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EB-5 Investment Visa through Direct Investment

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Dec 07, 2018)

What is an EB-5 visa?

EB-5 is an immigrant visa, reserved for those who make an investment in the United States and create jobs. EB-5 refers to the fifth class of employment-based (EB) immigrant visas.

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What are the basic requirements for EB-5 Direct Investment visa?

There are two basic requirements:

  1. Amount of Investment. To obtain an EB-5 visa, the non-citizen investor must invest $1 million ($1.8 million starting November 21, 2019) or greater in a business, unless the business is located in a Targeted Employment Area (TEA), in which case the investment may be as little as $500,000 ($900,000 starting November 21, 2019).
  2. Number of Jobs Created. The investment must create at least 10 jobs.  See Job Classifications for EB-5 Investment.

How much would I have to invest?

The amount of required investment funds depends on the location of the business.  If the business is located in a Targeted Employment Area (TEA), then $500,000 ($900,000 starting November 21, 2019) of investment would be sufficient. Otherwise, the required investment area would be $1,000,000 ($1,800,000 starting November 21, 2019).

What is a Targeted Employment Area (TEA)?

Targeted Employment Areas (TEA’s) are areas targeted for potential economic development through investment. TEA’s are either rural areas or depressed urban areas.  TEA designation is accorded to rural areas (i.e., areas with populations under 20,000 people outside of a Standard Metropolitan Statistical Area (SMSA) or areas of high unemployment (i.e. areas with unemployment rates of 150% or more of the national rate).  TEA’s are not always far away places. Sometimes, they may be located in the heart of a well known metropolitan area.

There are no published listings of TEA's.  An area, which may have been considered depressed previously, may no longer be considered depressed by the time you file your application. To prove that your business would be located in a TEA area, you and your attorney must review statistical reports, consult economic experts (if needed), and confer with state government officials and secure their TEA certification of the area where you plan to locate your business.

What is the process for obtaining an EB-5 visa through direct investment?

The first step in seeking EB-5 immigrant visa through direct investment is to decide the on the business you want to start, prepare a business plan and organize the business.  Thereafter, you may file, with the USCIS an Immigrant Petition by Alien Entrepreneur (USCIS Form I-526), together with extensive documentation regarding the business that you wish to start, documentation of the funds and materials that you plan to invest and the sources of your funds.  The evidentiary materials that need to be submitted to the USCIS are quite complicated.

To see the current USCIS fee for your petition, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate your petition, see USCIS Processing Times.

Premium processing is not available for Immigrant Petitions by Alien Entrepreneur.  In exceptional cases, petitioners may request Expedited Processing of Immigrant Petition by Alien Entrepreneur.

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What happens after my "Immigrant Petition by Alien Entrepreneur" is approved?

If you are in the United States and qualify, you may apply for adjustment of status.  If you are outside of the United States or do not qualify to file for adjustment of status, you must go through consular processing, to actually receive an immigrant visa.

Eventually, you will receive a conditional permanent resident card, which would be good for two years.  In approximately two (2) years, you must file a second petition to remove the condition on your permanent residence and receive an unrestricted permanent residence. See Removing Condition on Permanent Residence Based on Investment.

When would I be eligible for U.S. citizenship?

You become eligible to apply for citizenship five (5) years after you first become a conditional permanent resident under the EB-5 program. This assumes that you have applied for, and the USCIS has removed, the condition on your permanent residence (as described above) and that you meet all other requirements for citizenship.  See Applying for Naturalization (Citizenship).

How do I select the business in which I would like to invest?

The immigration laws require that your funds to be invested and be at risk.  So, before you invest $500,000 or $1,000,000 in a new business and place your funds at risk, you must conduct a “due diligence” research (i.e., carefully research and investigate the success potential of the business venture you wish to pursue).

It is your responsibility to carefully examine and research various business opportunities, secure business information and marketing and sales research data, consult business and financial advisors, and make an informed decision before placing your funds at risk.  Note that attorneys are neither qualified nor allowed to provide financial advice.  Your attorney’s duty is to represent you in light of your direction.

If you are not already in the United States, you may obtain a visitor visa and actually come to the United States to investigate the marketplace and research the potential business ventures that you are considering.

What would be my total cost in securing an EB-5 visa through direct investment?

Aside from the legally-mandated funds ($500,000 or $1,000,000), the USCIS and State Department fees will be approximately $4,000. Attorney’s fees vary by circumstances.

For how long am I required to maintain my investment?

The short answer is that you must maintain your investment and sustain the required jobs until your Petition by Entrepreneur to Remove Conditions on Permanent Resident Status is approved and you receive your unconditional green card.

Theoretically, maintaining your investment and sustaining the required number of jobs for two years should be enough. Federal regulations specifically provide that a noncitizen investor “will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence.”  8 C.F.R. § 216.6(a)(4)(iii). In practice, the USCIS, by policy, requires investors to maintain their investment and sustain the required number of jobs until their petitions to remove condition on permanent residence are approved.

Related Topics:

EB-5 Regional Center Investment

Comparison of Direct v. Regional Center EB-5 Investment

 

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