EB-5 Investor Visas

(Français: Le visa d’investisseur EB-5)

Under U.S. immigration law, 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their investment in a new commercial enterprise. This visa program is widely known as the EB-5 visa program, based on the U.S. government’s immigrant visa classification of “Employment-Based Fifth Preference.”

Investment in a "New Commercial Enterprise"

Investors may apply for U.S. Permanent Resident status based on EB-5 eligibility if they have invested – or are actively in the process of investing – at least $1,000,000 into a new commercial enterprise (“NCE”). The following may qualify as a NCE:

  1. The creation of an original business.
  2. The purchase of an existing business.
  3. Restructuring, reorganizing or expanding an existing business to the extent that a new commercial enterprise results.

Employment of U.S. Workers

In order to obtain U.S. Permanent Residency as an immigrant investor, a person filing an I-526 Immigrant Petition by Alien Entrepreneur with the U.S. Citizenship and Immigration Service (“USCIS”) must show that his or her investment will create full-time employment for at least 10 U.S. workers (U.S. citizens, U.S. Permanent Residents, or political asylees), or that the investment will maintain the number of existing employees in a “troubled business.”

"Targeted Employment Areas"

If the investment in a new commercial enterprise is made in a Targeted Employment Area (“TEA”), the required investment is decreased to the level of $500,000. A TEA is defined as either a “high unemployment area” in an urban setting (part of a metropolitan statistical area) that has an unemployment rate at least 50 percent higher than the national average rate or a “rural area.”

I-526 Immigrant Petition: Documentation and Process

Persons filing I-526 Immigrant Petitions for the EB-5 visa program must show proof that they meet all of the requirements of the program, including proof of the following:

  1. Having made the investment. This can be done by showing the transfer of funds into a bank’s escrow account that has been designated for the investment project. The funds may remain in the escrow account until the I-526 Petition is approved by the USCIS or they may be disbursed and spent in support of the investment project prior to the approval of the I-526 Petition, depending on the terms and conditions of the investment project.

  2. Having obtained the amount of the investment legitimately. This is often referred to as the Source of Funds requirement. The investor must provide proof of having legitimately earned or otherwise received the income used for the investment. This includes providing proof of the income covering the 5-year period before the date that the I-526 Petition is filed. While this can be done by providing copies of income tax returns for the preceding five years, other methods of proving the funds were acquired legitimately have to be used by investors who live and work in countries where filing income tax returns is not required.

  3. The viability of the investment. This includes providing a detailed business plan, showing an analysis of the market and the competitive environment in which the business will be operating, projected gross income, net income, and expenses for the first three years of operations, and other supporting documentation, which typically includes a lease for the business that will be the investment project, or documents showing ownership of the property where the business will be located, and other evidence of efforts that have already taken place to establish and open the business.

When the USCIS determines that all of the requirements have been met, the I-526 Petition will be approved. The USCIS will then transfer the case to the U.S. Department of State for the next phase of Permanent Residency processing, known as “Consular Processing,” which will lead to the visa applicant being scheduled for an immigrant visa interview at the United States Embassy or Consulate in the country where the petitioner is a citizen or has currently established residency.

Upon the successful completion of the visa interview, the U.S. Embassy or Consulate will issue an immigrant visa to the applicant. The visa will be valid for 180 days, for travel to the United States, for the purpose of being admitted into the United States as a U.S. Permanent Resident.

I-829 Petition by Entrepreneur to Remove Conditions

The investor’s U.S. Permanent Residency will first be conditional, for an initial period of two years. At the end of that two-year period, the investor will file an I-829 Petition by Entrepreneur to Remove Conditions. The I-829 Petition will be filed with the USCIS and provide evidence that the project that has been invested in is a viable, ongoing business that has created at least 10 new jobs for U.S. workers. When the USCIS approves the I-829 Petition, it will issue a new Permanent Resident Card to the foreign national, which will be valid for 10 years and renewable on an ongoing basis every 10 years.

N-400 Application for U.S. Citizenship

An immigrant investor may file an N-400 Application for U.S. citizenship with the USCIS as early as 90 days before the five-year anniversary of having first become a U.S. Permanent Resident, although he or she may not be sworn in as a U.S. citizen before the date of the five-year anniversary.

Please contact us for additional information on the criteria for U.S. EB-5 visas and how our firm can help you with the process.

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