To EB or not to EB, that is the Question

Many of the clients and potential clients that we meet, looking to bring their pre-existing businesses to the US or to establish new ones, are bamboozled about the range of visas that are available to them. GS2, while not marketing itself as an immigration law firm, handles all of the immigration applications for its clients and is well placed to answer these questions quickly rather than charging thousands to the unsuspecting foreigner as others might.

One of the main areas of interest concerns the EB-5 Investment visa program or the “Million Dollar Green Card” as it has become known colloquially. So what is it? How does it work? Why is this visa better than the others?

EB-5 in Short

EB-5 was instituted as a pilot program to encourage high net worth individuals to relocate to the US, create jobs via investment and to bring goods and services to the US market. The program has to be re-authorized every 5 years by the government and currently is due to expire on September 30th, 2012.

The basic requirements are that a significant investment must be made into a business venture that creates no less than 10 new job opportunities for qualified Americans (the family of the applicant do not count). However, to smooth the path for investment into geographic areas that require inward investment[1], there are certain pre-existing businesses that have been approved aka Regional Centers. This gives an element of flexibility, as there are some who wish to have direct involvement in the running of a business and others who have no desire to tackle a new marketplace.

Attractive Points

  • Investors who do not qualify for E2 can qualify for EB-5
  • It is open to people from non-treaty countries
  • L-1 applicants from China with cases under Consular investigation are eligible
  • F-1 students who wish to start a business can apply
  • Permanent visa granted for Applicant, spouse and unmarried children under age of 21
  • Freedom to work anywhere in the US
  • Have benefits of US citizens (education, property tax saving in certain states)
  • Freedom to travel in and out of the US
  • Applicant does not have to live in the same area as the investment
  • EB-5 Regional Centers are always in need of investment
  • There are 10,000 EB-5 investor visas available each year (5,000 of which are reserved for investors in EB-5 Regional Centers)
  • Retirees can invest in EB-5 Regional Centers

Who is Eligible?

  1. Anyone who has the ability to invest or is in the process of investing at least $1,000,000 or $500,000 (in a high unemployment or rural area).
  2. The investment must benefit the U.S. economy by providing goods or services to U.S. markets and create full-time employment for at least 10 U.S. workers.
  3. The investor must be involved in the day-to-day management of the new business or directly manage it through formulating business policy

When Investing into Regional Centers Be Aware Of

  • The approval status of the investment
  • The history of the Regional Center
  • That any investment is refundable in the event of denial of an application
  • List of Approved Regional Centers

Criteria for removal of conditions of Green Card:

a)    The required investment was made

b)   The investment was maintained during the 2 year period

c)     If jobs are indirectly created and you want to count them towards the 10, that the regional center has kept its approval status

The Process

Step Stage Time
1 I-526 Immigration Petition USCIS review approx 3-5 months
2 Regional Center’s Escrow Agent unconditionally releases subscription balance to Regional Center On approval of 1 above
3 If Investor is already lawfully in US: 

I-485 application in the US to adjust to Conditional permanent residence

USCIS review approx 6 months
3a If Investor is overseas:
Visa application to US Consulate
Consular Review approx. 6 months
4 Investor gains U.S Permanent Residency with Conditions for 2 years
5 Months 21-24 I-829 petition to remove conditional nature of permanent residence USCIS review approx 12 months  

6 Removal of Conditional status of Permanent Residency – A US residence must be maintained and the holder cannot live outside the U.S. for a period of one year or longer.
7 U.S Citizenship (Optional) 5 years from time of Permanent Residency Approval. 

RG


[1] Defined at section 203(b)(5)(B) of the Immigration Nationality Act (INA)