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EB-5 Immigration Issues

These EB-5 immigration FAQ’s are for informational purposes only and are not to be relied upon as legal advice. Therefore we strongly urge all prospective investors to consult a licensed immigration attorney.

1. Must I have previous business experience or education?

The investor is not required to have any prior business experience. A requirement for the investor is that he or she has the experience in investing or has the ability to understand the transactional documents in the EB-5 investment and have the required net worth and capital to make such an investment.

2. Must I speak English?

No, the ability to speak English is not a requirement; however, an investor should obtain the services of a translator (friend, attorney, family member) to read the materials, as English is the official document in the EB-5 transaction. Please contact our office for more information if you have questions.

3. Must I be in good health?

Yes. You must submit to and pass a health screening as part of the Consular review process before a conditional EB-5 Visa is granted.

4. What is meant by the requirement that the investor’s assets be “lawfully gained”?

Under USCIS regulations, the investor must demonstrate that his assets were gained in a lawful manner. This requires the investor to prove his investment funds were obtained through lawful business, salary, investments, property sales, inheritance, gift, loan, or other lawful means.

5. Can money gifted by a parent or other relative be used for an EB-5 Investment?

Yes, provided that any applicable gift taxes are paid. It must be demonstrated that the gift is an actual arm’s length transaction and is not a mere ruse or that the gifted funds will be given back after permanent resident status is granted.

6. What is the difference between “conditional” and “unconditional” Green Cards?

Under the regulations, an investor who files an I-526 petition with the USCIS and is approved must pass further the consulate interview, then and only then, the EB-5 immigrant a receives a “conditional” Green Card. A “conditional” Green Card is called a “conditional permanent” Green Card and offer the same rights and privileges as a U.S. citizen; however, it has strict requirements for U.S. residency for approximately two years. One year and nine months after it is issued, a three-month window opens up during which an individual must file another application (the I-829) with the USCIS to verify that all of the required funds have been invested throughout the conditional residency period and the requirement of creating ten new American jobs has been met. When the conditional resident status has been approved, full unconditional resident status is granted and a permanent Green Card is issued. The permanent Green Card has less restrictions on actual U.S. residency.

7. If my I-526 petition is approved by USCIS, what is the purpose of the Consulate application and Interview, and how soon do I get my “Green Card”?

Upon approval of the I-526 Petition, an applicant must wait for notification from the United States Consulate in your home country to prepare documents for the Visa interview. The purpose of this procedure is to ensure that the investor and his or her family undergo medical, police, security and immigration history checks before the conditional permanent resident visas are issued. At the interview, the consulate officer may address these issues and information printed on the I-526 application, including asking the investor to summarize the nature of his or her immigrant investment. If the investor and his or her family are in the United States, then you may apply for adjustment of status by filing form I-485, and supporting documents, the application may be filed at the appropriate office of the USCIS.

8. Can I apply if I have been rejected or terminated in the past by USCIS for an L-1, E-2, B, or other visa?

Rejection in the past does not disqualify the applicant, unless the reasons are related to immigration fraud or other major problems. It is most important that all criminal, medical, or United States immigration history problems be disclosed to the limited partnership and immigration legal counsel in advance of application.

9. After petition approval, can members of the family interview in different countries?

Family members can interview in different countries. The country of origin or where the family has current ties is the standard interview site. Often one member of the family is located in another country, such as a student attending school in the United States. The student does not have to return to the country of origin and can adjust status in the United States at the district office of the USCIS.

10. With an EB-5 Investment who receives the permanent residency (“Green Card”)?

Husband, wife and any unmarried children under the age of 21, as long as the individual was under 21 at the time of filing the I-526 petition. Note: If processing times exceed a certain time, the child may not qualify as an under 21 child. Consult your immigration counsel for further information. It is possible for adopted children to be included in the family. Upon approval you will receive a form evidencing approval and a travel document. You should also receive a temporary Green Card in the mail.

11. What issue causes the most problems when applying for an EB-5 visa?

The most common problem area has been insufficient documentation of the source of funds. Many people try to disclose the least possible information only to have the file returned with a request for further information. It is better to provide too much information rather than too little information. In this era of terror alerts, and suspicions about money laundering, USCIS case examiners require a well-documented source of funds.

12. What is the difference between permanent residency and citizenship?

Once you obtain a permanent Green Card, and become a legal permanent resident, you have most of the rights and obligations of United States citizens, except that you cannot vote and are not entitled to some public benefits. You are subject to the same tax filing requirements and entitled to the same tax rates and deductions as United States citizens. Your “Green Card” is your most important travel and identification document. When your Green Card arrives, please look at it carefully. You may need to extend it in ten years. If you need to replace it before then because it is lost, stolen or dilapidated, you may file a form with the USCIS. One of the most important rights legal permanent residents possess is the right to obtain United States citizenship after five years. There are two ways to become a United States citizen. One is by being born in the United States or being born to a United States citizen. The other way is by naturalization. The first step in becoming a United States citizen through naturalization is to become a Legal Permanent Resident (LPR). Being an LPR for five years is one of the basic requirements for qualifying for naturalization. A second requirement is being physically present in the United States for thirty months during the five years prior to the naturalization application. Once becoming a United States citizen, an individual is entitled to benefits including the right to vote and hold public office.

13. Can my Green Card be taken away from me?

Once you receive a Green Card, there are only two conditions required to keep it for life. First, you must not become removable or inadmissible. The most common way of doing this is to be convicted of a serious crime. The second requirement is that you not abandon the United States as your permanent residence. As long as you are not planning to make your home somewhere else, then legally you are still a resident of the United States. As a general rule, if you have a Green Card and leave the United States for more than one year, you may have a difficult time reentering the country. That is because the USCIS feels an absence of longer than one year indicates a possible abandonment of United States residence. To avoid a full-scale inspection, you should return within six months. It is a common misconception that to keep your Green Card all you need to do is enter the United States at least once a year. The fact is that if you ever leave with the intention of making some other country your permanent home, you give up your United States residency when you go. The USCIS will look to your behavior for signals that your real place of residence is not the United States. On the other hand, remaining outside the United States for more than one year does not mean you have automatically given up your Green Card. If your absence was intended from the start to be only temporary, you may still keep your permanent resident status. However, you may no longer use your Green Card as a United States entry document. You must either apply at a United States consulate for a special immigrant visa as a returning resident or you must get what is known as a reentry permit.

14. I have a Green Card and plan on traveling out of the United States for a long time. Can I keep my Green Card?

Maybe. The primary rule surrounding Green Cards is that you lose it if you give up your United States residence. The more common criterion, though, is time based. There are three important time limits to know about:

15. I need to travel out of the United States for more than a year. Is there nothing I can do?

You can apply for a reentry permit (on form I-131) before you leave the United States. You can depart before the reentry permit is approved. With such a reentry permit, you can return to the United States even after one year until the reentry permit’s expiration date. Reentry permits are issued for two years. You cannot renew a reentry permit, but you can return to the United States for a short time and apply for a new one. The second such reentry permit will be granted for two years also, but subsequent ones may only be approved for one year at a time.

16. How long is a Green Card valid for?

There are several answers to this question. If you received your Green Card through marriage, and have not been married for two years when you got your Green Card, you should have a conditional Green Card that is good for two years. Also, if you received your Green Card through investment (EB-5), you should have a conditional Green Card for two years. You must apply for removal of the condition within ninety days before the two years are up. Once that is approved, you have a regular unconditional Green Card. If you apply either too early or too late, you have a problem and should consult with an attorney for advice. If you do not have the condition removed, the Green Card will become invalid at the end of two years, and your permanent resident status will be terminated. Unconditional Green Cards are good for ten years. This does not mean that after ten years, you stop being a legal permanent resident – only the card itself becomes invalid. You must apply for a new one using form I-90. Without a current Green Card, you cannot use the Green Card to travel out of the United States, and you also cannot use the Green Card as evidence that you are permitted to work.

17. How long must I remain in the United States each year?

The first requirement of any investor after they receive the visa at the United States overseas consulate office is to enter into the United States within 180 days of visa issuance from the consulate. The investor must then establish residency in the United States. Evidence of intent to reside includes opening bank accounts, obtaining a driver’s license or social security number, paying state and federal income taxes, renting or buying a home. The United States resident may work overseas if required based upon the nature of the business or profession. For those permanent residents living outside the United States, we suggest the investor and family re-enter the United States no less than once every six months. The longer the investor and family are present in the United States, the less likely the government is to claim that the investor “abandoned” the United States as a permanent residence – thereby endangering his Green Card status. In some cases, investors may seek the issuance of a “reentry permit” which allows the Investor permission to remain outside the United States for as long as two years without having to reenter the country to maintain permanent resident status.

18. Who may receive the permanent residency (“Green Card”)?

An individual or a family (husband, wife and any unmarried children under the age of 21) may receive permanent residency. It is also possible for adopted children to be included in the family.

19. How long does it take for me and my family to receive the “Green Card”?

The average processing time for clients of the EB-5 Program can currently take more than a year or possibly longer. The initial application and petition are usually approved in six to eight months, with the balance of the time being required for completing other United States Citizenship and Immigration Service (USCIS) and Department of State forms and for scheduling the interview.

20. How long does USCIS take to process my visa petition?

Processing times vary from as little as a few weeks to as much as nine months. We cannot predict or promise a particular processing time. You should plan for the entire process to take approximately one year to one and a half years.

21. What are the obligations of the investor to participate in the investment?

The investor must be “active” in the management of the investment by engaging in the management of the new commercial enterprise, either through day-to-day managerial control or through policy formation. However, the law does specifically allow that an investor will qualify as a “limited partner” as defined in the Revised Uniform Limited Partnership Act. The project meets all the regulation requirements by enrolling the investor in the investment as a limited partner. Limited partners have obligations in a limited to partnership such as the voting rights of limited partners. It is a reduced role however meets the criteria of the EB-5 Program. This limited role allows the investor to continue to engage in his own business. Additionally, this allows the investor to live where he pleases, and gives him the option to enter and exit the United States. Most importantly, the limited partner, like the corporate shareholder, is only liable to the enterprise to the extent of the agreed-upon investment. CMB uses this business structure to protect the investor and meet the requirements of the EB-5 law.