EB-5 Program

Through the EB-5 program, immigrant investors and their spouses and unmarried children under the age of 21 could obtain permanent residency in the United States.

Although it is possible to obtain a Green Card through this program, there are a series of steps that investors must complete first. Therefore, it is crucial that you contact our immigration law firm in New Jersey in advance.

EB-5 Program For Immigrant Investors In The United States In 2024

Alien investors may be eligible for a Green Card under the EB-5 classification if they:

1. Invest a significant amount in a commercial enterprise in the United States, and
2. Plan to create or preserve at least 10 permanent jobs for qualified American workers.

The United States Congress created the EB-5 investor program in 1990 to stimulate the US economy by creating new jobs. Additionally, the program allows capital investment by foreign individuals.

This program is also known only as EB-5, as it is the name of the employment-based fifth preference visa category. The other visas are:

• EB-1.
• EB-2.
• EB-3, and
• EB-4.

What Is The EB-5 Program?

The EB-5 program is currently the only visa program in the United States that allows foreign investors to directly obtain permanent residency.

• This visa program has increasingly become a source of considerable investment in US development as it brings capital into the US economy. 
• As if that were not enough, EB-5 visas allow the creation of tens of thousands of jobs in the country. 
• EB-5 visas differ from most programs administered by USCIS in that they aim to create new jobs and economic growth in the nation.

How Does The EB-5 Investor Program Work?

This program works as follows:

• A foreign investor wants to invest a minimum required amount in a U.S. business that creates jobs.
• USCIS will evaluate the investor’s initial application. If this is approved, the investor may apply for conditional residency in the US.
• After the conditional residence is approved, it will last for two years. After this time has elapsed, the investors may request that their conditions be removed and that their conditional residence be converted into a permanent one. 
• However, to obtain permanent residence, it is necessary that the investment has resulted in the creation of a minimum of 10 jobs.

How To Obtain The EB-5 Visa?

To obtain the EB-5 visa, a foreign investor must submit to USCIS:

1. Form I-526, immigrant petition by individual investor, or
2. Form I-526E, immigrant petition by regional center investor.

In the event that an immigrant visa is immediately available to the investor, they may file Form I-485, application to register for permanent residence or adjustment of status. The presentation of form I-485 can be done: 

• In conjunction with I-526 or I-526E.
• While the I-526 or I-526E is pending, or
• After USCIS has approved the I-526 or I-526E.

To verify whether an immigrant visa is immediately available upon filing the I-485, one should consult the visa availability, priority date, and visa bulletin.

What Happens After The EB-5 Visa Petition Is Approved?

Once USCIS approves the Form I-526 or I-526E petition, the immigrant must follow one of the following options: 

1. To obtain the EB-5 visa from abroad (outside the US): Submit Form DS-260, Immigrant Visa Application and Alien Registration, to the United States Department of State (DOS) , or
2. To obtain the EB-5 visa within the US: Submit form I-485 to USCIS to adjust your status in the United States to that of conditional permanent resident.

Some time after obtaining the EB-5 visa, the immigrant must submit to USCIS Form I-829, investor petition to remove conditions on permanent resident status. 

This must be done within the 90-day period before the second anniversary of adjustment of status or admission to the U.S. as a conditional resident. If USCIS approves the petition, it will remove the conditions for the investor and their dependents included. 

Immigrant Visa Reservations

In accordance with the EB-5 Reform and Integrity Act, new EB-5 visas were created reserved for qualified immigrant investors. As a result, each fiscal year a certain percentage of EB-5 visas are available to certain qualified immigrants.

Next, we will show the percentage of EB-5 visas that are reserved for investors according to the area invested:

• Rural: 20%.
• High unemployment area : 10%.
• Infrastructure projects: 2%.

How Much Money Is Needed For An Investor Visa In The USA?

Generally, to obtain an EB-5 investor visa, you need to invest $500,000 in a rural area or $1,050,000 in a business in a US city. 

It should be noted that the definition of capital does not include:

• Assets acquired directly or indirectly through illicit means. That is, the product of criminal activities. 
• Capital invested with a guaranteed rate of return on the amount invested.
• Capital invested in exchange for a bond, promissory note, obligation, convertible debt, or any other arrangement between the investor and the new business enterprise.
• Invested capital that is subject to any type of agreement between the foreign investor and the new business enterprise that grants the investor a contractual right of repayment. 

Likewise, immigrant investors have to demonstrate that they are the legal owners of the invested capital. It should be noted that USCIS has emphasized that future adjustments will be linked to inflation.

The latter can be verified through the Consumer Price Index for All Urban Consumers (CPI-U) from March 2022 until the date of the adjustment. These adjustments will occur every 5 years, with the first adjustment being in January 2027.

Area Of ​​Employment Terminology In The EB-5 Program

An area of ​​employment in which an investor may invest may be in a rural area or an area that has experienced a high level of unemployment. The latter means that it is a minimum of 150% of the national average unemployment rate.

Therefore, these terms are defined as follows:

• Rural area: It is any area that is not or is within a metropolitan area or any city or town that has a population of 20,000 inhabitants or more.
• High unemployment area: Consists of the census tract or contiguous census tracts where the new commercial enterprise will primarily do business. These areas are located where the weighted average unemployment is 150% of the national unemployment average.
• Infrastructure project: It is a capital investment project in a submitted or approved business plan that is managed by a government entity. 

General Requirements To Obtain The EB-5 Visa

All EB-5 investors must invest in a new business enterprise, as long as it has been established:

• On or before November 29, 1990, and that:
  • Has been purchased and the type of business is reorganized or restructured in such a way as to result in a new business enterprise, or
  • Has expanded through investment such that at least a 40% increase in net worth or number of employees occurs.
• After November 29, 1990.

Likewise, commercial enterprise must be any for-profit activity that is en route to the continued conduct of legal business, including:

• Commercial trust.
• Corporation.
• A single owner.
• Another commercial entity, whether public or private.
• Business Alliance.
• Central company.
• Partnership.

These definitions include a commercial company that consists of a parent company and all of the subsidiary companies that it owns.

Requirements For Job Creation

An EB-5 investor must invest a required amount in a new U.S. business venture that will create full-time employment for at least 10 qualified employees.

• If the new business enterprise is not located in a regional center, this business must directly create the full-time jobs that will be counted.
  • This means that the new company must be the employer of the qualified employees.
• In troubled companies, EB-5 investors can depend on job preservation. Therefore, the investor must demonstrate that the number of employees will be preserved at no less than the pre-investment level for a period of 2 years.
• The new commercial company located in a regional center must create:
  • Direct jobs: Those jobs that demonstrate an employer-employee relationship between the new company and the employees, or
  • Indirect jobs: Those jobs outside the new business venture that were developed as a result of the new business.

New Business Enterprise Terminology In The EB-5 Program

• Troubled Business: A business that has existed for a minimum of 2 years and has reported net losses during the 12 or 24 month period prior to the priority date indicated on the I-526. 
• Qualified employee: An American citizen, permanent resident, or other immigrant authorized to work in the United States. This includes immigrants under:
  • Refuge or asylum in the United States.
  • Conditional resident.
  • Cancellation of removal.
• Full-time employment: Means that the employment of a qualified employee by the new company is a position that will require a minimum of 35 hours of work per week. 
• Shared employment agreement: Two or more qualified employees share a full-time position. Additionally, it will count as full-time employment as long as the required weekly hours are met. 

Jobs that are temporary, seasonal, intermittent, or transitory in nature will not qualify as full-time jobs. However, jobs that are expected to last 2 years are generally not considered intermittent or temporary. 

How Much Does It Cost To Apply For The EB-5 Visa in 2024?

The total cost for the EB-5 visa application can vary between $4,020 and $4,900 depending on where the investor applies. To learn more about this, we explain that:

• The applicant must pay a fee of $3,675 to request Form I-526.
• In the event that the I-526 is completed abroad through consular processing, the investor must pay an additional $345.
• As if that were not enough, the immigrant will have to pay the medical examination fee, which will vary depending on the country of origin of the applicant.
• If the investor applies for the EB-5 visa within the US, then they will have to pay about $1,140 for the I-485 filing plus $85 for biometric services.

Therefore, the immigrant investor must pay between $4,020 and $4,900 for the EB-5 visa, not counting the $500,000 or $1,050,000 to qualify for the visa.

When Did The New EB-5 Program Regulations Go Into Effect?

In July 2019, the Department of Homeland Security (DHS) published EB-5 investor program modernization regulations. This rule provides for additional increases based on inflation starting in October 2025.

Vacation Of Modernization Regulations For EB-5 Investor Program

In June 2021, the U.S. District Court for the Northern District of California vacated the EB-5 modernization final rule. Therefore, USCIS will apply the EB-5 regulations that were in effect before the rule was finalized in November 2019.

Under the rescinded rule that was published by DHS, several changes to the EB-5 investor program went into effect in November 2019, but are no longer in effect. The new rule modernizes the EB-5 visa to:

• Increase minimum investment amounts to account for inflation.
• Allow some EB-5 investors to retain priority date.
• Clarify USCIS processes for removing conditions on permanent residency.
• Reform certain specific employment area (TEA) designations.
• Make other regulatory and technical reviews.

Aspects To Consider About The Modernization Rule

• Priority Date Retention: Some investors would retain the priority date of a previously approved EB-5 application when submitting a new application.
• TEA: USCIS would directly determine high unemployment TEA designations. Therefore, USCIS would no longer defer to TEA designations made by state and local governments. Besides:
  • High unemployment TEAs would consist of a combination of census tracts that include the tract or tracts contiguous to the new business enterprise.
  • TEA could include cities and towns with a population of 20,000 or more outside metropolitan statistical areas. However, they must have experienced an average unemployment rate of 150% of the national average.
• Procedures to remove residence conditions: Derived family members of the main applicant who are permanent residents should submit a separate application to remove residence conditions.
• Increase in minimum investments: The standard minimum investment amount would be increased to $1,800,000 from $1,000,000. This is to take inflation into account.
  • On the other hand, the minimum investment in TEA would increase to $900,000 from $500,000 to account for inflation.
  • Additionally, future adjustments will also be linked to inflation according to CPI-U and would occur every 5 years.

How Can Our Immigration Law Firm In New Jersey Help You Process The EB-5 Program?

Our firm has successfully represented foreign investors in their respective EB-5 visa processes. 

• As we have seen in this article, all matters related to the EB-5 visa are individual and independent. Therefore, it is essential to have the best legal assistance possible.
• Our lawyer Carolina can represent investors and their families from any country, be it Argentina, Colombia, Mexico, Venezuela, China, Canada, Brazil and more. 
• The processing of this visa requires an arduous process, so it is important to determine that everything is correct.

If you are interested in getting more information about this visa, please contact us immediately. To do this, you can call us using our phone number, send us an E-mail or schedule an appointment with the office, located in Ridgewood, New Jersey.