EB5 — Guide from Application to Approval

Purpose of the EB5 Program

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EB5 Program

Last Updated: 3/20/2020

The EB5 Program originated with the Immigrant Investor Program created by the U.S. Congress in 1990 and its intention is to promote economic growth by attracting foreign capital. Currently, 10,000 spots are available per year for qualified candidates and the investment required to become a suitable candidate ranges from $500,000 to $1,000,000 depending on certain criteria.

The EB-5 Program gives the investor access to a lawful permanent resident along with his immediate family.

EB5 Program Pros

· The investor has more control over his invested capital, as he can freely pick which venture he will decide to participate in.

· A partnership or any other form of association can be formed with other individuals who may be interested in investing on the enterprise, which allows the investor to gain access to potentially more attractive investment opportunities by pooling capital.

· The day-to-day operations of the business venture will be in the hands of the investor or its partners, giving the investor much more control over the outcome of it.

· The overall risk of the investment is much more controlled as the investor will probably decide to put his money into business models that he is familiar with and expect good results from.

EB5 Program Cons

· For a foreign investor, U.S. market conditions may be unfamiliar, therefore there’s a high risk that he may fail at attempting to establish a business successfully.

· The amount invested is very high ($500,000 to $1,000,000) and failing to implement the business idea as expected will implicate a substantial loss of capital.

· The business must employ 10 U.S. citizens at full-time within the next 2 years after the visa application is received, which creates a lot of pressure for the business owner.

Program Requirements

· Invest in a New Commercial Enterprise

o It must have been established after Nov 29, 1990; or

o It could have been established before or on Nov 29, 1990, yet in that case:

§ It must be restructured or reorganized in a way that a new enterprise emerged as a result.

§ Its net worth or number of employees must increase by at least 40% as a result of the investment.

o The investor may contact a Regional Center designated by the USCIS in order to find projects that also qualify for an EB-5 Visa application.

· Jobs must be either created or preserved depending on the nature of the enterprise.

o For new commercial enterprises not located within a regional center, 10 full-time direct job positions for qualified employees must be created during the first 2 years.

o For new commercial enterprises within a regional center, the same requirement applies yet the 10 positions can be either direct (employed by the enterprise) or indirect (employed by a third-party as a result of the creation of the enterprise).

o For troubled businesses, the investor must preserve the number of job positions existing at the pre-investment level for at least 2 years.

· A minimum investment of $500,000 to $1,000,000 is required.

o For general projects, the minimum amount to be invested is $1,000,000.

o For a project located in a Targeted Employment Area, the minimum investment will be $500,000.

EB5 Duration

A Conditional Green Card will be granted to the investor and his family with a duration of 2 years during which the investor must accomplish the required conditions to eventually apply and get approved for a new Green Card without any conditions attached.

Application Requirements

Required Documentation

The following forms must be filed to apply for the EB5 Program:

· Form I-526, Immigrant Petition by Alien Entrepreneur.

o These supporting documents must be presented along with Form I-526.

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Form I-526 USCIS

§ Evidence that you invested or are in the process of investing in a new commercial enterprise. Documents related to the acquisition or incorporation process of the new enterprise will serve as proof.

§ Evidence that the investor will be involved on the day-to-day management of the new enterprise. A government-issued certificate that indicates that the investor is fulfilling a job position within the company may serve as proof.

§ Evidence that the minimum investment required for the application has been fulfilled. This also includes certifications that the invested funds come from lawful sources.

§ Evidence that the job creation or preservation plan has been either fully implemented or it is being implemented. A business plan may be submitted with the application if the job positions haven’t been created or fulfilled yet. In the case of troubled businesses, evidence that existing employees were retained during a period of at least 2 years must be presented.

Following the approval of this form, any of these two forms may be filed:

· Form I-485, Application to Register Permanent Residence or Adjust Status, or;

· Form DS-260, Application for Immigrant Visa and Alien Registration

Processing time

It takes approximately 5 months for the U.S. Citizen and Immigration Services (USCIS) to process the Form I-526.

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EB5-Processing Time

Application Process

Renewal Process

There are two types of renewals that have to be done with the EB5 program and these are:

1. Remove conditions on your 2-year conditional Green Card:

a. File form I-829.

b. Pay a filing fee of $3,750.

c. Pay a biometrics fee of $85.

2. Renew 10-year unconditional Green Card:

a. File form I-90.

b. Pay a filing fee of $540.

c. Pay a biometrics fee of $85.

Tips for A Good EB-5 Application

Toppins, a law firm located in Houston, Texas that specializes in immigration law, provides a few tips for EB5 applicants:

1. Make sure you file the right application form.

For EB5 the correct application form is the I-526 and it can be easily obtained in the USCIS website. Applicants must also be careful when filing the application as any mistakes made will create delays in the process.

2. Your investment has to be ‘at risk’.

This means that, as part of the agreement established when committing to the new enterprise, there can’t be a guarantee that the invested funds will be repaid to the investor at any given point in time, except for the natural return on investment to be expected from the business venture.

3. Gather adequate evidence to back the legit source of your investment funds.

It is essential that the EB5 applicant is able to prove the source of its funds and the legitimacy of how they were obtained. Regardless of the nature of them, either the sale of commercial or residential property in some other country or the ownership of an enterprise, there has to be evidence that the origin of such funds is legit.

4. Don’t travel outside the U.S. for more than 6 months.

After the two years of the conditional Green Card has expired, if all conditions are met, the candidate will be granted with the removal of such conditions and he will enjoy the benefits of an unconditional Green Card. Nevertheless, this permanent residency comes with the limitation that the holder can’t remain outside the U.S. for a period longer than 6 months. Else, the permanent residency status may be stripped away.

Tips for Hiring an Immigration Lawyer for your EB-5 Application

Picking an attorney who specializes in immigration law is essential to make sure your needs and doubts are well served and your application process is carried on adequately. Here are a few tips we have compiled for you to help you in this endeavor:

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EB5 Visa Tips

1. Check the law firm with its local Bar Association.

All states within the United States have a Bar Association that can inform you if any formal claims have been filed against a certain lawyer or law firm. You can call them or pay them a visit before you commit any money to your prospective legal counselor. You can find a list of all State Bar Associations in the United States here.

2. Check if the lawyer or law firm is a part of the American Immigration Lawyer Association (AILA)

Immigration law is a specialized field and your lawyer must be an experienced professional in this area of expertise to make sure you are getting counsel from someone who knows the caveats of the application and approval process. The AILA can confirm for you if any particular lawyer is an active member of the association.

3. Check your lawyer with the Better Business Bureau (BBB).

The BBB tracks the performance of several business entities and you can browse your prospective law firm through their directory to make sure they don’t have any significant claims that may indicate they may not serve as proper counselors.

4. Know which questions to ask.

There are dozens of useful articles on the internet that you can read to develop a list of valuable questions that you may ask your prospective immigration lawyer to make sure he’s the right candidate for the job. Google your way to a great first interview.

Written by

Pro Business Plans works with clients to prepare business plans, pitch decks, and other materials for investment and market research. | www.business-plans.com

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