Frequently Asked Questions
EB-5 Basics
Immigration Related
Project Related
Source of Funds Related
Are there age restrictions to the EB-5 program?
There are no age restrictions for the EB-5 program. Our clients range from young adults (with supervision of their parents) to those of elderly age. Pursuant to immigration laws of the United States, there are no minimum age requirements. That said, some regional centers require their investors to be at least 18 years of age.
Must I speak English?
There is no requirement to speak English, but it would certainly help in the process.
Are any countries excluded from eligibility for the EB-5 program?
Generally, all nationalities are welcome to apply for the EB-5 program.
What are the benefits of permanent residency?
A Green Card provides all the benefits available to a U.S person with limited exceptions, including the right to vote in a national election or work in certain government positions such as the FBI. A Green Card provides the following benefits:
- Become eligible for U.S. citizenship and obtain your U.S. passport
- Live and work anywhere in the United States
- Freely travel in the United States and to certain countries such as Canada and Mexico
- Study in the United States at resident cost and legally work while enrolled as a student
- Obtain free government grants, scholarships, or 0% government loans that are guaranteed for students
- Start a business anywhere in the United States
- Access to world class healthcare
What is the process of obtaining lawful permanent residency through investment?
The process of obtaining lawful permanent residency through investment begins with filing an I-526E petition with the United States Citizenship and Immigration Services (USCIS). An EB-5 applicant is required to show that:
- they have the required funds,
- the funds were obtained from a lawful source,
- the funds have been invested in a qualifying project in the United States, and
- the investment meets USCIS requirements.
Once the EB-5 application is approved, the investor is eligible to apply for an immigrant visa at the nearest U.S. consulate (if outside the U.S.) or for adjustment of status (if already in the U.S.). Once approved, the EB-5 investor is given conditional lawful permanent residency for two years. 90 days prior to the end of the two-year conditional residency period, the investor must file an I-829 petition to remove the conditional status by demonstrating that the required jobs have been created with the investment. Upon the approval of the I-829 petition, the investor will be granted unconditional lawful permanent residency and is eligible to apply for U.S. citizenship five years after the initial grant of conditional permanent residence.
What if I am already in the U.S. on another visa status?
The initial application process is the same whether you are in the U.S. or abroad. However, pursuant to new EB-5 legislation, you may apply for concurrent filing if you are already in the U.S., meaning that you can receive work and travel authorization while you await the adjudication of your EB-5 petition. To learn more about concurrent filing, please refer to the question below.
Will my application take longer if I am of Indian nationality?
No, if you and your family act now and apply under the new category of reserved visas (visa set asides), your application will not take longer even if you are of Indian nationality.
Visa set asides are a new category of reserved visas under the EB-5 Immigrant Investor Program created by the United States Congress by virtue of the passage of the EB-5 Reform and Integrity Act (RIA) in March 2022. The RIA provides that of the visas made available for the EB-5 program in each fiscal year, 10% are reserved for applicants who invest in high unemployment areas, 20% are reserved for applicants who invest in rural areas, and 2% are reserved for applicants who invest in infrastructure projects.
Read our blog here to find out more about how visa set asides can help you expedite your EB-5 application.
What is concurrent filing?
Concurrent filing allows foreign investors to file their EB-5 application (I-526E petition) and application for adjustment of status (I-485 petition) with the USCIS simultaneously. Therefore, applicants can live and work in the United States while they await the adjudication of their EB-5 application.
Once an AOS application is submitted to USCIS, applicants must then also apply for Employment Authorization (I-765 petition), which will provide them with a work permit until permanent residence is granted. Upon approval of an applicant’s I-765 petition, USCIS will grant an employment card (EAD card) authorizing the applicant to work in the United States as well as a travel permit allowing the applicant to travel outside of the United States.
Once an applicant has started the concurrent filing process, they must not leave the United States until they have received their travel permit as leaving the country without a travel permit is deemed as abandoning the application. Given that the processing time for concurrent filing is around ten months, this option is not suitable for all EB-5 investors. Concurrent filing is suitable for students and people willing to stay in the United States. In contrast, concurrent filing is not suitable for people who have professional commitments out of the country and must travel abroad frequently.
Does the EB-5 program have previous professional experience, language skills, or minimum educational requirements?
No, the EB-5 program does not require investors to have previous professional experience, English language proficiency, or a minimum level of education. While the EB-5 program does have certain requirements, it is not a point-based system similar to other government immigration programs, and as such, does not have professional experience, educational, or language skill requirements. That said, an applicant’s personal and professional background in the form of supporting documentation including but not limited to resume, degrees and certifications, salary certificates, and bonus letters will be presented to USCIS.
How many years is my permanent resident card valid after USCIS removes conditions?
Typically, Green Cards are valid for a period of ten years and can be renewed. Our clients typically opt to trade in the Green Card for their U.S. passport after holding the Green Card for a period of five years. Otherwise, you can continue to renew the Green Card every ten years at will.
What are the tax implications of receiving a Green Card?
Investors should consult their tax or legal advisors prior to making an investment. In general, the United States requires income tax reporting by all U.S. residents based on worldwide income. There are numerous tax treaties regarding avoidance of double taxation, but your advisor can provide you with the required information in your specific situation.
What is the EB-5 Reform and Integrity Act of 2022?
The EB-5 Reform and Integrity Act of 2022 (the Act or the RIA) is the new EB-5 legislation which was signed into law in March 2022 and became effective in May 2022. The Act reauthorized the EB-5 Regional Center Program through September 30, 2027, and implemented various changes to the program such as increasing transparency and security for foreign nationals participating in the program. The Act increased the minimum investment amounts to $800,000 in a Targeted Employment Area (TEA) and to $1,050,000 outside a TEA.
The implemented reforms of the Act have made the EB-5 program more attractive to families looking to immigrate to the United States. Amongst the additional benefits provided for EB-5 applicants include the following key provisions:
- The EB-5 program has been reauthorized until 2027, which is the longest authorization provided by Congress since 2015. This provides security and comfort for EB-5 investors in knowing that the program will not face suspensions during this time period. Additionally, in accordance with the grandfathering provision of the Act, petitions filed on or before September 30, 2026 will continue to be adjudicated even upon the expiration of the EB-5 program.
- Regional centers are to be audited by the Secretary of Homeland Security at least once every five years. Upon a regional center failing to satisfy the requirements of the audit, such regional center will lose its designation.
- Good faith investors are provided with certain protections upon the termination or debarment of a regional center, a new commercial enterprise, or a job-creating entity. Such good faith investors will be given notice by the Secretary of Homeland Security and will have 180 days to either (1) invest in another new commercial enterprise or (2) have the new commercial enterprise associate with an approved regional center.
- Certain EB-5 investors residing in the United States may concurrently submit an Adjustment of Status petition (Form I-485). Such investors will receive a travel permit allowing them to travel outside the U.S. as well as work authorization to work in the United States.
How long must I remain in the U.S. per year after I am granted lawful residency status?
After an investor receives their immigrant visa at the U.S. consulate overseas, they must enter the U.S. within 180 days of visa issuance. The investor must then establish residency in the United States. Evidence of intent to reside includes opening bank accounts, obtaining a driver’s license, obtaining a social security number, paying state and federal income taxes, and renting or buying a home. A U.S. resident may work overseas if required based upon the nature of their business or profession. If you wish to obtain a U.S. Green Card but would like to work abroad, speak with us and we will provide you with the various options.
What is a regional center?
A regional center is a private or public economic unit designated by the United States Citizenship and Immigration Services (USCIS) with the goal of promoting economic growth in the United States.
The EB-5 Immigrant Investor Regional Center Program was introduced by Congress in 1992. The regional center program allows investors to benefit from a passive investment in a project sponsored by a regional center and take advantage of indirect job creation.
To receive designation, a regional center must file Form I-956 (Application for Regional Center Designation) with USCIS. As of October 25, 2021, there are 632 approved regional centers, the names of which along with their locations of operation and regional center ID numbers are posted on the USCIS website. Additionally, a regional center must file Form I-956 (Application for Approval of an Investment in a Commercial Enterprise) with USCIS to request approval of each particular investment offering through an associated new commercial enterprise.
While direct investment is possible for EB-5 applicants, the regional center route is preferred as a regional center takes the burden off the shoulders of investors. Applying through a regional center is less burdensome for investors as they will only be responsible for presenting their own source of funds documentation and personal information to USCIS. The regional center will provide all documentation including but not limited to the business plan and the job creation report to USCIS on behalf of the investor. Therefore, the EB-5 investor does not need to be actively involved in the management of the project through the regional center route.
Read our blog here to find out more about regional centers.
What are the job creation requirements of the EB-5 program?
The EB-5 Immigrant Investor Program requires that an EB-5 investor must create at least ten full-time jobs for qualifying employees with their investment of $800,000 in a new commercial enterprise (NCE).
The job creation requirements differ depending on whether the investor is applying directly or through a regional center. In a direct investment, an investor must directly create ten full-time positions. In a regional center investment, the new commercial enterprise can directly or indirectly create the required jobs, out of which up to 10% must be direct and 90% may be indirect jobs. Read our blog here to find out more about the job creation requirements of the EB-5 program.
When do I make my investment into the project?
Generally, you make your investment into the project immediately prior to filing your EB-5 application with USCIS. If you have limitations or problems with your funding sources, please speak with us, we may be able to obtain payment plans with certain projects. Thus, you could file your application with a deposit and make the remaining investment at a later time. Read our blog here to find out more about the investment timeline.
Is my investment guaranteed?
Neither the U.S. government nor the regional center hosting your chosen project can provide any guarantees. When the EB-5 program was implemented by the U.S. Congress in 1990, one of the key requirements of the program was that a “true investment” must take place, which according to relevant EB-5 statutes is defined as an investment that is “at risk” without guarantees or redemption rights. Although the investment must be “at risk,” there are certain steps that an investor may take to mitigate their risks, including by choosing a reputable regional center to host their investment. At The American Legal Center, we only recommend top regional centers with a track-record of excellence and that have repaid back all investors in a timely manner. Nevertheless, each investor should review all project documents to ensure they are financially comfortable with their project investment.
May I visit the project?
Yes, you may visit the project. Our office can coordinate a site visit for your chosen project. Depending on their availability, you may meet with directors of the regional center hosting your chosen project, and in some instances, you may also have the option of meeting with the project developers. We are here to ease your anxieties about the entire process and if it would help you to visit the project directly, we are happy to assist in coordinating this meeting.
How long must I keep my investment in the United States? When can I obtain the funds back?
You can generally set your expectation of remaining in the project for at least five years. The EB-5 program requires that your funds be invested for a certain lock-in period. After your conditions are removed in the I-829 phase, you are eligible to obtain your funds back. If you obtain your funds prior to the removal of conditions in the I-829 phase, you are at risk of losing your Green Card.
What if I change my mind about the process and wish to receive my investment back?
Generally, an investor is free to change their mind and obtain their $800,000 capital contribution back before the EB-5 petition is approved. It would be difficult to change your mind after you receive your I-526E approval because the immigration benefit will be considered as provided. If a client wishes to exit the process and obtain their capital back, we will facilitate to the extent possible, yet any fees paid are non-refundable.
What happens to my investment if the application is not approved?
If your application is denied, the capital investment of $800,000 will be returned to you within approximately 30 working days. Any administrative, sponsorship, legal, and consultancy fees will not be returned. Generally, if all documents are reviewed and cleared by our team, the chances of rejection are minimal. Please speak with us about rejection rates as they are highly uncommon from our offices in Dubai.
Must existing EB-5 applicants invest more upon an increase in the minimum required capital contribution?
No, pursuant to new legislation, namely the EB-5 Reform and Integrity Act (RIA), passed in March 2022, existing EB-5 investors are protected from future legislative changes to the program.
While it is likely that the $800,000 minimum investment threshold will eventually increase given automatic adjustments based on the cumulative annual percentage change in the unadjusted consumer price index for all urban consumers (i.e., inflation), existing EB-5 investors will be protected pursuant to the newly added grandfathering provision of the RIA. Therefore, if an investor has filed their petition under $800,000 rules and the minimum capital contribution is thereafter increased to $900,000, they will not be liable to invest an additional $100,000 and will be protected under the old rules. Read our blog here to find out more about the grandfathering provision of the RIA.
How do I prove the legitimate nature of the source of funds I will invest?
In addition to your personal background information, you must provide information showing that the investment funds are derived from a legitimate source. This financial background information varies on a case-by-case basis, but generally includes:
- five-year personal bank statements,
- documentation concerning the actual source (gift, inheritance, bank loan, etc.),
- proof of ownership in any businesses and business licenses (if applicable),
- tax returns (if any), and
- salary certificates / bonus letters (if applicable).
Every client’s source of funds documentation varies. During the initial complimentary consultation, we can prescribe a set of documents depending on your circumstances.
Can funds from a shareholder distribution be used for an EB-5 investment?
Yes, funds derived from a shareholder distribution may be used to satisfy the $800,000 minimum capital contribution requirement of the EB-5 Immigrant Investor Program. The EB-5 investor must demonstrate the following:
- distribution of dividends from the company in the form of bank statements,
- authorization from the company in the form of board resolutions,
- ownership of company shares in the form of share certificates and business organizational documents, and
- other supporting documentation including marketing materials and brochures of the company.
Read our blog here to find out about the documentation required to demonstrate the lawfulness of funds derived from a shareholder distribution.
Can funds from salary savings be used for an EB-5 investment?
Yes, funds derived from salary savings may be used to satisfy the $800,000 minimum capital contribution requirement of the EB-5 Immigrant Investor Program. The documents required include but are not limited to:
- tax returns (if applicable, based on the jurisdiction of the EB-5 applicant),
- letters from the EB-5 applicant’s employer(s) on company letterhead with contact details, confirming the following details: (a) dates of employment, (b) position(s) of the employee, (c) annual salary, and (d) bonuses received,
- paystubs / salary slips,
- employment contracts,
- personal bank statements for the past five years showing accumulation of salaries,
- business card of the investor, and
- CV / resume of the investor.
Read our blog here to find out about the documentation required to demonstrate the lawfulness of funds derived from a shareholder distribution.
Can gifted funds be used for the purpose of an EB-5 investment?
Yes, gifted funds may be used to satisfy the minimum capital contribution requirement of the EB-5 Immigrant Investor Program.
If the capital contribution for the purpose of an EB-5 investment is a gift received from a donor, the EB-5 investor must demonstrate that the source of funds of the donor used to provide the gift is lawful. Along with documentation showing that the source and path of funds are lawful, the application must include a gift affidavit, also known as a gift agreement, to the United States and Citizenship Services (USCIS). A properly drafted gift affidavit must state the following information:
- the names of both the donor and gift recipient,
- the relationship of the donor and recipient,
- the voluntary nature of the transaction,
- the gift amount (i.e., a portion or full amount of capital contribution and administrative fees),
- the irrevocable nature of the gift,
- a declaration from the donor that the gift will be placed in an “at risk” investment,
- declaration that there are no side deals, conditions, or understandings between the donor and the recipient, and
- the addresses and contact information of both the donor and the recipient. Additionally, both parties must sign the gift affidavit.
USCIS will examine the source of funds of the donor; therefore, all required information and documentation including but not limited to bank statements, salary certificates, bonus letters, dividend distribution letters, tax returns, and other financial documents must be included in the EB-5 application.