The EB-5 visa program benefits both foreign nationals interested in securing U.S. lawful permanent resident status and the nation, as these immigrants invest in companies, spurring the creation of American jobs.
Immigrants wishing to obtain EB-5 green card eligibility must strictly follow the requirements set forth by the United States Citizen and Immigration Service (USCIS). If approved, EB-5 green card eligibility extends to the applicant, spouse and his or her unmarried children under the age of 21.
EB-5 Visa Requirements
EB-5 visa requirements are capital specific. EB-5 requirements include a minimum of $1.8 million in capital for a new commercial enterprise. The capital amount is cut in half, to $900,000, if the investment occurs in a Targeted Employment Area (TEA). Such TEAs are found either in areas of high unemployment or rural areas.
For EB-5 purposes, high unemployment is considered a location with an unemployment level that is at least 150 percent higher than the national rate. A rural area is defined as locations outside a city or town with a population of at least 20,000.
Other EB-5 Requirements
Your attorney will prepare Form I-526, “Immigrant Petition by Alien Entrepreneur.” Along with attorney fees, expect to pay $3,675 to file your Form I-526. The form requires substantial documentation accompanying it.
EB-5 Requirements for Documentation
USCIS requires that the source of any investment made through the EB-5 program be lawfully sourced. USCIS also requires strict documentation as to how the investor’s funds are acquired. If there is any evidence that funds were acquired illegally, or if the source of funds cannot be sufficiently documented, the application will be denied.
EB-5 investors should submit the following documentation for investment funds:
- A minimum of two years of banking records
- Personal tax returns for the previous five years
- Business income tax records for the previous five years
- Business ownership proof, such as registration or licensing
- Employment certificates
- Ownership proof of other relevant securities
In some cases, the EB-5 applicant may use gifted funds for his or her EB-5 investment; however, documentation as to the sources of these funds remains necessary. If your funding comes partially or totally from gifts, you must provide the USCIS with:
- Documentation detailing how the gift was received
- Death certificate when the gift is an inheritance
- Proof of inheritance tax paid
- Gift tax returns
- If donated, documentation of the relationship between the donor and investor
- Donor documentation showing that they have the funding to provide a gift
When gifts are involved, the USCIS wants to ensure that the donor earned the donated funds legally. If you are relying on gifted funds, be prepared to provide extensive documentation both with respect to the circumstances of the gift and the donor’s source of funds.
EB-5 Category Requirements
EB-5 investors may pursue either direct investment or regional center options. In either case, the USCIS requires investment in a new commercial enterprise. Such a new commercial enterprise is one that is established after November 29, 1990. If the commercial enterprise was established prior to that date, the following additional requirements must be met:
- The business is purchased and restructured or reorganized in such a way that a new commercial enterprise results.
- Investment expansion occurs so that there is at least a 40 percent increase in the number of employees or the commercial enterprise’s net worth.
EB-5 direct investment requirements include creating at least 10 full-time jobs for qualifying employees within two years. Qualifying employees are U.S. citizens or lawful permanent residents or other immigrants authorized to work in the U.S., including conditional residents, refugees, and asylees. For purposes of calculating employment from the new commercial enterprise, the EB-5 investor and his or her spouse and children are not counted.
Investors may prefer to make their qualifying investment in a regional center sponsored project. While the EB-5 investor must still create 10 full-time jobs, direct and indirect job creation is included in these types of transactions. (An indirect job is one created by an enterprise sponsored by a regional center, which would not have occurred without the existence of the EB-5 regional center project.)
Additional Evidence for EB-5 Requirements
When filing the Form I-526, the applicant must provide additional support that the investment has complied with the law and regulations governing the EB-5 program. You should consult with your immigration attorney to ensure that you will be able to properly document your compliance with the requirements of the program.
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