The EB-5 visa category was created to make permanent residency available to foreign investors who wish to invest in a U.S. business enterprise that will create jobs. The minimum investment amount is $500,000 or $1 million, depending on project location, and at least 10 jobs per investor must be created in order for the investor and his or her family to qualify for permanent residence.
EB-5 visas were created to stimulate the U.S. economy by making a new source of funding available to projects that need it. In order to push the projects towards the areas that need them the most, the U.S. government has reduced the investment amount when the projects are located in with high rates of unemployment and in rural areas. If an investment is made in a project taking place in a “targeted employment area”, a minimum investment of $500,000 is required. EB-5 investments typically fund new project developments, but they can also be made save failing businesses.
EB-5 investments are attractive to many people with the means to make to the necessary investment because the investment leads to a Green Card for the investor as well as his or her spouse and children under the age of 21. EB-5 investments also do not require permanent employment with the business in which the investment was made or meeting the difficult requirements of many other employment-based visas.
For most investors, the ultimate goal is status as a permanent resident in the U.S. This process is initiated by an investor making a qualifying investment and then filing Form I-526 with the U.S. Citizenship and Immigration Service (or “USCIS”) along with hundreds – and sometimes even thousands – of pages of supporting documents related to the investment project and the investor. We work closely with investors, their representatives, and a team of professionals to create winning petitions that meet and exceed USCIS expectations.
EB-5 cases can be complicated for both investors and for attorneys who have not handled many of them. There are strict requirements for the investment and the investor that must be met before the visa can be granted. We are very experienced in handling EB-5 cases, and we offer a full refund of our legal fees if our client’s petition is not granted.
Making an EB-5 investment
1. Choose a Project
The EB-5 process starts with an investor deciding on a project that suits his or her goals and investment in that project. Investments are most commonly structured as limited partnerships where the investor makes the required investment and receives a share or shares in the partnership.
The investor must deposit the required investment amount either in the project’s operating account or escrow account, where it must be released upon petition approval – the investment must be a real one. One key legal requirement is that an EB-5 investment must be considered “at risk.” That means the investment funds must actually be invested in the project and the funds must be available to be used for business purposes upon I-526 approval – most EB-5 projects make use of escrow agreement that releases the funds to the project upon approval of the investor’s I-526 petition. Additionally, this means the investment project must have access to the full investment amount – an investor cannot give only a portion of the required amount (or issue a note that makes a portion payable upon a certain event).
“At risk” also means that the investment capital cannot be guaranteed. If an investment was made into a project which guaranteed the return of the funds, it would not be considered at risk and that petition denied. In any EB-5 investment, there must be the chance of a loss or the possibility of a gain. That is why project selection in EB-5 is so critical for investors – if their investment must be at risk, they would be wise to select an investment project that is as secure as possible.
2. Filing the I-526 Petition
The immigration process truly begins when an investor files an I-526 petition with the USCIS. There are two different parts of an I-526 petition – project-related documents and personal ones. All documents must work together to demonstrate that an investor is eligible for the immigration benefits they are seeking, and we are skilled at preparing petitions that will get approved.
To accumulate strong evidence about the EB-5 project, our attorneys work with project developers to prepare a set of documents to demonstrate the EB-5 project is real, viable and likely to create the required jobs. To do that, the project must have a comprehensive business plan, realistic financial projections, and an economist’s report that shows the required number of jobs will be created. Fortunately for our clients, a number of the attorneys at our office often also work on the development side of projects. We know the documents that projects must provide for investors to be successful.
In addition to providing evidence about the project, EB-5 investors must also prove that they lawfully accumulated their investment funds. We work closely with our clients to clearly explain and document to the USCIS how our clients earned the money they invested in the projects. We do that by working with our clients to understand their financial history and then we create a logical explanation which shows how the funds were transferred from the client to the investment project.
3. Consular Processing or Adjustment of Status
After I-526 approval, investors must either schedule an interview at the consulate in their home countries or, if they are already in the U.S. on another status, they may adjust status and receive their green card without leaving the country. We handle all steps involved in either process.
For investors seeking visas abroad, our staff prepares forms and documents required by the U.S. Department of State on behalf of our clients. We also are happy to assist with preparing clients for their consular interview, both by providing documents and making our staff available to our overseas clients by telephone or Skype. Investors receive an immigrant visa from their home consulate or embassy and enter the U.S. thereafter as lawful permanent residents.
For investors adjusting status here, we submit three applications with the USCIS. The most important one seeking to adjust to lawful permanent resident status, but also one seeking Advance Parole and one for Work Authorization, which will allow the investor to work in the U.S. or travel and return from abroad while the Adjustment of Status is pending.
In both of these cases, the end result is the same – upon successfully entering the U.S. on an immigrant visa or adjusting status, investors will receive a two-year Green Card shortly after that.
4. I-829, Removal of Conditions
AII Law and Mercan Group understand that a permanent Green Card is, of course, a primary goal of our investor clients. An EB-5 investor is entitled to a permanent Green Card so long as he or she can document that their investment was properly made and that sufficient jobs have been created. This is done by filing an I-829 petition with the USCIS, which is done shortly before the expiration of the initial two-year Green Card. We work to provide evidence that our client’s investment has been sustain and that it helped create the jobs required. At this stage of the EB-5 process, our office is again uniquely able to help our clients because a number of our attorneys also work on the project development side. For that reason, they know which documents USCIS expects to review and they know where to find those documents or who to work with to obtain them.
An I-829 petition is typically filed within 90 days of the expiration date on the green card. Between filing and when a decision is made, the investor remains in valid status and their green card is automatically extended (and they are also allowed to travel). After I-829 approval, a green card is issued, and it will not have any conditions on it. After five years of permanent residency – which includes the two years of conditional permanent residency – an investor is eligible to apply to become a U.S. citizen. We have worked with and gained approval for a dozen I-829 petitions as well as assisted many clients throughout the naturalization process.
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