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The EB-5 Immigrant Investment Visa

The EB-5 Immigrant Investment Visa

The EB-5 Immigrant Investment Visa is an employment-based visa that allows foreign, accredited investors to obtain permanent residency in the United States. The visa was created in 1990 as a part of the Immigration Act of 1990, and it was designed to attract foreign investment to the United States and stimulate job growth.

The EB-5 visa is subject to an annual quota of 10,000 visas (including spouses and minor children under 21). In recent years, USCIS incompetence and poor management, along with increased demand for the visa has exceeded the quota, has resulted in a substantial, five-year backlog of applications. As a result, the processing time for an initial EB-5 visa is lengthy. Once the annual quota is reached, you will not have the opportunity to apply for and obtain an EB-5 visa until the following year begins, unless you are in the United States and can file a concurrent Adjustment of Status application.  It is important to carefully consider all aspects of the program before applying.

Eligibility for the program is directly related to what amount of positive impact a person can have on the economy of the United States. Thus, there are stringent regulations on the program.

To qualify for an EB-5 visa, an individual must do the following:
  1. Demonstrate that they intend to invest at least US $800,000 dollars in a new United States commercial enterprise. If the investment is not in a targeted investment area (such as a rural area or another area of the U.S. economy that is struggling), they must plan to invest US $1,200,000.
  2. Show that they have an income, assets, or financial resources that will support their investment.
  3. Create, directly or indirectly, 10 full-time jobs for U.S. workers. To indirectly create 10 full-time jobs, potential EB-5 recipients can invest through a USCIS regional center.
  4. Show that the investment will benefit the United States economy.
  5. Show that all monies being invested were obtained legally.
  6. Meet minimum standards of managerial involvement in the proposed business. If you are investing through a regional center, you are free of day-to-day management of the enterprise, but you will not be able to affect the managerial decisions regarding the investment of your money.

Extensive documentation is necessary to prove all of this.

If you may think that you qualify for the EB-5 visa, contact one of our experienced EB-5 lawyers so that they can guide you through the complex process and help you avoid costly missteps. We will begin our work by gathering all necessary information regarding your case. If determined that you are likely eligible, we will, if necessary, suggest adjustments to your business plan and help you gather all relevant documentation to prove your eligibility more fully and plainly. Given the limited number of EB-5 visas granted every year, it is especially important that your case be presented with all requested documents and evidence.

If you would like further information or to discuss a potential case, please call our office at 404.816.8611 to set an appointment with one of our experienced immigration attorneys, or you schedule your consultation online here.

EB-5 Regional Center Due Diligence Checklist For Regional Center Investments

ATTORNEY PORTION OF DUE DILIGENCE:

  1. The attorney will review the basics of the marketed Regional Center programs. Attorneys must not recommend specific projects. Our clients choose the investment they want to pursue. An important consideration for clients is an EB-5 Regional Center program with the long-term results.
  2. We recommend that the client retain their own independent real estate and/or business attorney to review the Subscription Agreement and/or Purchase Agreement.
  3. We recommend that the client retain their own tax attorney and financial advisor regarding profitability of the EB-5 investment and its tax consequences to the client.
  4. We recommend that the client visit the investment project and see past investment projects.

 

CLIENT DUE DILIGENCE REGARDING EB-5 PROJECTS:

  1. What is the projected return on investment?
  2. Obtain documents of returns on past EB-5 investment projects and review them with a qualified advisor.
  3. How many projects has EB-5 company completed?
  4. Is it possible that the EB-5 applicant will need to invest additional money over and above US $800,000 at a later date?
  5. Does EB-5 project have U.S. investors as well as immigrant investors?
  6. Does applicant get interest on money until it is spent on EB-5 project?
  7. When is the return paid? Monthly, yearly, or at the end of project?
  8. How is the return determined?
  9. In the subscription agreement of purchase contract, is there a provision for return of money if I-526 is denied? If the I-829 is denied?

CLIENT DUE DILIGENCE REGADING EB-5 IMMIGRATION ATTORNEYS:

 

  1. How many I-526 approvals?
  2. How many I-526 denials?
  3. How many Conditional Green Card approvals?
  4. How many Conditional Green Card denials?
  5. How many Removals of Condition approvals for late 90s cases?
  6. How many Removals of Condition denials for late 90s cases?
  7. How many post-2002 Removal filings/approvals?
  8. How many post-2002 Removal denials?

 

CLIENT DUE DILIGENCE REGARDING REMOVAL OF CONDITIONS:

  1. Obtain bank reference of EB-5 general partner and/or principals.
  2. Obtain Dunn and Bradstreet general partners and/or principals.
  3. Any past lawsuits (general partners or principals)?
  4. Any past criminal convictions (principals)?
  5. When was the Regional Center established?
  6. How long has the EB-5 company been doing business? Any previous business?
  7. When can the investment be sold? When can the client get their money ($500,000) back?
  8. How is the amount determined?

EB-5 Key Requirements

  1. Be an accredited investor under the rules of the Securities and Exchange Commission. Generally, an EB-5 recipient must have a net worth of over 1 million or must have made over 200,000 per year for the past 5-7 years.
  2. Intend to make a capital investment of, at minimum, $800,000 to $1,200,000. Investments of US $800,000 are permitted only if the investment is made in a rural area or an area of high unemployment.
  3. In advance use a qualified attorney to analyze the source of funds to ensure that they have been obtained lawfully. Ample documentation is required to prove that the money being invested was obtained legally.
  4. Make investment at risk. Federal law of the United States requires that all the investor’s funds invested in a USCIS EB-5 Regional Center be at risk of loss and be used to generate jobs and profit.
  5. Create 10 full-time jobs for U.S. workers, whether directly or indirectly, through the investment. This must be done in a period of two years from the date of becoming a lawful permanent resident (green card holder). Investing in an EB-5 regional center may create jobs indirectly and facilitate meeting the 10-job requirement.
  6. Be an active participant in managing the commercial enterprise you invest in. Most commercial enterprises are recognized as valid investments under the EB-5 program. Non-commercial enterprises, such as managing a private residence, do not count. If investing through an EB-5 regional center, daily management of the investment project is undertaken by the management of the regional center and not you.