EB-5 Questions and Answers

Disclaimer: These questions and answers are general in nature and should not be relied upon as legal advice or specific to your personal situation.

What is the EB-5 Immigrant Investment Visa Program?

The immigrant visa category for alien entrepreneurs (“EB-5″) was created by the Immigration Act of 1990. In general terms, the EB-5 program requires an alien to “invest or be actively in the process of investing,” either US$1,000,000 or US$500,000, which is “at risk” in a “new or existing business enterprise” that directly or indirectly results in the creation or preservation of ten full time (at least 35 hours per week) jobs for a two year period. A successful applicant can earn permanent residency for him or herself, a spouse and their unmarried children under age 21.

How many immigrant visas are allotted for this classification?

The EB-5 program allocates 10,000 visas per year for aliens and their qualifying family members whose investment result in the creation or preservation of at least 10 full-time jobs for U.S. workers.As of 2013, this “quota” has never been filled.

What makes the EB-5 Visa program different from the L-1 (manager transfer) or E-2 (Treaty /Investor)?

EB-5 can lead to a green card requiring no renewal. E-1 or E-2 are for nonimmigrants only. When the qualifying business/investment ends, you will have to leave the United States unless another visa is granted. L-1 is becoming more difficult to be approved due to fraud. As U.S. immigration laws change, these other visas may expire without the possibility of renewal.

What can disqualify me from being approved for an EB-5 Visa?

There are very few disqualifying or exclusionary events. Some criminal records may be disqualifying. Some major medical problems might also exclude an applicant, but for the most part this can be avoided if it can be proven that you will avoid being a recipient of government medical assistance. Applicants should seek advice of their legal counsel to determine what waivers may be available for eligibility.

What is a Designated Regional Center?

A “Regional Center” is an entity, organization or agency that has been approved by the USCIS. Regional Centers focus on a specific geographic area within the United States, seek to promote economic growth through creation of new jobs, and facilitate the pooling of capital of multiple EB-5 investors. Investors through Regional Centers can take credit for jobs created directly as well as indirectly from their investment.

Must I have previous business experience or education?

As an investor, you are not required to have any particular level of education or prior business experience.

Must I speak English?

No. (It’s helpful but not required.)

Must I be in good health?

Yes, you must submit to and pass a health medical examination before a conditional EB-5 Visa is granted.

Can money gifted by a parent or other relative be used for an EB-5 Investment?

Yes, provided that you can prove that the gift is an actual “arms-length transaction” and you don’t have to give it back after permanent residence status is granted.

If my petition is approved by the USCIS, what is the purpose of the Consulate application and interview?

Upon approval of your immigration petition, you must wait for notification from the U.S. Consulate in your home country to prepare documents for the Visa interview. At the interview, the consulate officer may address the issues and information printed on the application, including asking for a summary of the nature of your immigrant investment. If you and your family are in the United States, different rules apply.

What issues cause the greatest problems when applying for an EB-5 Visa?

The most common problem area has been insufficient documentation for the source of funds. It is better to provide too much information than too little. Your immigration attorney will most likely request more information than you think is necessary.

Who receives the permanent residency (“green card”)?

Husband, wife and any unmarried children under the age of 21. It is possible for adopted children to be included in the family. Upon approval you will receive the Conditional Resident Alien Card.

Is my investment guaranteed?

No. The law requires an “at risk” investment without guarantees or redemption rights.

What are my risks?

As in any at-risk investment, there is a risk of total loss. By U.S. regulations, all funds must be put at risk. All investors are provided with sound references to permit independent verification of the information contained in the investment prospectus.

Is there a residency requirement attached to the EB-5 Visa? What if I need to leave the country?

Upon receipt of the Visa, you have 180 days to enter the United States to establish residency. Proof of establishing residency is done through obtaining a driver’s license, social security number, opening a bank account, paying federal or state income taxes or renting/buying a home. Once residency is established, you may work overseas if it is required due to the nature of your business or profession, but to qualify as a permanent resident, you must remain in the U.S. for more than 180 days each year unless the USCIS is informed in advance of an extended absence, for which there are specific rules and work-arounds. Consult your immigration attorney for details if this is important to your specific situation.