USCIS administers the EB-5 Program. Under this program, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card (permanent residence) if they:
Make the necessary investment in a commercial enterprise in the United States; and
Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.
This program is known as EB-5 for the name of the employment-based fifth preference visa that participants receive.
Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.
About the EB-5 Visa
Visa Description
USCIS administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.
The EB-5 Adjudications Policy Memorandum is the guiding document for USCIS administration of the EB-5 program. It builds upon prior policy guidance for adjudicating EB-5 and is applicable to, and binding on, all USCIS employees.
All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:
Established after Nov. 29, 1990, or
Established on or before Nov. 29, 1990, that is:
1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
A sole proprietorship
Partnership (whether limited or general)
Holding company
Joint venture
Corporation
Business trust or other entity, which may be publicly or privately owned
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
Note: This definition does not include noncommercial activity such as owning and operating a personal residence.
Job Creation Requirements
Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
Create or preserve either direct or indirect jobs:
Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.
Note: Investors may only be credited with preserving jobs in a troubled business.
A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.
A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.
Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.
A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.
Capital Investment Requirements
Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.
Note: Investment capital cannot be borrowed.
Required minimum investments are:
General. The minimum qualifying investment in the United States is $1 million.
Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.
A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.
A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.
EB-5 Immigrant Investor Process
Application Process
File Form I-526, Petition by Alien Entrepreneur
Upon approval of Form I-526 petition, either:
File Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS to adjust status to a conditional permanent resident within the United States, or
File DS-230 or DS-260, Application for Immigrant Visa and Alien Registration, with the U.S. Department of State to obtain an EB-5 visa for admission to the United States.
Upon the approval of the I-485 application or upon entry into the United States with an EB-5 immigrant visa, the EB-5 investor and derivative family members will be granted conditional permanent residence for a two-year period.
Removing Conditions
File Form I-829, Petition by Entrepreneur to Remove Conditions, 90 days before the two-year anniversary of the granting of the EB-5 investor’s conditional resident status (Green Card).
List only the conditional resident’s address on Form I-829.
If USCIS approves this petition, the conditions will be removed from the EB-5 applicant’s status and the EB-5 investor and derivative family members will be allowed to permanently live and work in the United States
Form I-526 Petition for an Alien Entrepreneur
Requirements
Supporting Documents (Evidence)*
New Commercial Enterprise
Evidence that you have invested in a “for profit” new commercial enterprise, which is a commercial enterprise:
Established after Nov. 29, 1990, or
Established on or before Nov. 29, 1990, that is:
Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs
Evidence, if applicable, that your new commercial enterprise has been established and is principally doing business in a targeted employment area (TEA).
Managing the New Commercial Enterprise
Evidence that you will be actively involved in the management of the new commercial enterprise (day-to-day or through policy).
Investment
Evidence that you have invested or are in the process of investing the amount required ($1 million or $500,000).
Evidence that the investment funds were obtained through lawful means. Evidence that the capital used was legally acquired may be demonstrated by the following:
Foreign business registration records
Personal and business tax returns, or other tax returns of any kind filed anywhere in the world within the previous five years
Documents identifying any other source of money
Certified copies of all pending civil or criminal actions and proceedings, or any private civil actions involving money judgments against the investor within the past 15 years
Job Creation
Evidence that the new commercial enterprise will create at least 10 full-time positions—not including yourself, your spouse, sons or daughters, or any temporary or nonimmigrant workers, or individuals who are not authorized to work in the United States. You will need to submit a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than 10 employees will result. Include approximate dates, within the next two years, and when each employee will be hired.
* Note: Regional center-affiliated cases must show that the capital investment was made in accordance with the regional center’s business plan in order to be credited with the creation of indirect jobs.
Job Preservation—Troubled Business
The same evidence which is mentioned above for job creation except instead of the evidence that the business will create at least 10 new jobs, you must submit evidence that:
The number of existing jobs is being or will be maintained at no less than the pre-investment level for a period of at least two years. Photocopies of tax records, Forms I-9 (Employment Eligibility Verification), or other relevant documents for the qualifying employees and a comprehensive business plan shall be submitted in support of the petition.
* Note: To be approvable, at least 10 jobs must be maintained.
* Note: Regional center-affiliated cases must show that the capital investment was made in accordance with the regional center’s business plan in order to be credited with the preservation of indirect jobs.
Form I-829 Petition by Entrepreneur to Remove Conditions
You must submit Form I-829 within the 90-day period immediately before the second year anniversary of your admission to the U.S. as a conditional permanent resident.
Requirements
Supporting Documents (Evidence)*
Investment
Evidence that you in fact invested in a new commercial enterprise. This evidence may include, but is not limited to, copies of the business’ organizational documents and federal tax returns.
Evidence that you have invested or are actively in the process of investing the total amount of required funds.
Evidence that you have sustained your investment in the new commercial enterprise throughout your two-year period of conditional permanent residence. This evidence may include, but is not limited to, the following:
Business invoices and receipts
Bank statements
Contracts
Business licenses
Audited or reviewed financial statements.
Complete copies of federal or state income tax returns or quarterly tax statements
Job Creation
Evidence that you created or will create within a reasonable time 10 full-time jobs for qualifying employees. Such evidence may include, but is not limited to:
Business payroll records
Relevant tax documents
Employee Forms I-9
Job Preservation—Troubled Business
The same documentary requirements for job creation mentioned above, except that the investor must show that he or she has maintained (not created) the number of existing employees at no less than the pre-investment level for the period following his or her admission as a conditional permanent resident.
*Note: To be approvable, at least 10 jobs must be maintained.
*Note: Regional center-affiliated cases must show that the capital investment was made in accordance with the regional center’s business plan in order to be credited with the preservation of indirect jobs.
Dependents
Your spouse and unmarried children under the age of 21 may be admitted to the U.S. with you on a two-year conditional period. If your I-829 petition to remove conditions is approved, the conditions will be removed from your spouse and children’s Green Card status. As a lawful permanent residents (Green Card holders) your spouse and children will be authorized to work or attend school in the U.S.
