In 1990, the EB-5 Program was established to boost the U.S. economy by encouraging job creation and attracting capital investment from foreign investors. In 1992, Congress introduced the Immigrant Investor Program, commonly referred to as the Regional Center Program, which allocates EB-5 visas for individuals who invest in commercial ventures linked to regional centers authorized by the U.S. Citizenship and Immigration Services (USCIS) based on plans aimed at fostering economic development.
The capital investment requirements include cash and all tangible assets, whether real, personal, or a combination thereof, that are owned and controlled by the immigrant investor. All capital will be assessed at its fair market value in U.S. dollars. The term capital does not encompass:
- Assets obtained, whether directly or indirectly, through illegal means
- Capital put into a venture in exchange for a note, bond, convertible debt, obligation, or any other form of debt arrangement between the immigrant investor and the new commercial enterprise
- Capital invested that comes with a guaranteed return on the invested amount
- Capital that is subject to any agreement between the immigrant investor and the new commercial enterprise that grants the immigrant investor a contractual right to repayment, although the new commercial enterprise may have the option to buy back the investment, which can be exercised solely at the discretion of the new commercial enterprise.
Other capital requirements include immigrant investors demonstrating that they are the legitimate owners of the invested capital. In certain situations, capital may consist of a promise to pay (a promissory note).
The EB-5 immigrant investor program allows investors (along with their spouses and unmarried children under the age of 21) to apply for lawful permanent residency to become Green Card holders if they invest the required amount in a new commercial enterprise in the United States and intend to create or maintain 10 permanent full-time positions for qualifying U.S. workers. A targeted employment area can be classified, at the point of investment, as either:
- A region classified as rural or
- A location that has faced significant unemployment (at least 150% of the national average unemployment rate).
A new commercial enterprise in this context refers to any for-profit operation established for the continual execution of lawful business activities, which can include:
- A sole proprietorship;
- A partnership (whether limited or general);
- A holding company along with its fully owned subsidiaries (as long as each subsidiary is involved in a for-profit operation formed for the continual execution of a lawful business);
- A joint venture;
- A corporation;
- A business trust;
- A limited liability company; or
- Any other entity, whether publicly or privately owned.
And must have been set up after November 29, 1990, or on or before November 29, 1990. The new commercial enterprise must also be acquired, and the current business must be modified or reorganized so that a new commercial entity emerges or grows through investment, leading to at least a 40% rise in net worth or employee count.
The EB-5 immigrant investor program petition and application process entails you submitting Form I-526), Immigrant Petition by Standalone Investor, used by an individual investor to request USCIS for immigrant status in the United States under section 203(b)(5) of the Immigration and Nationality Act (INA), as revised or Form I-526E, Immigrant Petition by Regional Center Investor, used by an investor combining their funds with one or more eligible immigrants involved in the Regional Center Program. An EB-5 regional center is an economic entity in the United States, whether public or private, that focuses on fostering economic development.
If you have an immigrant visa available to you right away, you can submit Form I-485, Application to Register Permanent Residence or Adjust Status, which can be used to request lawful permanent residency if you are currently in the United States, at the same time as your Form I-526 or Form I-526E, while it is still being processed, or after your Form I-526 or Form I-526E has been approved. To confirm that an immigrant visa is readily accessible when you file your Form I-485, refer to the Visa Availability and Priority Dates and Adjustment of Status Filing Charts, along with the Visa Bulletin, available on their website.
Once your Form I-526 or Form I-526E petition is approved, you can either:
Submit the DS-260, Application for Immigrant Visa and Alien Registration, to the U.S. Department of State to secure an EB-5 visa from abroad for entry into the United States; or Submit Form I-485, Application to Register Permanent Residence or Adjust Status, to USCIS (if you have not already submitted Form I-485 before the approval of your Form I-526 or Form I-526E) to change your status to a conditional permanent resident while in the United States. After the approval of your Form I-485 application or once you enter the United States with an EB-5 immigrant visa, conditional permanent residence will be granted to the EB-5 investor and their qualifying family members for two years.
During the 90 days right before the second anniversary of your adjustment of status or your entry into the United States as a conditional permanent resident, submit Form I-829, Petition by Investor to Eliminate Conditions on Permanent Resident Status, if you are a conditional permanent resident who attained status via a qualifying investment and wish to eliminate the conditions on your residency. If this petition receives approval from USCIS, the conditions attached to your lawful permanent resident status and that of any dependents you have included will be eliminated.
