EB-5 FAQ

Q: How Long Does The EB-5 Process Take?

A: Absent the impact of quota restrictions and unforeseen processing delays during the adjudication process, immigrating under the EB-5 provisions is typically a six-to-eight year process that includes the following steps:

Selecting a project in which to invest. Historically over 95 percent of EB-5 immigrants have invested in a project developed by or offered under the auspices of a U.S. Citizenship and Immigration Services (USCIS ) -designated regional center, with less than 5% of immigrant investors seeking to immigrate based on an investment in a direct or standalone project
Working with the immigration attorney to provide, develop and implement a strategy for documenting the lawful source of investment capital and tracing the path of these funds to the bank account of the project company. The level of complexity of this process varies considerably, depending on business and financial record-keeping practices, foreign banking regulations, and other factors specific to the investor and the investor’s country of origin.
Preparing and and filing an I-526E petition ( or I-526 for “direct” investors”) with USCIS. USCIS adjudication times vary considerably over time and can range from several months to over a year depending on a range of factors, including staffing levels, adjudication priorities, case complexity, and the completeness and sufficiency of the documentation submitted with the petition.
Remitting the qualifying amount of capital to bank account of the new commercial enterprise. The investor may be able to file their petition with USCIS when they are “actively in the process” of investing the required capital allowing for the completion of some portion of the investment after the filing of the petition.
Completing the process of applying for an immigrant visa through the U.S. Embassy or consulate in your home country when a visa is available to people with your “priority date” (date of filing of I-526/I-526E petition) and country of chargeability. Note that applicants in lawful nonimmigrant status in the United States may be eligible to apply to adjust status in the United States by filing a Form I-485, Application to Adjust Status. All others must attend a visa interview before a U.S. consular officer in their country of citizenship or residence.
Completing a two-year period of conditional residence. EB-5 immigrants are admitted to the U.S. as lawful permanent residents conditionally for a period of two years, during which time investors are required to establish and maintain their permanent residence in the United States.
Preparing, filing and awaiting adjudication of an I-829, Petition to Remove Conditions on Residence. To approve an I-829 petition, USCIS must determine that an investor has sustained their investment for at least two years (or throughout the period of conditional residence for pre-RIA investors) and that the EB-5 enterprise has created the required jobs for qualified U.S. workers

Q: What Is A Designated Regional Center?

A: : A regional center is an entity, organization, or agency that has been approved by USCIS to participate in the Immigrant Investor Program by demonstrating that its commercial activities will promote economic growth and create new employment in a specific geographic area within the United States. Multiple Regional Centers may operate within a particular geographic location. Regional Center projects are made available as securities offerings which involve the combination of investment capital from multiple EB-5 investors and other sources to fund multi-million-dollar commercial projects which will have a substantial economic impact focused within the area of the regional center.

An investor in a Regional Center project may use statistically valid forecasting methodologies to demonstrate that up to 90% of the required full-time positions will be created indirectly through revenues generated from increased sales, improved regional productivity, job creation, or increased domestic capital investment.

Q: What’s The Difference Between Investing in a “Direct” Or “Standalone” Project and a Regional Center Project?

A: The principal difference is that investors in “direct” projects may be credited only for direct job creation, that is, employees hired directly by, and on the payroll of the company in which the immigrant invests, or a wholly-owned subsidiary of that company. Investors in regional center projects, however, may count either direct or indirect jobs that can be shown by reasonable economic methodologies to have been created by the investment.

Another distinguishing factor is that a regional center must file a Form I-956F, Application for Approval of an Investment in a Commercial Enterprise, with USCIS to request preapproval of a particular investment project before any investors in a particular project sponsored by the regional center may file their Form I-526E petition based upon an investment in that project. Only following the approval of the regional center’s Form I-956F, can USCIS approve the I-526E petitions of investors in the subject project.

In addition, RIA 2022 eliminated the ability of multiple EB-5 investors to seek immigration benefits based on investment in a direct EB-5 project.

All other EB-5 requirements including minimum investment amounts, Targeted Employment Area options, at-risk requirements, and processing times are the same for both regional center and direct investments. https://www.usvisanet.com/eb-5-visa-overview/regional-centers-and-basic-program-standalone/.

Q: Why Is Investment in a Regional Center Project Preferred By Many EB-5 Investors Over Direct EB-5 Investments?

A: Investment in an projected sponsored by an EB-5 regional center is preferred by many investors over direct EB-5 investments for several key reasons:
Job Creation Advantages
Regional center investments offer more flexibility in meeting the job creation requirements:

They can count direct, indirect, and induced jobs towards the 10-job minimum.
Job creation is calculated using statistically reliable economic models rather than actual payroll, making it easier demonstrate meeting the requirements.
This allows for potentially easier satisfaction of the job creation criteria compared to direct investments.

Less Active Investment Opportunity

Regional center investments allow for a less active role for the investor.
Investors don’t need to be involved in day-to-day management of the business.
This is attractive for those who prefer not to actively manage a U.S. business or lack the necessary experience.

Professional Management

Regional centers provide access to experienced EB-5 professionals, corporate and business attorneys, economists and other industry experts.
They offer guidance throughout the investment process, ensuring compliance with EB-5 regulations.
Projects are typically managed by professionals with experience in raising and deploying EB-5 capital.

Flexibility in Residence

Regional center investors can live anywhere in the United States, not necessarily near the investment project.
This provides greater freedom in choosing where to reside after obtaining permanent residency.

These advantages have led to regional center investments accounting for over 95% of all EB-5 investments in recent years, making it the preferred choice for many EB-5 investors seeking a more streamlined and potentially more certain path to U.S. permanent residency.

Q: How Does RIA 2022’s Creation Of “Reserved” Visa Categories Impact The EB-5 Program?

A: The Reserved visa categories are set-aside visas that were introduced by RIA 2022. These categories, as listed below, are intended to promote
investment in areas that will most benefit from economic development and job creation.

Rural Set-Aside Visas receive 20% of the annual EB-5 visa allocation.

For projects in areas with populations less than 20,000
Not located within a metropolitan statistical area (MSA)
Investors receive priority processing by USCIS

High-Unemployment Set-Aside Visas receive 10% of the annual EB-5 visa allocation.

For projects in areas with unemployment rates at least 150% of the national average
Also known as Targeted Employment Areas (TEAs)

Infrastructure Set-Aside Visas receive 2% of the annual EB-5 visa allocation.

involve the development, maintenance, or improvement of a public works project

Key points about Reserved EB-5 visas

They constitute 32% of the total annual EB-5 visa allocation
Open to investors of all nationalities who filed I-526E petitions after March 15, 2022
Offer a lower investment threshold of $800,000 compared to $1,050,000 for unreserved visas
Provide a potential way for investors from high-demand countries like China and India to avoid backlogs

Q: How Much Must I Invest To Qualify Under The EB-5 Program?

A: The EB-5 immigrant investor program seeks to encourage investments in Target Employment Areas or “TEAs” which are either a.) rural areas; or b.) high unemployment areas, defined as areas with a rate of unemployment that is 150% the national average; and also in investments in Infrastructure Projects which involve the development, maintenance, or improvement of a public works project. Under RIA 2022 the minimum qualifying investment amount is $800,00 for an investment in a project in a TEA or an Infrastructure Project and $1,050,000 for investments in all other projects. Beginning in January 2027 and every five years thereafter, minimum investment amounts will be adjusted based upon the U.S. Consumer Price Index (CPI).

Q: What Are The Main Principles Of The “At Risk” Requirement Of The Eb-5 Program?

A: The core principle of the “at risk” requirement is that the investor’s capital must be subject to both potential gain and loss. This means:

There must be no guarantee of returns or repayment.
The full amount of the investment must be exposed to business risk.
Investors must acknowledge the possibility of significant financial loss.

Active Investment
The capital must be actively invested in a qualifying project:

Mere intent to invest or prospective arrangements are insufficient.
The full investment amount must be made available to the new commercial enterprise (NCE) receiving the investor’s capital prior to filing Form I-526E/I-526.
The NCE must deploy the capital toward a business that creates jobs and engages in commercial activity.

Business Activity
For an investment to be considered “at risk,” there must be evidence of actual business activity:

Simply establishing an NCE and signing a commercial lease are not sufficient.
The project must demonstrate ongoing business operations.
USCIS requires proof of actual business activity to verify the investment’s economic impact.

Duration of Risk
The investment must remain at risk for a specific period:

For petitions filed on or after March 15, 2022, the capital must be expected to remain invested for not less than 2 years.
Previously, investments had to remain at risk during the entire period of conditional residency.

Prohibited Arrangements
Certain financial arrangements are not permitted under the “at risk” requirement:

Debt arrangements between the investor and the NCE are excluded.
Contractual rights to repayment are not allowed.

Understanding these principles is crucial for EB-5 investors to ensure compliance with program requirements and increase their chances of obtaining permanent residency in the United States.

Q: How Can I Show That My Funds Come From A Lawful Source and Through Lawful Means?

A: RIA 2022 provides that a EB-5 investor shall demonstrate that the capital invested, or to be invested, and any funds used to pay administrative costs and fees associated with the investment were obtained from a lawful source and through lawful means. To meet this requirement the investor’s I-526E (or I-526) petition must be accompanied, as applicable, by:

Business and tax records including foreign business records
Corporate or partnership tax returns (or tax returns of any other entity in any form filed in any country or subdivision of such country), and personal tax returns, including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind, filed during the past 7 years with any taxing jurisdiction within or outside the United States by or on behalf of the investor;
Any other evidence identifying any other source(s) of capital or administrative fees;
Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States within the past 15 years;
Evidence related to monetary judgments against the investor, including certified copies of any judgments, and evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving possible monetary judgments against the alien investor from any court within or outside the United States;
The identity of all persons who transfer into the United States, on behalf of the investor, any funds that are used to meet the capital investment requirement.

In practice, documenting an EB-5 investor’s lawful source of funds requires an in-depth analysis of the specific source of funds contemplated to determine what kinds of documents will be needed. The assistance of an immigration attorney experienced in the preparation and filing of I-526E/I-526 petitions is critical at this stage of the petition as missteps in determining and documenting the lawful source of funds can result in unnecessary delays in adjudication and even petition denial.

Call our firm at 415-503-9653 for a consultation.

Q: What Are Some Of The Challenging Issues EB-5 Investors In Showing That Their Funds Come From A Lawful Source And Through Lawful Means?

Lack of Comprehensive Documentation

Many investors struggle to provide a complete paper trail, especially for transactions that occurred years ago.
Bank statements, tax records, and other financial documents from 20-30 years ago can be particularly difficult to obtain, especially in countries where digital record-keeping was not prevalent.

International Transfer Restrictions

Some countries, like China, Vietnam and India, have laws limiting international money transfers, making it challenging to move funds to the U.S. bank account of the EB-5 entity.

Non-Traditional Sources of Funds

Documenting unconventional contributions such as cash savings, non-monetary gifts, or other atypical sources can be challenging due to limited supporting evidence
Cultural norms in some countries may result in transactions without formal documentation, making it difficult to prove the lawful source

EB-5 investors should work with an experience immigration attorney who can address potential issues proactively and guide them in meeting the rigorous documentation requirements.

Q: Can Capital Received As A Gift Or Loan Be Used To Fund An EB-5 Investment?

A : Yes, the investor may use gifted or loaned funds subject to the following requirements. For gifted funds the investor must demonstrate they were gifted in good faith and provide detailed documentation of the source of the gifted funds. For loans, the investor must demonstrate the loan was lawfully obtained, and if the lender is other than a bank or financial institution, detailed documentation of the source of the loaned funds.

Q: What provisions Introduced In The EB-5 Reform and Integrity Act of 2022 (RIA) Particularly Benefit EB-5 investors:

Enhanced Oversight and Compliance

Audits and Site Visits
Regional centers are now subject to USCIS audits every five years and potential site visits. This increased scrutiny helps ensure that regional centers are operating in compliance with regulations and using investor funds appropriately.
Strict Record-Keeping Requirements
Regional centers must maintain detailed records and share relevant portions of annual statements with investors. This transparency allows investors to better monitor the progress and compliance of their investments.

Financial Safeguards

Separate Accounts and Fund Managers
Investor funds must be transferred to a separate account maintained by the regional center and can only be transferred to the project when certified by designated fund managers (e.g., public accountants, attorneys, broker-dealers). This provision helps protect investor capital from misuse.
Integrity Fund
Regional centers must pay annual fees into an EB-5 Integrity Fund, which is used for detecting fraud, conducting audits, and ensuring compliance. This fund strengthens USCIS’s ability to oversee the program and protect investors.

Operational Restrictions

Ownership and Management Limitations
Only U.S. citizens and permanent residents without criminal records can be involved with owning, managing, and operating regional centers. This requirement aims to prevent bad actors from controlling EB-5 projects.
Foreign Government Restrictions
Foreign governments are barred from any aspect of EB-5 except arm’s length ownership of job-creating entities. This provision helps maintain the program’s integrity and prevents undue foreign influence.

Investor Protections

Project Pre-Approval
Regional centers must seek pre-approval of their projects by filing a Form I-956F, Application for Approval of a Commercial Enterprise by before raising funds or allowing investors to file I-526E petitions. This requirement helps ensure that projects are viable and compliant before investors commit their capital.
Grandfathering Provision
If a regional center is terminated or debarred, or a project in which an investor has invested is debarred, investors who made investments in good faith will not lose their priority date if they associate with a new regional center or project and file a petition amendment within 180 days. This provision protects investors from regional center or project management misconduct beyond their control.

These integrity provisions collectively seek to create a more secure and transparent environment for EB-5 investors, reducing the risk of fraud and improving the overall reliability of the program.

Q: What Is the I-829 Petition Process?

A: Immigrants under the EB-5 program are initially admitted to the U.S. as lawful permanent residents on a conditional basis. The I-829 process is the final step for an EB-5 investor to become a lawful permanent resident without conditions in the United States. This process involves the filing of Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status. The primary purpose of this form is to demonstrate that the investor has fulfilled all requirements of the EB-5 program, including the investment and job creation requirements. Key aspects of the I-829 process include:

Filing
The investor must file Form I-829 within the 90-day period immediately before the second anniversary of the date when the investor was granted conditional permanent residence.

Evidence of Investment
The investor must provide evidence that the full required investment has been made and maintained throughout the “sustainment” period which must be no less than two years. This may include bank statements, invoices, receipts, contracts, business licenses, and tax returns.

Evidence of Sustainment of Investment
Under RIA 2022 the investor must demonstrate that the capital investment has been sustained for the longer of a minimum of 2 years, or satisfaction of the job creation requirements, whichever is longer. To satisfy the sustainment requirement, investors must submit various forms of evidence, such as bank statements, invoices, contracts, business licenses, tax returns, and quarterly tax statements.

Evidence of Job Creation
The investor must also demonstrate that the investment has led to the creation of at least ten full-time jobs for qualifying employees. For investors in direct EB-5 projects, this can be shown through payroll records, tax documents, and other relevant employment documents. For investors in regional center projects, supporting evidence will also include documentation of the payment of project expenditures to show indirect job creation.

Automatic Extension
Upon filing the I-829, the investor’s conditional permanent residency status is automatically extended, allowing them to continue living and working in the U.S. while the petition is being processed.

Q: What Happens If My I-829 Petition Is Denied?

A: An EB-5 immigrant whose I-829 petition is denied by USCIS may seek a readjudication of the petition before an immigration judge in removal proceedings. A decision by a judge to deny the I-829 petition and order the investor to be removed from the United States may be reviewed in federal court. Alternatively, an EB-5 immigrant whose I-829 has been denied may seek to make a new qualifying investment, file a new I-526E or I-526 petition (for direct investors) and become a conditional resident based upon approval of the new petition.

Q: What Is The Impact Of Quota Restrictions On EB-5 Immigrants From Oversubscribed Countries?

A: EB-5 applicants impacted by quota restrictions are able to file their I-526E (or I-526) petitions, and USCIS will adjudicate those petitions and assign a priority date to the petitioner. However, EB-5 applicants born in countries affected by the quota will need to wait for their priority date (I-526E/I-526 filing date) to become current under the Department of State Visa Bulletin before they will be able to obtain visas or adjust to conditional resident status.

Depending on adjudication times at USCIS, the impact of the quota may add a period of years to the EB-5 immigration process.

We Can Answer All Your Questions

Contact our offices by calling 415-503-9653 or with our online form to meet with one of our immigration experts. We can guide you through the entire process and answer any questions you may have.