What is an EB5 Visa?
The EB5 Visa is the US immigrant investor program that grants successful applicants green cards. It allows foreigners who want to invest in enterprises in the United States to become permanent residents. It’s the fifth preference of US employment-based visas.
This visa aims to not encourage foreign investments alone but also boost the US economy. It also aims to foster the development of rural areas in the United States. This visa program was created in 1990 by the US Congress, with an annual numeric cap of 10,000 visas.
There are 4 different tiers of EB5 visas:
- C5 visa: this tier is for investments outside target areas
- T5 visa: this tier is for investments in areas with a high unemployment rate
- R5 visa: this tier is for Investor Pilot Program participants not engaged in target areas
- I5 visa: this tier is for Investor Pilot Program participants
Who is eligible for the EB5 visa?
You’re eligible for the EB5 visa if you are willing and able to:
- Invest in a new commercial enterprise. New enterprises are enterprises established after November 29, 1990
- Invest in an old commercial enterprise and significantly increase their net worth or workforce. A minimum 40% increase in net worth or employee number is required.
- Invest an at-risk capital of up to $1.8 million. Investment in a targeted employment area requires an at-risk capital of $900,000.
Target employment areas (TEA) are areas with at least 150% of the US standard unemployment rate.
The EB5 investor green card visa also requires that your investment create at least 10 full-time jobs for US workers.
This should be achieved in less than 2 years from your visa approval date.
Qualified US workers include US citizens, green card holders, or any US resident authorized to work. They must get at least 35 working hours per week.
Commercial enterprises you can invest in include:
- Sole proprietorships
- Limited and general partnerships
- Holding companies
- Joint ventures
- Business trust
- Other public or privately owned entities
You cannot invest in a non-commercial activity. Furthermore, your capital must be from a legal source.
You can invest cash, equipment, inventory, or cash equivalents and tangible property.
What is the application process for the EB5 Visa?
The application process requires filing Form I-526, DS-260 or Form I-485, and Form I-829. You will complete each of these forms at different stages of your EB5 application process.
Form I-526 is the immigrant petition by alien investor form. This is the main form for applying as a foreign investor. You can download the form from the official USCIS website. The EB5 visa is a self-petitioning visa. This makes it different from most other employment-based visas that require a job offer from a US-based employer. You will complete the EB5 form yourself without the need for an employer sponsoring your visa. You may also hire an attorney or representative to guide you in completing the form and the entire application process.
Ensure that you complete all sections of the form, most importantly, the section about yourself. After completing the form, be sure to send it to the appropriate USCIS office, as indicated in the application.
DS-260 / Form I-485
After the approval of your Form I-526 application, you will need to file either Form DS-260 or Form I-485, depending on whether you are in or outside the US.
If you are outside the US
If you are outside the United States when your I-526 application is approved, you must seek a visa to travel to the US by filing Form DS-260. The process is called consulate processing. You will have to make an appointment at a US embassy or consulate in your country of residence.
The DS-260 is an online form and is available on the CEAC website. You should file the DS-260 if you reside outside the United States.
If you are in the US.
If you reside in the US, you will have to file Form I-485 to adjust your status. You will use the form to seek status adjustment from nonimmigrant status to immigrant status. Form I-485 is the permanent residency application form.
If your DS-260 form or Form I-485 is approved and you get the EB5 visa, you’ll be admitted as a conditional permanent resident.
Conditional resident status is likened to someone on probation and must prove his worth for the condition to be removed. It implies that you’re only to stay as a permanent resident if you fulfill your employment and investment promises. This is within a minimum of 2 years, as mentioned earlier.
This is a form to remove conditions attached to your conditional permanent resident status. You can file Form I-829 within 90 days immediately before the 2-year period elapses. The form is available on the official USCIS website.
You should file it at the USCIS Dallas Lockbox. If you’ve fulfilled your promises, USCIS will lift the conditions attached to your permanent residency. The condition removal will lead to a full-fledged permanent resident status with a green card that lasts for 10 years and can be renewed indefinitely.
EB5 Application Fees
You have to pay the following application fees for your EB5 visa application:
- Form I-526 filing fee: $3,675.
- DS-260 processing fee: $325
- Form I-485 filing fee:
- $750 form fee for applicants under 14 and filing with the application of at least one parent.
- $1,140 form fee for applicants under 14 and not filing with the application of at least one parent.
- $1,140 form fee for applicants aged 14 to 78 and 79 and older.
- Form I-829 filing fee: $3,750
- $85 biometric services fee for applicants aged 14 to 78
- Form I-864, Affidavit of Support filing fee: $120 (if required).
All visa application fees are non-refundable. You must pay the associated fee for your application before it can be processed.
How long does an EB5 Visa processing take?
The processing time for the EB5 visa differs for different countries. Some countries have a low admission cap which could mean higher processing time.
Form I-526 takes approximately 16 months or more to process. Factors affecting this includes number of investors, the investment value, and probability of success.
If you apply via a regional centre with Form I-924, it takes approximately 9 months or more to process. It’ll take a lot longer to process if the USCIS issues a Request For Evidence. The regional centre might take about 3 months to prepare your petition.
For removal of permanent residency conditions, Form I-829 takes approximately 18 months or more.
Medical Examination and Vaccination
Your EB5 visa application requires a medical exam to show that you’re in good health. More specifically, it’s to show that you’re free of any communicable disease of public significance. A medical examination is often accompanied by vaccination.
You should only go for a medical examination after your Form I-526 is approved. If you’re already in the US, you should submit the medical report along with Form I-485. If you’re not in the US, you have to provide the medical report at your visa interview.
Your medical examination must be conducted by a clinic or doctor approved by the US Embassy in your country. The embassy will usually refer you to one. In the US, your medical exam must also be conducted by a USCIS-approved doctor.
You’ll be given a sealed report after your exam. You mustn’t open this seal before submitting it to the USCIS or at your interview. Currently, the COVID-19 vaccination is required for the EB5 visa application. You’ll get information from the embassy on all required vaccinations.
Documents you’ll need for the EB5 visa
The supporting documents you’ll need for your EB5 application differ for the different forms.
For Form I-526
- Evidence of investment or active process of investing
- Business registration records
- Tax returns
- Evidence of other sources of capital
- Certified evidence from courts of civil actions, governmental proceedings, and criminal actions involving money judgments against you. This should be issued within the last 15 years.
- Evidence of creating at least 10 full-time job positions
- Filing fee receipt
For Form I-829
- Bank statements
- Investment invoices and receipts
- Evidence of contracts
- Income quarterly tax statements
- Income tax returns
- Payroll records
- Employees tax documents
- Employees Form I-9
- Filing fee receipt
For Form DS 160 or Form I-485
- Two passport-style photographs
- International passport
- Birth certificate or otherwise
- Form I-864 (if required)
- Police and court records
- Approved Form-I526
- Marriage certificate: if you intend to bring immediate relatives along with you
- Filing fee receipt
You may also need to supply some documents not listed here.
EB5 Immigrant Investor Regional Centres
You can directly apply as an immigrant investor using the instructions provided above. Alternatively, you can apply via regional centres. These centres are designated by USCIS exclusively for the EB5 visa program.
The difference is that you won’t be in maximum control of your investment as the regional centre will help you manage your investment. You still need to meet all requirements as with the direct investment.
However, the process is a lot less complicated as it involves indirect job creation. You have to file Form I-924 to invest via a regional centre. The form is available on the USCIS website.
Applying via a USCIS designated regional centre attracts a filing fee of $17,795. You can check the USCIS page for a list of approved immigrant investor regional centres. This list is periodically updated, so always check to be sure a regional centre is still approved.
EB5 Visa Interview
Your visa interview is the last stage of your application. You need to attend this interview at the US Embassy or Consulate in your country. At the interview, you’ll be asked various questions to support your application verdict.
The date for your visa will be communicated to you by the embassy. It could take months for your interview date to arrive due to the long processing time of EB5 visas. You should carry all required documents while going to your interview. Missing one document could result in a visa denial or stalling.
You should get clear details from the embassy on all documents that apply to your petition. Also, you can hire an immigration lawyer to assist if you can afford one. The interviewer can ask as many questions as they want. However, visa interviews usually don’t take too much time.
The answers you provide must align with the documents you provide for your application to be approved. Upon approval, you’ll be given a sealed package to submit at your point of entry.
EB5 Visa Denial
Your EB5 visa application can be rejected for any of the following reasons:
- Inaccurate and inconsistent information
- Absence of important documents and evidence
- Wrong petition filing
- Criminal records or negative history of stay in the US
- Lack of investment funds
- Illegal source of funds
Your visa will be easily approved if you have all the requirements and documents. If your visa is denied, you should read the denial notice. This explains why your visa was denied and if you can reapply or appeal.
There are possible legal means to explore if USCIS denies your visa application. They include:
- Motion to reopen
You can move a motion to reopen if you were missing a document or evidence you now have. The new document or evidence but be substantial enough to provoke a different verdict.
- Motion to reconsider
You can move a motion to reconsider if you believe the verdict is wrong. This should be handled by an immigration lawyer as it requires in-depth knowledge of US immigration law.
You can also appeal your case to the USCIS Administrative Appeals Office (AAO). The Appeals Office will review your petition for any inconsistency that may have affected the verdict.
Last modified on July 17th, 2023 at 6:50 am
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The EB5 visa is a permanent visa, which grants an indefinite stay in the US (green card). However, at the initial stage, you will only receive a conditional status that lasts for two years. If you meet all the requirements attached to your EB5 visa and investment, the conditions would be removed, and you will have an indefinite, unconditional permanent resident status.
For investment via regional centres, you’ll get your money back. When you get it back depends on the agreements you signed.
EB5 green card holders can bring their spouses and unmarried children below 21 years. Their application should be filed along with the Form I-526.