In this article you will find up-to-date information for 2021 on the EB-5 visa. This visa is administered by USCIS. On November 21, 2019, changes applied by the Trump administration came into effect, which apply in the present 2021. These are reflected in the following article.
At Lluis law our immigration lawyers in Los Angeles keep up to date with changes on the different types of American visas. If you want information about your case, do not hesitate to contact our experts.
What is the EB-5 visa?
The Immigrant Investor Program (EB-5 visa) is administered by USCIS. It was created in 1990 with the goal of stimulating the American economy through job creation and capital investment by foreigners.
All EB-5 visa investors must invest in a newly established commercial company:
- After November 29, 1990, or
- On or before November 29, 1990, and that:
- Has been purchased and the business is reorganized or restructured in a way that results in a new commercial enterprise: or
- It has expanded through investment, obtaining a 40% increase in net worth or number of employees.
The term “commercial enterprise” refers to any activity with profit aims formed for the continuous realization of legal business, which includes:
- A single proprietorship;
- Partnership (either limited or general);
- Main holding company;
- Joint venture;
- Commercial trust; or
- Another commercial entity, whether private or public.
The term includes the commercial enterprise and wholly owned subsidiaries franchise companies as long as they carry out for-profit activities aimed at the continued conduct of lawful business.
It also excludes non-commercial activities.
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Requirements for job creation with the EB-5 visa
The EB-5 visa investor must invest the required amount in a commercial enterprise. This company will create full-time jobs for at least 10 qualified employees.
- If the new company is not located in a regional center, it must create full-time jobs directly to be accounted for. That is, the new business enterprise (or its wholly owned subsidiaries) must be the employer of the skilled workers.
- In the case of a new commercial company that is located in a regional center, it can directly or indirectly create full-time jobs.
- “Direct employment” means one where the employer-employee relationship between the new business enterprise and the people it employs is demonstrated.
- “Indirect employment” is understood as employment that is outside the new commercial enterprise but that was created as a result of the new commercial company.
- For troubled business, the EB-5 visa investor may depend on job maintenance.
- The investor will demonstrate that the number of existing employees will be maintaned at no less than the pre-investment level for two years.
Defining terms for job creation
Troubled business :
- This is a company that has been in existence for at least two years with net losses in the 12-24 month period prior to the priority date on Form I-526.
- Losses from this period must be at least 20% of the net value of the company before the loss.
- To determine if the business has existed for 2 years, USCIS will consider successors with interest to determine if they existed for the same period of time as the successful business.
In our blog you can find out what does the priority date mean for immigration and read everything related to the subject.
Qualified employee: This is a United States citizen who is a lawful permanent resident or other immigrant authorized to work in the United States. This includes a conditional resident, refugee or person living in the USA on suspension of deportation.
This does not include immigrant investors; their spouses, sons or daughters; or any alien in any nonimmigrant state (such as an H-1B visa beneficiary ) or who is not authorized to work in the U.S.
Full-time employment: This means a minimum of 35 hours per week for the qualified worker of the new commercial enterprise. The same applied for an employee of the Regional Center Pilot Program in an indirectly created position.
Shared employment agreement: This is where two or more qualified employees share a position and fulfill the required weekly hours. This definition does not include combinations of part-time positions, even if combined fulfill the hours per week.
Note: Temporary, intermittent, temporary or seasonal jobs do not qualify as full-time jobs. However, jobs that are expected to last less than 2 years are not normally considered to be of that nature.
Capital investment requirements
Capital means cash, inventory, equipment or other tangible property equivalent in cash and debt guaranteed by assets owned by the foreign entrepreneur. As long as he is personally and principally responsible for the assets of the new commercial company. Also provided that the assets are not used to fix any indebtedness.
All capital will be calculated at its fair market value in US dollars. Assets acquired, directly or indirectly, by illegal means (such as criminal activities) will not be considered capital for the purposes of section 203(b)(5) of the Act..
Note: Immigrant investors must demonstrate legal ownership of the invested capital. This may include your promissory note under certain circumstances.
The following table shows the minimum investments required as of November 21, 2019:
|Petition Filing Date||Minimum investment amount required – 8 CFR 204.6 (f) (1).||Investment amount in desired employment area – 8 CFR 204.6 (f) (2)||Investment amount in high employment area – 8 CFR 204.6 (f) (3)|
|Before November 21, 2019||$ 1,000,000||$ 500,000||$ 1,000,000|
|November 21. 2019 or later||$ 1,800,000||$ 900,000||$ 1,800,000|
How to apply for the EB-5 visa
To find out how to obtain the EB-5 visa please read this procedure.
- File Form I-526.
- After being approved you can:
- Submit Form DS-260 to obtain an EB-5 visa abroad for admission to the United States, or
- File Form I-485 with USCIS for adjustment of status to that of conditional permanent resident in the US. When USCIS approves the form, it will grant conditional permanent residence to the EB-5 investor and their derivative relatives, allowing them to remain for 2 years.
- File Form I-829, Investor’s Petition to Eliminate Permanent Residence Conditions, within the 90-day period immediately preceding the second anniversary of your admission to the United States as a conditional permanent resident.
If USCIS approves this petition, it will remove the conditions of your legal permanent resident status and any derived family members you have included.
Form I-526 for the immigrant petition by the foreign investor
|Requirements||Evidence – Supporting Documentation|
|New commercial enterprise||Present evidence that you have invested and are actively in the process of investing in a new for-profit business venture. In addition this company must have been established: |
– After November 29, 1990, or
– On or before November 29, 1990, and:
– Has been purchased and the existing business reorganized or restructured resulting in a new commercial company or;
– Expanded through investors of Thus, there was an increase of at least 40% in your net worth or in the number of employees.
If applicable, you must present evidence that an individual or entity established the new business and, if you are seeking eligibility under the reduced investment amount, must also present evidence of the target employment area (TEA).
|Management of the new commercial enterprise||Evidence must be provided that you are in charge or will be and actively involved in running the business. Either through daily administrative control or the formation of business policies.|
|Investment||Evidence must be presented that the beneficiary of the EB-5 visa has invested or is in the active process of investing the required amount of capital, and will also present evidence that the capital was obtained by legal means accompanying the petition (as applicable) of the following: |
– Registration records of the foreign company;
– Tax returns of associations, corporations or other entities during the past 5 years. Taxes both within and outside the United States on behalf of the investor.
– Evidence to identify any other source of capital or;
– Certified copies of any court ruling or evidence of all pending criminal or civil actions, government administrative procedures.In addition to any private civil action (pending or not) that involves monetary judgments against by any court inside or outside the United States. for the past 15 years.
|Employment creation||Evidence must be presented that the new business enterprise will create at least 10 full-time jobs for qualified employees. If the entity responsible for creating them has not documented the necessary employees, it must present a detailed business plan. Said plan must demonstrate that by size and nature, at least 10 qualified employees are required.|
|The investor will demonstrate that the number of existing employees has been or will remain at not less than the pre-investment level for two years. You must also submit photocopies of tax return records, the I-9 form or other relevant documents along with a comprehensive business plan to support the application.|
Form I-829 for investor petition to remove conditions on permanent residence
The EB-5 visa investor must submit this form within the 90-day period preceding the day 2 years after their admission to the USA as a conditional permanent resident.
|Requirements||Evidence – Supporting Documentation|
|Investment||Demonstrable evidence must be presented that you have invested or are actively investing in a new business venture. This may include but is not limited to copies of organization documents and tax returns. |
Evidence must also be provided that the total amount required has been or will be invested. This may include but is not limited to audited financial statements among others.
Evidence must also be presented of having maintained the investment in the new commercial company during these 2 years of conditional permanent residence. This evidence may include:
– Bank statements;
– Company receipts and invoices;
– Company licenses;
– Federal or state tax return returns; and
– Quarterly federal or state income tax returns.
|Job creation||Evidence must be demonstrated that 10 full-time jobs for qualified workers will be created or will be created in a reasonable time. Evidence could include but is not limited to: Company payrolls and their respective records; Relevant tax documents and; Forms I-9 for employees.|
|You must present the same evidence as for the job creation mentioned above. However, the evidence must show that the commercial company maintained the number of existing employees without being less than the previous level of investment. All during the period after the investor’s admission as a conditional permanent resident.|
Frequently asked questions about EB-5 visa
What minimum amount do I need to invest and obtain the Green Card?
You will need $ 900,000 of capital plus $ 50,000 for the administrative expenses of the Regional Center. This is the private agency that USCIS designates to report on the jobs created during your investment project.
With the EB-5 visa I am first a conditional resident and then a permanent one in the USA?
Yes. First, you obtain conditional permanent residence status conditioned to generate 10 jobs in the next 2 years. Then you can contact our lawyers to request the cancellation of your conditional residence to become a permanent resident.
Who receives permanent residence with the EB-5 investment?
Firstly the investor and his wife and unmarried children under 21 who are not married. This includes adopted children.
How long will it take to process the residency for my family and me?
The average time is 24 to 29 months until it is approved.
Can the money come from an inheritance or family gift?
Yes, the important thing is to be able to prove it with legal documentation.
Where should I stay while Form I-526 is approved?
You can stay in your country or in the United States as long as you have a valid visa and do not exceed the time allowed by law to stay within the USA.
What is the difference between permanent and conditional residents?
Conditional residence is temporary and valid for 2 years. 90 days before reaching these 2 years, you must file the I-829 petition to cancel the conditions and become a permanent resident. This is dependent on the number of jobs created that must be 10 in those 2 years.
Conditional residency also allows you to travel freely outside of the U.S. In fact it has the same restrictions as a permanent one. In other words, you cannot stay out for a period equal to or greater than 1 year.
In our article “How to get a Green Card” you have a complete guide to become permanent resident in the USA.
If I invest in California with the EB-5 visa can I live in another state?
Yes, with permanent or conditional residence you can live in any American state.
Isn’t it more convenient for me to obtain an investor visa to run my own business?
Surely the E1 and E2 visas seem an option to consider but take into account the following.
If the goal is to obtain the Green Card without having to manage a business and its implicit risks, it is not the best option. It is generally safer and cheaper to use the EB-5 visa investment program.
When you obtain the Green Card, you will not need to renew or reapply to maintain your status in the USA. In contrast, with another non-immigrant visa, your stay in the US will be directly related and dependent on the success of your business.
Here we have answered many frequent questions but you may have many more. Do not hesitate to contact a good EB-5 visa attorney to find answer to your questions.
In the Californian law firm of Lluis Law we have been helping immigrants in all kinds of immigration procedures for more than 40 years. We are at your disposal to answer any questions.