Article

EB5 Visa Requirements: What You Need to Know

Introduction

The EB5 visa is an investment-based immigrant visa which allows foreign investors to acquire permanent resident status after making a minimum investment of $800,000 in a Targeted Employment Area (TEA) or $1.05 million in other areas.

However, to be able to acquire an EB-5 visa and later on, a permanent green card, there are certain requirements that you must satisfy. With the stringent requirements for an EB5 visa, it is highly recommended that you consult and hire an experienced and qualified EB5 visa attorney who can handle your case from start to finish and ensure that you satisfy all the requirements for the visa.

Major Requirements:

Targeted Employment Areas (TEAs)

The minimum capital investment for the EB5 visa is $1.05 million unless you have invested in a Targeted Employment Area (TEA). TEAs are areas which can be high-unemployment areas or rural areas.

High-unemployment TEAs are areas which must have an unemployment average of at least 150% of the U.S. national unemployment rate. Meanwhile, rural areas are those classified as located outside a metropolitan statistical area (MSA) and with less than 20,000 population.

Please take note that the designation of high-unemployment areas can change depending on the updated census data and the moving employment rates. This is why when filing your EB5 visa application, you must review the most recent census data to ensure that the area where you invested is classified as a TEA.

Determining TEA designation

The Department of Homeland Security (DHS) doesn’t have any required set of data or methodology for applicants and economists to determine TEAs. This gives the applicants the flexibility to demonstrate the TEA status of an EB5 investment.

The DHS accepts data from the Bureau of Labor Statistics (BLS) and the U.S. Census Bureau’s American Community Survey (ACS) in considering TEA designation. Each source presents different details in data, so the foreign investors can choose which source better suits their needs and gives a comprehensive analysis of the TEA.

There are best practices which economists could use to determine whether an area is considered a TEA or not and use to qualify for the lesser minimum investment amount of $800,000:

Direct references. Economists or applicants can use direct references from new regulations to define the geographical area of the TEA.

Transparent and easily accessible resources. Economists and applicants must ensure that their resources are transparent and easily accessible with clear links to the data online.

Comprehensive and transparent calculation. Economists and applicants must present a comprehensive and transparent calculation process which shows all the steps taken in determining the TEA designation.

Please take note that if you fail to present acceptable data for the TEA designation or qualification will lead to a denial of the petition as the investment amount will be deemed insufficient.

EB-5 Business Entities and Eligibility

To acquire an EB-5 visa, foreign investors must invest in a New Commercial Enterprise (NCE) operating as a for-profit business in the U.S. The NCE can be constructed with various business structures such as general or limited partnerships, sole proprietorships, business trusts, or other privately and publicly owned entities.

The EB-5 visa capital investments are always placed into the EB5 fund or the NCE. The NCE will then directly invest these funds into the Job Creating Entity (JCE) or into a series of intermediary entities designed to shield the JCE from legal liabilities. The JCE is considered an entity which is responsible for job creation.

The United States Citizenship and Immigration Services (USCIS) requires that jobs must be created from the EB5 program. These jobs must be at least 10 full-time positions for qualified U.S. workers which must be created within 2 years of the investment and may be extended for a year. Immigrant investors may create these jobs through direct jobs, indirect jobs, or induced jobs. If you made a direct investment, you can only satisfy this requirement through direct jobs. However, if you have invested in a regional centre, jobs may be created through indirect jobs or induced jobs.

Investment amount

The most crucial requirement of an EB-5 visa is the investment amount, which is dependent upon whether you invested in a Targeted Employment Area or not. The minimum investment amount is $800,000 for TEAs and $1.05 million for non-TEAs.

The EB5 investment can be in the form of cash, equipment, inventory, secured indebtedness, tangible property, or cash equivalents valued based on the U.S. dollar fair market value.

Source of funds

The USCIS examines the lawful source of investment funds to combat money laundering and address any security concerns. Immigrant investors must show evidence and supporting documents to establish that the source of their investments is lawful. This ensures transparency and integrity of the program, protecting it from financial improprieties.

There are a variety of lawful sources of funds for your EB5 investment such as salary, stocks, securities, loans, or bank account deposits among others. Immigrant investors must provide sufficient evidence and supporting documents to prove the lawful source of their investment funds. Moreover, they must provide individual and corporate tax returns for the past five years.

If the investor has any missing documents, they can submit a declaration explaining the reasons for the unavailability of such documents. However, while this practice is accepted, it is recommended that you avoid such practice whenever feasible.

Job Creation

It is required that the EB5 investment must result in the creation of at least 10 full-time jobs for qualified U.S. employees, created in the 2 years after the investor has received their conditional permanent resident status. If the investor has made a direct investment, they must prove their investment led to the creation of direct jobs, but if the investor has invested in regional centres, this requirement may be accomplished through indirect or induced jobs.

EB5 Investment Requirements

As it stands, there are two options available for the immigrant investor to meet the investment requirements. You have the option to make a minimum investment of $1.05 million in a commercial enterprise outside a TEA and $800,000 in a TEA.

Targeted Employment Areas are areas which are considered high-unemployment areas or rural areas. High-unemployment TEAs are areas which must have an unemployment average of at least 150% of the U.S. national unemployment rate. Meanwhile, rural areas are those classified as located outside a metropolitan statistical area (MSA) and with less than 20,000 population.

The EB5 investment can be made in various forms including cash, tangible property, equipment, and inventory among others. However, it is required that the immigrant investor must prove the lawful source of the investment funds as the USCIS examines the investment of each applicant for security and to prevent money laundering.

Please take note that the funds must be considered “at-risk” which means they can’t just sit in the business bank account but instead must be used in an active JCE with a risk of loss and a chance for gain.

Employment Creation Requirements

The USCIS demands that the EB5 investment must create at least 10 full-time jobs for qualified U.S. employees within 2 years following the conditional permanent residency.

If the immigrant investor has made a direct investment, job creation is proved only through direct jobs. Meanwhile, if the investor has invested in a regional centre, job creation can also be proved with indirect or induced jobs.

Regional Center Requirements

The immigrant investor can choose to make a direct investment or invest in regional centres. Regional centres introduce immigrant investors to businesses about to be established that need funding. The two crucial entities involved in regional centres are the New Commercial Enterprise (NCE) and the Job Creating Entity (JCE).

As the name suggests, the JCE is the entity that loans and invests the EB5 funds to create jobs while the NCE is the entity the immigrant investor invests in.

Documents Required

As with other visas, the immigrant investor must present supporting documents with their application for it to be valid and for them to prove to the adjudication officer that they possess all the requirements of the EB-5 visa. These documents are as follows:

  • A valid passport, and a copy of personal and family member passports

  • Birth certificate

  • Marriage and/or divorce certificates, if applicable

  • Approved Form I-526 petition

  • Household registration

  • Evidence of any previous immigrant visa applications

  • Certificates of any judgment or pending administrative, civil, or criminal actions against the applicant from any court within the past 15 years

  • Evidence of business ownership

  • Business License

  • Evidence of lawful source of investment funds

  • Detailed and comprehensive business plan

  • Business organization documents and agreement of partnership, if any.

  • Business and personal tax returns for the last 7 years

  • Bank statements for the last 7 years.

  • Evidence that the minimum investment has been made or is in the process of being made

Additional required documents for investments in regional centres

  • Evidence that the investor invested in a designated regional centre in line with the approved business plan

  • Evidence that the business is established in a TEA

  • Evidence that proves the investment made into a regional centre will create the full-time employment

Benefits of an EB-5 Green Card

There are different benefits the immigrant investor can enjoy under the EB5 visa:

Job offer not required. Since the EB5 visa is an investment-based immigrant visa, you don’t need to secure a job offer or sponsorship from an employer, which makes it a good option for investors who want to immigrate to the U.S.

No need to disclose net worth. Immigrant investors are not mandated to reveal their net worth, which gives them privacy and financial discretion.

Minimal participation in the visa application. The immigrant investor is not obligated to engage in the process since the EB-5 visa focuses on the investment and its impact on economic growth rather than extraordinary skills or educational qualifications.

Quick processing. Compared to other visas, the EB5 visa is typically granted quicker than other categories which benefits the immigrant investor and their family, such as their spouse and unmarried children under the age of 21.

Free to work anywhere in the U.S. Compared to other visas, the immigrant investor is not required to strictly work in the EB5 investment and they are free to work anywhere they please in the U.S. This also includes their spouse, should they want to work in the U.S. as well.

Educational opportunity. Immigrant investors and their family members have access to U.S. education

Free to travel anywhere. EB5 visa holders can travel to visa-free or visa-on-arrival countries in the world.

Investment flexibility. Immigrant investors can acquire and start businesses as they please, participating in different economic opportunities in the U.S.

Access to social benefits. Green card holders have access and are eligible for certain social benefits such as social security, medicare, and unemployment insurance provided they meet the requirements.

How to apply

To acquire an EB5 visa, there are different steps the immigrant investor must take. While you are allowed to apply for the visa alone, it is highly recommended that you work with US immigration lawyers in Singapore who can handle your case from start to finish and ensure that you properly comply with the requirements of the visa.

Moreover, the help of your experienced and qualified lawyer can ensure that you focus your time on different things such as improving your investment.

Hire an immigration lawyer. As we have said, it allows that the immigrant investor to handle the visa application process alone. However, with the complexity of the process, it is still highly recommended that they work with an experienced and qualified EB5 visa lawyer.

Choosing an investment. The EB-5 immigrant investor then invests in approved projects or makes a direct investment. If choosing to invest in approved projects, the investor must complete their transaction through the regional centre.

Document collation. Your immigration lawyer can make a list of documentary evidence which you can show to the adjudication officer to prove your qualifications based on your circumstances. Any document that’s written in a foreign language must be accompanied by an English translation certified complete and accurate by a translator.

Investing. After collating documents and choosing an investment, the immigrant investor must make the required minimum investment of $800,000 in a TEA or $1,05 million in other areas.

Submission of documents. Your lawyer will then file Form I-526E for you including the supporting documents.

Approval of the visa application. The US Migration Service then reviews the investor’s documents and application, which can roughly take 3 to 4 years. The investor can move with their family to the U.S. at this point and wait for the approval of the application.

Acquire a conditional green card. The investor would then need to complete a Form DS-260 (Immigrant Visa Electronic Application) and go to the U.S. Embassy or Consulate for the interview. The National Visa Center (NVC) will notify of the location and time of the interview, and any document that the investor should bring.

If the investor is already residing in the U.S. under another valid status, they would need to file a Form I-485 (Application to Register Permanent Residence or Adjust Status)

Obtaining a permanent green card. 21 months after the approval of the EB5 visa, the investor can file a Form I-829 petition with the USCIS to remove restrictions on their conditional green card and become lawful permanent residents.

Conclusion

If you want to acquire permanent resident status in the U.S. while also having access to the economic viability of the U.S. to further your investment portfolio, the EB5 visa is a good visa choice. However, as with other immigrant visas, this visa has strict requirements which you must satisfy.

The help of an experienced and qualified EB5 visa lawyer in Singapore can ensure that you satisfy each of the EB5 visa requirements while also providing you with catered solutions based on your circumstances.

FAQs

What is the EB5 program?

The EB5 immigrant investor program allows foreign investors to acquire permanent residence in the U.S. after making a minimum investment, the amount of which is dependent on the area where they invested.

Does the EB5 visa have restrictions on nationality?

No, anyone can apply for the visa as long as they meet the requirements of the EB5 visa.

What is the minimum investment for the EB5 visa?

The minimum investment is dependent on where you made your investment. In TEAs, the minimum investment is $800,000 while it’s $1.05 million in other areas.

What are other fees associated with investing in regional centres?

Aside from the minimum investment, there’s also an additional administration fee charged by regional centers from immigrant investors to conduct business-related tasks as part of the investment process. This fee can range from $50,000 to $70,000.

Jeremy Abernathy

9 January 2024

I had the pleasure of working with Verdie and Nessa to obtain my E2 Visa. Their in-depth knowledge and experience allowed me to be fully prepared in my application and they were able to answer all questions leading up to the Visa interview.

Saeed Muhammad

15 December 2023

Verdie was an amazing attorney, providing exceptional client care throughout the process. He had a great depth of knowledge in all areas on business visas in the US.

Satya Choudhury

20 September 2023

I had a great experience with Davies & Associates. They are very thorough in the approach and their have experts in this field who know the domain very well.I would certainly be leaning onto them for any future needs as well.

Hoshino Ryuichi

12 September 2023

Thanks to them for handling my E2 visa very professionally. I had a study visa from F1 and changed it to E2. I encountered many problems during the application process. Verdie and Etta were very patient in helping me and it took a long time. I highly recommend this place.

Mark I. Davies
Mark I. Davies
Dual qualified as a lawyer in the United States and the United Kingdom, Mark I. Davies is the Global Managing Partner and founder of our firm. Mark also Chairs our Global Business and Investor visa team and focuses his practice on EB5, L1, E2 and other business and investor visa solutions. A former General Counsel, Mark is relied on as primary counsel to major corporations, investors, non-profits and businesses of all sizes.

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