The EB-5 Immigrant Investment Visa Program
In 1990, Congress created the fifth employment-based preference (EB-5) immigrant visa category. This visa category is targeted towards qualified foreign nationals seeking to obtain lawful permanent residency in the U.S. by investing in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time U.S. jobs per investor. Currently the program is administered by U.S. Citizenship & Immigration Services (USCIS). The required investment per EB-5 investor is currently $1 million, although that threshold is reduced to $500,000 if the investment occurs in a rural or high unemployment area, known as Targeted Employment Area (TEA).
Previously, on November 21, 2019, the EB-5 Program went through its first major change since the inception of the program in 1990, through new regulations published by the Department of Homeland Security (DHS).The regulations had, among other things, increased the minimum investment amount to $1,800,000 or $900,000 if located in a TEA, and gave the USCIS the authority to determine TEA designations instead of the individual states. However, on June 22, 2021 a federal judge in the case Behring Regional Center LLC v. Wolf, et al. (3:20-cv-09263, United States District Court, Northern District of California) found that the new regulations were illegally implemented and vacated the regulations. Based on the judge’s ruling, the USCIS has publicly stated that while it considers the decision, it will apply the regulations that were in place before the new regulations were implemented in November 2019 (https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program.)
Regional Center vs Direct EB-5 Program
In 1992, Congress created an additional component of the EB-5 program, the Regional Center Pilot Program. A Regional Center is a private or public entity designated by USCIS that is authorized to coordinate with multiple immigrant investors and to pool their investments for greater economic impact. Regional Centers are authorized to operate within defined geographic regions and within specific industry sectors.
There are several primary differences between the direct EB-5 program and the Regional Center Program. The Regional Center Program allows for the use of economic modeling to calculate the indirect and induced job creation related to all spending for each project. This means that in the Regional Center Program, the EB-5 investor can rely upon direct, indirect, and induced jobs to meet the job creation requirement of the EB-5 program.
EB-5 Immigration Process
There is a sequence of steps in the EB-5 immigration process for an EB-5 investor to earn a permanent green card. Once the EB-5 investor selects a USCIS-approved Regional Center investment, the EB-5 participant files an I-526 petition requesting conditional residency. The USCIS and the Department of State will ultimately determine whether the EB-5 participant qualifies for the conditional EB-5 visa. Due diligence during this part of the process includes a detailed review of the sources of the EB-5 investor's funds, family history, and other representations of the EB-5 investor, their spouse, and qualified unmarried children under the age of 21. This petition also includes a thorough description of the EB-5 investment and any economic models used to determine job creation. If approved, the EB-5 investor applies for a conditional green card through a consulate interview or an adjustment of status (if he or she is already in the U.S. on another visa). If approved, the EB-5 investor receives a conditional green card that is valid for two years.
Within the final 90 days of the two-year period of conditional residency, the EB-5 investor files the I-829 petition to remove the conditions on the green card. This petition demonstrates that the EB-5 investor's capital was fully invested and at risk during the two-year period and that the requisite 10 qualifying jobs have been created. Upon approval of the I-829 petition, the EB-5 investor and his or her qualified family members become lawful permanent residents and can ultimately choose to become U.S. citizens after five years.