FREQUENTLY ASKED QUESTIONS
1. How many EB-5 visas are issued every year?
Answer: Up to 10,000 visas may be issued annually, although actual usage has always fallen short of this number. Typically 3,000 are set aside or reserved for investors who invest in a targeted employment area (TEA) and 3,000 are set aside for investors who invest through EB-5 regional centers.
2. When was the EB-5 program established?
Answer: The EB-5 Program was created by the United States Congress in 1990 through passage of the Immigration and Nationality Act. In 1993, Congress created the Pilot Program to stimulate immigration under the EB-5 category. The Pilot Program allows individuals from around the world to attain United States citizenship through investment in U.S. businesses and creation of U.S. jobs. Both Programs are currently being administered by the United States Citizenship and Immigration Services (“USCIS”), an agency of the Department of Homeland Security.
3. What happens if my I-829 is denied? Must I leave the US immediately?
Answer: If an I-829 is denied, USCIS currently issues a Notice to Appear (NTA) to initiate removal proceedings at immigration court. There is no appeal from an I-829 denial. However, in removal proceedings, the judge will review your petition and make an independent decision.
4. Can the minimum investment amount ($500,000) ever be increased?
Answer: The investment amount is $500,000 if the investor is in a Targeted Employment Area (TEA), an area whose unemployment is over 1½ times the national average or a rural area. An investor can invest over $500,000 in this area if he/she wants to. The general minimum is $1,000,000 investment if the investment is not in a TEA.
5. What is the minimum required amount of capital to be invested in order to apply for an EB5 visa?
Answer: The minimum required capital for an EB-5 investment is $1,000,000. However, if the investment is in a Targeted Employment Area (TEA), the investment minimum is reduced to $500,000. A TEA is defined as a rural area or an area where the unemployment has been 1½ times the national average.
6. What is the process to obtain lawful permanent residency through the EB-5 visa program?
Answer: The process of obtaining permanent residency through the EB-5 Immigrant Investor Visa Program is an expeditious path to getting a green card, however it requires a lot of documentation. There are two different types of investment: Direct Investment or Indirect Investment through a Regional Center. The minimum investment is $1 million. However, if the invested project is in a Targeted Employment Area (population less than 20,000 and unemployment 150% above the national average) you can qualify for the reduced threshold of $500,000. The first step is filing an I-526 with USCIS. The most important part of the I-526 is showing the Source of Funds to prove that the capital being used in the investment was obtained in a lawful way. If USCIS accepts your petition, you will be granted a conditional green card for 2 years. After the two years you can apply for the I-829 Removal of Conditions. If you can show that your investment was used entirely and created 10 full time jobs for US citizens you will be granted a green card and will become a permanent resident. After 5 years of holding a green card you can apply for a US passport and then will be a US citizen. The EB-5 Immigrant Investor Program includes the investor, spouse, and any unmarried children under the age of 21.
7. Can I apply for an Eb-5 visa if I am currently out-of-status (i.e., I live in the United States, but do not have a current visa)?
Answer: You can still petition for EB-5 investment immigration. However once it is approved, you must use consular processing to adjust your status. This means you will need to return to your home country to wait for consular processing of an approved EB-5 petition.
8. If I was denied another U.S. visa, can I still apply for EB-5?
Answer: Denial of a visa does not disqualify an investor from receiving an EB-5 Green Card, as long as the reason does not relate to immigration fraud, a criminal background, or some other major ineligibility issue.
9. Is EB-5 a truly passive investment?
Answer: If the investor is a Limited Partner, then the investor’s required management activity and responsibility is minimal and it is generally considered a passive investment.
10. Can the investment amount be raised through angel investors or venture capitalists who are ready to back the petitioner?
Answer: The minimum investment amount of either $500,000 or $1,000,000 must be your own funds or from a gift or loan not secured by the investment.
11. Is a bank loan of US$500,000 acceptable as investment funds? If so, must the investor provide evidence or explanation regarding the loan?
Answer: A bank loan is acceptable, however, if it is invested in a Regional Center investment, you must be an accredited investor with a net worth of at least $1,000,000, not including your residence, or net income at least $200,000 in each of the last 2 years. Also, you need to show how you will pay off the loan.
12. If I invest $500,000 for the EB-5 project, do I still need to show that I have a net worth in excess of $1,000,000?
Answer: If you are an “Accredited Investor” under the SEC rules. Search for: http://www.sec.gov/answers/accred.htm (cut and paste if need be) and read all about it, but here are just TWO possibilities that seem most likely to be what you are after:
a natural person who has individual net worth, or joint net worth with the person’s spouse, that exceeds $1 million at the time of the purchase, excluding the value of the primary residence of such person;
a natural person with income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year.
13. How do you structure a gift of EB-5 funds?
Answer: You can receive a gift of funds into your personal account in an overseas account and then transfer these personal funds into the EB-5 Regional Center escrow account.
14. Upon receipt of Conditional Green Card: 1. Can the investor, spouse and children work and study in US? 2. How long do they have to stay in US every year? 3. Can their stays in US accumulated (ie. accumulated from 2 or 3 trips every year) or do they have to be a continuous stay (ie. stay continuously for 6 months)?
Answer: Upon receipt of the Conditional Green Card, the investor, spouse and minor child can work and study in the US. They should plan to be in the US generally a minimum of at least 6 months a year. If a child is in school, it’s best that he/she completes the term of school in the US.
15. If the investor died: 1. While holding a Conditional Green Card, what will be the outcome? Can his spouse replace the investor’s position? Can the spouse and children continue to hold the Conditional Green Card and file the I-829 application? 2. While holding a Unconditional Green Card, what will be the outcome?
Answer: If the investor died while holding a Conditional Green Card, the spouse can continue and file I-829 application. If the investor died while holding a Permanent Green Card, spouse would retain the Permanent Green Card.