EB-5 Visa Complete Guide

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EB-5 Visa Overview

The Employment-Based Immigration: Fifth Preference (EB-5) Immigrant Investor Program allows foreign investors (and their spouses and unmarried children under 21) to obtain lawful permanent residence if they meet the program requirements; namely, investing in a commercial enterprise in the United States, and planning to create or preserve 10 permanent full-time jobs for qualified U.S. workers. 

A key requirement under this program is meeting the minimum investment requirement. The minimum investment requirement varies depending on the investment location. For petitions filed on or after March 15, 2022, the minimum investment requirement is $800,000 if it is in a rural area or an area with a higher unemployment rate (also known as a targeted employment area or TEA). For investments made anywhere else, the minimum investment requirement is $1,050,000. The minimum investment requirement must be met whether you pursue the direct investment route or invest through the Regional Center Program.  

The EB-5 program was recently updated with the passage of the EB-5 Reform and Integrity Act of 2022 (RIA). The RIA modified the required investment timeframe for EB-5 investors and added provisions to the Immigration and Nationality Act (INA) allowing good faith investors to remain eligible if their regional center is terminated. 

The RIA also allows for concurrent visa filing, enabling investors to apply for an adjustment of U.S. resident status (I-485), a travel authorization or advance parole travel document (I-131), and application for employment authorization (I-765), while also filing a petition for the EB-5 program (I-526E). Using concurrent filing, investors can get an employment authorization document (EAD) and travel permit in as fast as 60 days. Upon receiving their work permits, EB-5 investors will possess the right to live and work anywhere in the U.S. with zero need for employer sponsorship while they are waiting for the approval of their petition to adjust status (which they will have already filed). In other words, they can freely travel to and from the U.S., enroll in school, start a business, or work wherever they want in the U.S. The EB-5 process is one of the fastest methods for obtaining these benefits.

Advantages of the EB-5 Visa

Pursuing an EB-5 visa offers numerous advantages relative to other potential green card options. Benefits of pursuing your green card through the EB-5 program include: 

• Permanent residency: Obtain a green card for yourself, spouse, and unmarried children under 21 
• Path to citizenship: Eligible for U.S. citizenship after 5 years of residency  
• Work authorization: Spouses and children can work in the U.S. 
• Education: Access to U.S. education system 
• Travel flexibility: Travel freely in and out of the U.S. 
• Tax benefits: Potential tax advantages, including reduced tax rates, no tax on foreign assets, estate tax exemptions, and tax credits 
• Concurrent filing: Investors can concurrently file I-526, I-485, I-131, and Form I-765 
• “Current” visa status: EB-5 is one of few visa categories that currently has green cards available, meaning there is no visa backlog in this category, application processing is faster, and visas are available for immediate issuance.  

Most importantly, the EB-5 visa provides a direct pathway to U.S. citizenship and permanent residency, a benefit unmatched by temporary worker visas and E-2 Treaty Investor visas. The pathway to citizenship via the EB-5 visa program is well-documented and fully within the scope of the program. 

EB-5 Investment Options: Direct Investment vs. Regional Centers 

The EB-5 Immigrant Investor Program offers two primary investment routes: Direct Investment and Regional Centers. The Direct Investment route involves investing directly in a U.S. business, creating jobs, and meeting specific requirements, while the Regional Center investment route involves investing in a USCIS-approved Regional Center, which pools funds from multiple investors to finance projects. 

Understanding the pros and cons of each option is crucial for making an informed decision on how you would like to pursue your EB-5 visa. 

Pros of the direct investment route include: 

• Control: You generally have more direct control over business operations 
• Flexibility: You usually have more flexibility for choosing the investment type and location 
• Potential returns: Sometimes you have the opportunity for higher potential returns on investment 
• Transparency: You maintain a clear understanding of all financial transactions, as you are personally responsible for all transactions 

In addition, if you invest in a TEA, which is a rural area or area that has experienced high unemployment (at least 150% of the national average unemployment rate), the minimum investment amounts are lower. 

Cons to pursuing the direct investment route include: 

• Complexity: This route requires hands-on management 
• Job creation: As a direct investor, you are personally responsible for creating 10 jobs. To demonstrate job creation, direct investors are reliant on evidence in the form of W-2s, 1099s, timesheets and other payroll records 
• Risk: Your direct investment might lead to higher risk 
• Documentation: You are required to generate, maintain, and provide the necessary documentation to demonstrate compliance with deployment and job creation requirements at later stages of the process  
• Pooled direct investments no longer allowed: Only one investor is allowed per business 

Similarly, there are pros and cons of the regional center investment route.  

Pros of the regional center investment route include: 

• Convenience: Investing in a regional center allows for more hands-off investment management 
• Job creation: The regional centers handle the job creation, and there are more avenues available for regional centers to demonstrate the requisite number of jobs are created. For example, regional centers can use Input-Output models, providing more opportunities (and leeway) for capturing job creation 
• Diversified portfolio: Your investments are spread across various projects 
• Expertise: You benefit from the regional center’s industry knowledge 
• Streamlined process: The documentation process is simplified 

Cons of the regional center investment route include: 

• Fees: Additional administrative and management fees apply 
• Limited control: You have less control over investment decisions 
• Risk: The success of your investment depends on the regional center’s performance 
• Returns: Your potential returns may be lower due to administrative, management, and marketing fees, the diversified portfolio, shared profits, and higher operational costs 
• Increased scrutiny: Regional centers are subject to USCIS scrutiny, including recordkeeping requirements, site visits, audits, annual statements, and filing requirements, with the aim of protecting EB-5 investors 

We are here to help you choose the right option, based on your investment goals, risk tolerance, and management preferences. Our team offers comprehensive guidance on the EB-5 visa process, helping you navigate complexities and avoid potential legal pitfalls. 

EB-5 Visa Requirements: Eligibility Criteria Explained 

Applicants for the EB-5 visa must meet specific requirements, which include the following investment requirements: 

• Minimum investment requirement: $1,050,000 (standard) or $800,000 in a TEA 
• Investing in a new commercial, for-profit enterprise 
• Investing capital in the form of cash, assets, or indebtedness (secured by assets) 

Applicants must also meet job creation requirements, including: 

• Creating or preserving 10 permanent, full-time jobs for qualified U.S. workers 
• The job types can be direct employees, indirect employees, or induced employees 
• The jobs must last at least 2 years 

Alongside these investment and job creation requirements, to be eligible for the EB-5 visa, applicants must be of good moral character, having no felony or misdemeanor convictions, pass a thorough background check, be able to maintain health insurance for dependents, and comply with U.S. tax laws. 

There are also certain documentation requirements for those applying for the EB-5 visa: 

• Form I-526: Immigrant Petition by Standalone Investor  
• Business plan: Applicants must provide a comprehensive business plan 
• Financial statements and tax returns: Applicants must provide their personal and business financial statements and tax returns 
• Proof of investment: Applicants must provide evidence of their investment 

Consult an immigration attorney at Colombo & Hurd to ensure compliance with EB-5 program requirements and regulations. 

EB-5 Visa Categories

EB-5 visa requirements and qualifications also vary depending on the visa class: Unreserved, Rural Set Aside, High Unemployment Set Aside, and Infrastructure Set Aside. The set aside visas are also called reserved visas. These categories were established when the RIA was enacted on March 15, 2022.  

The Unreserved category comprises all EB-5 visas not specifically reserved in the Rural, High Unemployment, and Infrastructure Set Aside categories. This category does not have a specific quota, and therefore the visa availability is greater under this category. Qualification for this category is automatic if the petitioner’s I-526 petition was filed before March 15, 2022. Applicants are also eligible for this category if their investments do not meet the criteria for the visa set aside categories. The required investment amount under this category is $1,050,000. 

The Set Aside categories are exclusively available to applicants who filed I-526 or I-526E (Immigrant Petition by Regional Center Investor) petitions on or after the RIA was enacted on March 15, 2022. The EB-5 visa program allocates set-asides for Rural projects (20% of the annual EB-5 visas), High Unemployment projects (10%), and Infrastructure projects (2%), each requiring a minimum investment of $800,000.  

An EB-5 visa is considered Rural if the investment project is in an area with a population less than 20,000 and not within a Metropolitan Statistical Area (MSA) or adjacent to an MSA. An investment qualifies as a High Unemployment project if it is in an area where the unemployment rate is at least 150% of the national average unemployment rate. EB-5 Infrastructure projects involve government-administered capital investments in public works, funded through regional centers or new commercial enterprises. 

Unused set-aside visas are carried over within their respective categories for the next fiscal year. Any remaining unused visas in these categories after the second fiscal year are then allocated to the unreserved categories in the third fiscal year. 

The EB-5 Application Process: Step-by-Step Guide

The EB-5 visa application process is a complex and technical process, wherein certain events must be timed to correspond with certain legal filings. In general, the process is as follows:

Step 1: Pre-Filing Preparation 

• Choose your investment route (either direct or via regional center) 
• Select your investment project; your attorney cannot select the project for you 
• Conduct due diligence 
• Consult an immigration attorney for guidance on the process and to proceed with legal filing

Step 2: File Form I-526 (Immigrant Petition by Standalone Investor) or I-526E (Immigrant Petition by Regional Center Investor) 

• Submit business plan, financial statements, and tax returns 
• Pay USCIS filing fee ($11,160 for I-526, $11,160 + additional fee of $1,000 for I-526E, as required by the RIA) 

Step 3: USCIS Review. The USCIS will: 

• Verify eligibility 
• Review business plan and investment 
• Conduct a background check 

Step 4: Conditional Residency. Upon passing USCIS review: 

• You will receive a 2-year conditional green card 
• You can now enter and legally live in the United States 

Step 5: File Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) 

• Submit evidence of job creation and investment 
• Pay filing fee ($9,525) 

Step 6: USCIS Review and Approval. USCIS will now: 

• Verify job creation and investment 
• Approve petition 

Step 7: Permanent Residency. Upon USCIS approval, you will: 

• Receive unconditional green card 
• Obtain permanent residency 

EB-5 Timeline: What to Expect and Processing Times 

Processing times for EB-5 application and approval vary greatly. One example of an overall timeline for the EB-5 process, from filing I-526 to obtaining permanent residency, is as follows: 

• Pre-filing: 2-6 months 
• Form I-526: 12-24 months for preparation, filing, processing, and USCIS review  
• Conditional residency: 2 years 
• Form I-829: 12-24 months for preparation, filing, processing, and USCIS review 
• Permanent residency: After USCIS approves Form I-829, a typical timeline may be: 
• Approval notification: 2-4 weeks after approval 
• Receive permanent resident card (green card): 6-8 weeks after approval 
• Receipt of physical green card: 8-12 weeks after approval 

Factors influencing the processing time include USCIS workload, the complexity of the application, background check delays, receiving an RFE (Request for Evidence), and interview scheduling. The timeline can also be affected by the type of investment you are pursuing, the regional center involvement, and various individual circumstances.  

Solutions for addressing these delays include paying an additional fee for expedited or premium processing, working closely with your immigration attorney, ensuring accurate documentation, and regularly checking USCIS status.  

EB-5 Program Updates: Latest News and Policy Changes 

We are committed to keeping our clients informed of the latest updates to EB-5 visa policy. These updates include the EB-5 Reform and Integrity Act of 2022 (RIA). This law established the EB-5 Integrity Fund, requiring regional centers to pay an annual fee. It also introduced changes to the regional center program, including new eligibility requirements and oversight measures.  

Most importantly, the RIA allows for concurrent visa filing. Concurrently filing Form I-526 (Immigrant Petition by Standalone Investor) with Form I-485 (Application to Register Permanent Residence or Adjust Status) allows EB-5 immigrant investors already in the United States to apply to change from nonimmigrant status to conditional permanent resident status. This allows investors to change their immigration status to “pending” and apply for an employment authorization document (EAD). In addition, after filing both forms, an investor can also apply for a travel permit. Investors can take advantage of concurrent filing to legally remain in the United States, travel freely in and out of the country, and work in the U.S.  

Additional recent updates and policy changes to the EB-5 program include: 

• Green card validity: In January 2023, USCIS extended the validity of Permanent Resident Cards for conditional permanent residents with pending Form I-751 or Form I-829 petitions to 48 months beyond the card’s expiration date 
• Visa availability approach: USCIS prioritizes Form I-526 petitions based on visa availability, with investors having an available visa or a visa soon to be available receiving priority processing