What is an EB5 Visa?
EB5 Visa refers to an Employment-based visa in the 5th category. The EB5 Visa is an immigrant visa which allows foreign investors to reside permanently in the U.S.. Eb5 investors are required to invest at least $800,000 in a New Commercial Enterprise (“NCE”).
If the NCE is located either in: (a) a Targeted Employment Area (TEA); or (b) an area of high unemployment the required investment is USD 800,000. If the NCE is located outside of these area then the required investment is USD1,050,000. The investment must employ at least 10 full-time U.S. workers or remain in a pool investment project which will directly result in job creation for U.S. workers.
What are the two types of EB5 Visa?
There are two types of EB5: (a) EB5 through a Regional Center; and (b) Direct EB5 where the investment is not made through a Regional Center.
Regional Centers are private companies licensed by the US government to operate a Regional Center. Regional Centers find projects suitable for EB5 investment purposes and then Despite positive changes in 2023 Regional Centers remain largely unregulated and are not subject to frequent government oversight and review.
Who are the EB5 Professionals that can assist you?
Various professionals are available to assist you with your EB5 journey:
EB5 Lawyer
For most clients the EB5 lawyer is the single most important advisor. An Eb5 lawyer will guide you through the entire process and help make sure you have the right team of advisors on-board.
Lending/Finance Lawyer
A lending/finance lawyer will be able to review and EB5 project to ensure that the project is properly structured to protect your legal rights as an investor. Where losses in EB5 have occurred, it is usually because the project was not properly structures to protect your rights as an investor.
Independent Investment Advisor
A properly licensed and experienced independent financial advisor will be able to help you review your project from a financial perspective.
Be aware that make brokers in the EB5 industry have little training in the financial analysis needed to properly review a project. Most Eb5 brokers have the minimal licensure required to sell securities but no training in financial analysis. Ask for:
A CFA or RFA
Two or more years of training in a major bank or financial institution
ASK WETHER THE FINANCIAL INTERMEDIARY WILL BE PAID ANYTHING BY YOUR PROJECT. Truly independent advisors will not accept payments form a Regional Center or project.
How can and EB5 Visa Lawyer Help?
An EB5 Visa lawyer is an immigration lawyer who specializes in EB5 law and has a thorough knowledge of the EB5 program. A number of EB5 lawyers have extensive experience with the entire EB5 process and will be able to guide you through each step.
EB5 immigration attorneys assist you with the entire EB5 process including:
advising you as to the entire EB5 process and identifying other professionals.
documenting your source of funds;
devising a plan for the lawful transfer of your funds;
assisting you with immigration due diligence on a related immigration project;
filing your application using for I526
obtaining your Immigrant Visa and Conditional Permanent Residency in the United States (a “Green Card”)
assisting you with a consular interview when needed
filing form I829 to convert your Conditional Green Card into a full/permanent “Green Card”
for those who wish to obtain US Citizenship.
Some EB5 law firm may also be able to assist you with the following steps:
preforming due diligence on your EB5 investment as to issues of law which impact the safety of your money
providing you advice from a tax lawyer
assisting you with the return of your capital
Once you have chosen a New Commercial Enterprise (NCE) as the subject of your investment, the immigration attorney will help you, the foreign investor, to gain permanent residence along with your dependent family members.
Why do you need a competent EB-5 Visa Lawyer?
Foreign nationals who decide to relocate their family to the United States have made a significant decision involving the investment of a significant amount of money. EB5 continues to see frequent rule changes and as a common law country EB5 is subject to the interpretations of the courts. Meeting all the requirements of an EB5 Visa as laid by the United States Citizenship and Immigration Services increases your chance of getting the visa and achieving a permanent residency status.
Moreover, obtaining an EB5 Visa can be rigorous, long and complex and any mistake during your application can cost you not only money and time but also the risk of rejection. With the help of an experienced immigration lawyer, they can guide you throughout the visa application process and increase your chances of getting approved. Further, these lawyers are familiar with NCE developers and can help you locate a reliable regional center sponsor.
Choosing an EB5 Lawyer (“CORER”) and Questions to Ask
There are a lot of immigration lawyers who provide their services to foreign nationals who want to move to the U.S. However, with the complexity of the EB-5 Visa process, you must engage the services of a lawyer who has the experience and a success record.
Since you’ll be trusting your immigration lawyer concerning your visa application, you should be careful in screening the lawyer you are going to work with.
Here are some questions you can ask the immigration lawyer so you can assess their services:
Competency
What Awards do you Have? Leading Eb5 lawyers are recognized by industry vote in the annual “top 25” EB5 lawyer survey.
Have you ever been subject to any professional disciplinary proceeding or charge of any kind? In the United States the record of every lawyer is available from the applicable State Bar. While the Avvo grading system may leave some room for improvement Avvo do check that lawyers are properly licensed, and their on-line record is clear.
Where did you go to law school?
How many years have you been practicing EB5?
Describe your experience with complex structured real estate investments. EB5 is a complex structured real estate investment. Your lawyer should not only be familiar with EB5 but also with how real estate deal are structured and how to make sure your legal rights are properly protected.
Will you personally be handling all aspects of my case? Make sure that the lawyer you are speaking Who Cato will be handling or case and if not that you are comfortable with the person who will be handling your case.
Operations
How quickly will you respond to my questions
Can I speak to you by phone as frequently as I wish to with no extra charges?
Will you monitor my project and take action as needed to preserve my capital?
Will you monitor my project and take actions necessary to preserve my immigration benefits?
What do you charge for responding to a substantive RFE caused by USCIS error?
Results
At the time of writing our firm has no denied EB5 cases. We receive an RFE rate of about 3% all of which have been “cleared” by USCIS.
Experience
Ask the lawyer to complete this form:
Number of I526 Petitions
Number of I829 Petitions
Number of RFEs
Number of NOIDs
Number of Denials
Number of cases form my country
References
Do you have any references from previous clients? A competent immigration lawyer will have a list of previous clients who have worked with them and has provided testimonials on their capabilities.
Ask the lawyer to refer you to a couple of clients who are willing to talk to you about their experience. Ask for clients who have completed the entire EB5 process and have had their I829 applications approved.
Benefits of an EB-5 Visa
Foreign nationals under the EB5 Visa don’t need to complete a labor certification process that employment-based immigrant visas require. Unlike an L-1 visa EB5 has no requirement to maintain a business in your home country nor does it depend on verifying extraordinary ability in the business.
The EB Visa also allows you to bring your dependent family members such as your spouse and unmarried children under the age of 21 to the U.S.
Compared to other visas, the EB5 Visa has no visa limits based on your home country. This makes it appealing over diversity visas. It also doesn’t require you to have family members who are already present in the U.S.
The most beneficial aspect of an EB5 Visa, however, is that it offers a direct pathway to U.S. citizenship for you and your dependents. Other visas will force you to apply for other visas to gain citizenship, but an EB5 Visa, already includes the intent of permanently living in the U.S.
How to qualify for an EB-5 Visa?
Requirements
To obtain an EB5 Visa, there are certain EB5 Visa requirements that you must satisfy. First, you must show that you have invested or are actively in the process of investing in a New Commercial Enterprise.
Second, you must make a minimum investment of $800,000 in a TEA or $1,050,000 in non-TEA. This is included in some of the EB-5 Visa cost that you’d need to pay throughout your application. You may also invest in regional centers, which have less strict job creation requirements.
Third, the capital invested must create at least 10 full-time jobs for qualified U.S. workers.
EB5 Visa Application
The first step in an EB5 Foreign Investor Visa process is to file an Immigrant Petition as an Alien Entrepreneur. This must include supporting documents about the specifics of the investment, the management of the business, and proof that the money has been invested and that the invested business created jobs. These are not exclusive, and your immigration lawyer can help you determine which documents to include in your petition based on your circumstances.
Upon the approval of your petition, you may apply to obtain status as a conditional resident together with your dependents for 2 years. After that, you can apply to have the conditions removed.
EB-5 Visa Processing Times
According to the USCIS, the processing time for Form I-526 petitions ranges between 55-85 months, depending on your home country. Please take note that the USCIS processes first petitions from investors for whom a visa is available or soon to be available.
Meanwhile, in the new visa bulletin from the USCIS, all countries except China and India are tagged as “Current”, which means no backlog or retrogression.
Why are EB-5 Immigrant Investor Program Rules changing?
In March 2022, the Congress has passed the new EB-5 Reform and Integrity Act of 2022 (2022 Act). The law reauthorized the Regional Center Program and implemented changes and requirements for foreign investors and regional centers.
Minimum Investment Requirements
Before the new law, the 2019 law increased the minimum investment amount from 1990. The 2022 Act changed the minimum investments to $800,000 in a TEA and $1,050,000 in non-TEA.
Targeted Employment Area
The new law provides that only the USCIS may designate high-unemployment TEAs, which include the census tract or contiguous census tracts in which the NCE is primarily doing business. The weighted average of the unemployment rate for the census tracts must be at least 150% of the national average.
Moreover, the 2022 Act has specified that the USCIS shall prioritise the process and adjudication of EB5 petitions for regional center investments in rural areas.
Regional Center Program
The new law also authorizes the Regional Center Program until September 30, 2027. Because of this, the USCIS has resumed processing applications based on regional centres. However, the applications are subject to the law which is in place at the time of its filing (e.g. minimum investment requirements).
Oversight Measures
The 2022 Act has included oversight measures, particularly for regional centers, which address concerns of fraud and abuse in the program. It established the EB-5 Integrity Fund which is funded by regional centers through annual fees. The USCIS will use this fund for investigations related to the program such as determining compliance and conducting regional center audits.