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EB-5 Introduction

To attract foreign investment, create employment opportunities, and stimulate the U.S. economy, the U.S. government created the fifth category of employment-based immigration—colloquially known as the “EB-5 investor visa,” or just “EB-5”—codified at INA § 203(b)(5), 8 U.S.C. § 1153(b)(5), in order to encourage foreign investment in the United States, and reward those foreign investors with U.S. permanent residence. There is a quota of approximately 10,000 visas each year assigned to qualified foreign investor applicants, including 3,000 visas reserved for foreign investors who found their own companies in a Targeted Employment Area (TEA), and another 3,000 reserved to investors in various Regional Centers (RC).

EB-5 Investor Visa Benefits

1)Multiple entries: multiple entries once EB-5 is approved.

2)Fast: Approximately 6 months to actually get the visa (the fastest application)

3)Permanent residency: 2-year conditional green card to 10-year permanent green card

4)Relatives’ Green Cards: can apply for green cards for the spouse and children under 21 years old of the principal investor at the same time

5)No nationality requirement: no nationality requirements for investment-based immigration applicants

6)No special experience requirements: no resume required

7)No professional degree requirements: no degree requirements at all

8)No special qualification requirements: no qualification requirements

9)No quota requirements: no EB-5 quota limits or long, protracted waiting periods

10)Multiple EB5 applicants can invest in the same enterprise; however, the average investment quota and employment opportunities created by each investor must meet USCIS’s requirements.

EB-5 Investee and Mode

The EB-5 investment visa stipulates that the entities receiving the requisite investment must be enterprises with a profit-making purpose, including Corporations, Limited Liability Companies, Limited Liability Partnerships, and other organizational or individual proprietorship enterprises. As such, non-profit organizations are not included.

1) New Business Enterprise

a. Establish and manage a new enterprise in any American territory; purchase, rebuild or recombine substantially an existing enterprise.

b. Maintain or create 10 or more jobs or employment opportunities on account of the investment

2)Troubled Enterprise

a. The applicant can purchase, operate, and manage a “troubled enterprise.” A troubled enterprise is an enterprise which has existed for more than two years with more than 20% net worth loss in the preceding one to two years prior to the applicant’s filing of the investment-based immigration application (Form I-526).

b. The creation of 10 jobs for qualified U.S. workers is not required of the investor in the “troubled enterprise” scheme of investment.

c. Must maintain at least 10 or more jobs for qualified U.S workers within two years of the immigrant investor’s admission to the United States as a conditional permanent resident.

d.Requires a 40% net worth increase for special cases involving the purchase of an existing enterprise.

3) Regional Center Pilot Program

a. Investors can invest their money in “Regional Centers” approved by USCIS and become a partner or shareholder in a certain development project.

b. Regional Centers don’t require investors to participate in the daily management of the investment.

c. Besides the “direct jobs” created, the “indirect job” opportunities created must meet USCIS’s “10 full time jobs” for qualified U.S employees requirement.

The minimum investment amount

1. The USCIS requires that the minimum investment amount be 1 million USD.

2. To stimulate economic development in faraway U.S. territories, or those with a high unemployment rate, USCIS stipulates that the amount can be adjusted to no less than 500,000 USD, if the investment is in a “Targeted Employment Area,” where the population is less than 20,000 people, or the unemployment rate is 50% higher than the national average.

Create Jobs

1. Two years after Form I-526 is approved the investor’s enterprise must directly hire 10 or more full-time qualified American workers.

2. For investors who invest in Regional Centers, they must prove that the Regional Center is operating according to its approved business plan.

3. For investors who purchase “troubled enterprises,” they must maintain employment numbers at the same level as when they made their original investment.

4. “Qualified U.S workers” include U.S. Citizens, U.S. Green Card holders, and other legal nonimmigrants; this list does not include EB-5 investors, their spouses, or their children.

Application Procedure

1. Filing an investment-based immigration application

The applicant needs to file an I-526 application, entitled “Immigrant Petition by Alien Entrepreneur,” with USCIS, along with all applicable and pertinent supporting documents, including proof of the lawful obtainment of the requisite investment capital, as well as applicable business plans and/or appraisals. The application fee is 1,500 USD and it takes about six months to one year for USCIS to review.

2. Applying for adjustment of status or consular processing (temporary, or “conditional” Green Card)

Similar to some other immigrant visa procedures, once the I-526 is approved the applicant may apply for a Conditional Green Card (also known as a “temporary green card”). If the applicant is physically outside of the U.S. at the time, he or she must apply for an immigrant visa and conduct an interview abroad at an American embassy or consulate (known as “consular processing”). If the applicant is in the U.S., he or she can file an I-485 adjustment of status application with USCIS in order to adjust their status here in the United States. Usually, it takes around 6 to 12 months for USCIS to review such applications. Once the applicant is granted either adjustment of status here in the United States, or they are granted an immigrant visa abroad, the applicant will be given a two-year “temporary” or “conditional” Green Card. This Green Card grants the applicant the same benefits as a regular permanent Green Card does. More so, the applicant’s immediate family (spouse and unmarried children under 21 years of age) can also apply for their permanent residency as beneficiaries of the principal applicant.

3. Applying for a permanent Green Card

Within a period of 90 days prior to the expiration of the “conditional” Green Card, the applicant must file an I-829 “Petition by Entrepreneur to Remove Conditions” application with USCIS, along with a 3,750 USD application fee. The applicant will be eligible to be placed into removal proceedings if they do not file this application within the requisite period of time. The I-829 application to remove the conditions on the applicant’s Green Card will be approved if the applicant has met all of USCIS’s capital and job creation/numbers requirements, and the applicant will be granted a permanent Green Card and be inaugurated as a full-fledged Lawful Permanent Resident (LPR) of the United States. It takes six months to one year for USCIS to review an I-829 application.

Other EB-5 Related Services

1. Company registration, real estate transactions, and business disputes

2. Criminal Law, Civil Law

3. We can invite executives and investors of multinational companies, which plan on establishing new business ventures and enterprises here in the U.S., to come here for a visit.

4. Refer CPAs and doctors for free

5. Apply for visa extensions and Green Cards

6. Provide referrals for schools in the United States for children

7. U.S. cultural life and travel guides

Yerman L1 Visa and Green Card One-stop Service

Our firm can help review and assess your company’s pertinent documents. In addition to our legal professionals we have experienced and professional financial experts at our disposal who can help you with your company’s business plans and/or future proposals. Please contact us if you plan to apply for such a visa and we will send you a detailed document list and information packet. Thank you.

There is no substitute for experience. 30+ years of positive results for our clients.

Mr. Gary J. Yerman, Esq. is one of the most experienced attorneys serving in New York's community.