EB-5 Visa Attorneys

EB-5 Visa Eligibility Requirements

U.S. immigration law provides several employment-based (EB) paths to permanent residence. The fifth-preference category, called EB-5, allows a foreign investor to seek a green card through an investment that supports U.S. job creation. To qualify for an EB-5 visa, you must invest a specific amount of capital in a qualifying business and meet the program’s job-creation and management requirements. By investing in a U.S. business and creating jobs, you may become eligible for a green card.

Applying for an EB-5 visa requires you to coordinate an immigration case with specific, detailed financial and business actions. Immigration Desk can help you complete that process. We draw on decades of immigration experience and have advised more than 15,000 employers, investors, entrepreneurs, and individuals. From our office in Newton, Massachusetts, outside Boston, we help clients navigate the EB-5 process nationwide.

What Is an EB-5 Visa?

Employment-based immigrant visas fall into five preference categories. EB-1, EB-2, and EB-3 primarily cover workers with different qualifications, while EB-4 covers special immigrants. EB-5 applies to qualifying investors. While many EB visas require employer sponsorship, the EB-5 visa requires that you make a qualifying investment in a new commercial enterprise.

To qualify for an EB-5 visa, you must:

• Invest in a new commercial enterprise;
• Commit the required amount of capital;
• Document how you acquired the capital and how it moved into the enterprise;
• Place the capital at risk;
• Manage the enterprise through daily control or a policy-making role;
• Keep the capital invested and at risk for the required period, generally at least two years; and
• Create at least 10 permanent, full-time positions for qualifying workers.

Your permanent residence is initially conditioned on your good-faith implementation of the investment and job-creation plan, and your first green card through EB-5 is valid for two years. Near the end of that period, you can petition to remove the conditions on your permanent residence if you carry out the investment and job-creation plan in good faith.

How Do You Apply for an EB-5 Visa?

The EB-5 process begins with a qualifying investment and continues through conditional permanent residence. After two years as a conditional resident, you must show that you carried out the investment and job-creation plan. You begin the immigration process by filing an immigrant investor petition with the United States Citizenship and Immigration Services (USCIS).

1. Select and Make a Qualifying Investment

First, select either a standalone investment or a regional center project. You must invest, or be actively investing, the required capital in a new commercial enterprise. You should also collect records that establish the lawful source and transfer of the funds.

2. File Your Immigrant Investor Petition

Next, file Form I-526 for a standalone investment or Form I-526E for a regional center investment. The petition must show that the capital, enterprise, investment structure, management role, and job-creation plan satisfy the EB-5 rules.

Approval establishes your eligibility for EB-5 immigrant classification. Depending on what country you come from and whether USCIS has a backlog when you apply, you may apply for your green card at the same time you submit your immigrant investor petition or after it is approved.

3. Apply for Conditional Permanent Residence

If you are outside the U.S., you generally apply for an immigrant visa through a U.S. consulate after USCIS approves your Form I-526 or I-526E and a visa is available. If you are in the U.S. and eligible to adjust status, you may apply for your green card by submitting Form I-485 to USCIS.

4. Carry Out the Investment and Job-Creation Plan

During conditional residence, the enterprise must implement its business plan and create the required number of jobs. You should preserve financial, ownership, operational, and employment records showing what happened after the initial petition.

Changes or delays do not always defeat an EB-5 case, but you generally must make a good-faith effort to implement your plans.

5. Apply to Remove Conditions

During the 90 days before the second anniversary of obtaining conditional permanent residence status, you must file Form I-829 to petition the USCIS to remove conditions on your permanent residence. By timely filing Form I-829 before your conditional status expires, you extend your conditional resident status while USCIS reviews the petition. If USCIS approves your petition, you and any qualifying dependents will receive permanent residence without the EB-5 conditions.

Job Creation Requirements For an EB-5 Visa Holder

An EB-5 Visa investor must create full-time positions for at least 10 qualifying employees.

For a new commercial enterprise not located within a need-based area, the new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.

For a new commercial enterprise located within a need-based area, the new commercial enterprise can directly or indirectly create the full-time positions.

Directly created jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs. Indirectly created jobs are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise. In the case of a troubled business, the EB-5 investor may rely on the maintenance of the current level of present jobs (still needs to have at least 10 employees) for two years.

A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States. It does not include anyone in non-immigrant status. Full-time positions require a minimum of 35 working hours per week and cannot be temporary, intermittent, or seasonal. Jobs expected to last at least two years are not considered temporary under this legal standard.

EB-5 Visa Filing Problems

• The jobs created cannot be intermittent, temporary, seasonal, or transient. One should prove that the job will at least last two years.
• Document Requirements are intensive.
• Immigrant must have substantial funds to invest.

Talk to Immigration Desk About an EB-5 Visa

An EB-5 application must connect your investment structure, lawfully obtained capital, and resulting jobs to the program’s legal requirements. Your U.S. immigration attorney can help you coordinate your application and guide you through the process of working with USCIS.

At Immigration Desk, we bring decades of focused immigration experience to investor matters. We review proposed structures for immigration issues, prepare source and path-of-funds evidence, complete required filings, and help clients document compliance throughout the EB-5 process. Contact us to discuss whether a proposed investment may support your path to permanent residence.