paid throughout the loan term beginning the day the money is lent to the developer. A typical EB-5 project will have a loan term of 5 to 7 years.

An “Equity” model project is a project in which the NCE makes a Preferred, Pari Passu, or any other form of Equity investment into the project. Equity projects inherently have more risk but can potentially earn the investor a higher return if the business is successful. In a pure equity investment there is no maturity date to payback the investor, the investors’ return of capital is dependent upon the sale or refinance of the project typically at the developer or NCE manager’s discretion.

How does the EB-5 Repayment Process work?

EB-5 Repayment Plan Process

How is a typical EB-5 Project Capital Stack structured?

Senior Lender: The Senior Lender is first in line to be paid back, they hold the first position or right to foreclose on the property if there is a default on the loan agreement. This means in the event of a project failure, the first position lender can take over ownership of the development property and liquidate to recover its money. This is often a bank but sometimes is the EB-5 fund.

Secondary or Mezzanine Lender: The Secondary or Mezzanine Lender holds second position and therefore is second in line to be paid back in a project failure, the Senior Lender will be paid back in full prior to the second lender recovering any money. Most EB-5 project loans are in second position so it is important to note how large the senior loan is. A larger percentage of money lent in a position ahead of you creates more risk.

Preferred Equity Position: Preferred Equity investors will receive profits from the project until their preferred return is paid. This also means that return is dependent on the project returning a profit unlike a loan where interest is paid from day one when funds are lent to the developer. There is potential for more return because usually you are taking on more risk than a loan, but in EB-5 Preferred Equity returns tend to be heavily restricted. You also are relying on the NCE liquidating through a sale or refinance to recover your investment, and there may not an investment maturity date. There are many ways to structure Preferred Equity offerings, please review the offering documents for each individual project to obtain the true structure of the investment.

Pari Passu Equity Position: Pari Passu Equity is a profit sharing split between the NCE Manager and/or developer and the investor. This is the riskiest portion of the capital stack as you are relying on profits alone to be paid a return. Also, any devaluation in the asset can severely impact the ability to sell or refinance the asset to buy back the EB-5 investors’ shares of the NCE. Again, you are relying on a sale of your share of the NCE to recover your investment, there is not a loan maturity date.

Where your money is in the capital stack will decide the risk and return of your investment. Other primary aspects to consider are: the current value of the asset during construction, how far along construction is, and the likelihood of construction completion.

What is EB-5 Job Creation requirement?

An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees.

  • For a new commercial enterprise not located within a Regional Center, the new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly owned​ subsidiaries) must itself be the employer of the qualifying employees.
  • For a new commercial enterprise located within a Regional Center, the new commercial enterprise can directly or indirectly create the full-time positions.
  • Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
  • Indirect jobs are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise.
  • In the case of a troubled business, the EB-5 investor may rely on job maintenance.
  • The investor must show that the number of existing employees is, or will be, no less than the pre-investment level for a period of at least two years.

How are Job Creation methodologies used to show Job Creation in the Regional Center Program?

Rather than count 10 hired employees, the USCIS allows Regional Centers to use multiple economic impact formulas to connect money spent on a project with the number of jobs created. This means as long as the money is spent on the project as specified the jobs are created and don’t go away. Utilizing a Regional Center simplifies the job creation and eliminates many of the difficult job creation requirements for a direct investment such as maintaining jobs for 2 years.

What is a Targeted Employment Area (TEA)?

A TEA can be, at the time of investment, either:

  • A rural area; or
  • An area that has experienced high unemployment (defined as at least 150% of the national average unemployment rate).

A rural area is any area other than an area within a metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more according to the most recent decennial census of the United States.

A high-unemployment area may be any of the following areas, if that area is where the new commercial enterprise is principally doing business and the area has experienced an average unemployment rate of at least 150% of the national average unemployment rate:

  • An MSA;
  • A specific county in an MSA;
  • A county in which a city or town with a population of 20,000 or more is located; or
  • A city or town with a population of 20,000 or more outside of an MSA.

A high-unemployment area may also consist of the census tract or contiguous census tracts in which the new commercial enterprise is principally doing business, which may include any or all directly adjacent census tracts, if the weighted average unemployment for the specified area based on the labor force employment measure for each tract is 150% of the national unemployment average.

Source: USCIS

What is EB5 United’s role in the EB-5 Process?

EB5 United works with well capitalized developers to structure high-quality EB-5 investment products for foreign investors. EB5 United’s goal is to ensure its qualifying EB-5 investment products provide more than enough of the requisite jobs for all investors. The use of investor protections and industry best-practices provide EB5 United investors with peace-of-mind. EB5 United’s principals have helped over 1000+ investors obtain more than 2,000 Green Cards for family members with a 100% I-526 and I-829 approval rate. 

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