Who Qualifies For An EB-5 Investor Visa

The EB-5 Investor Visa program offers a unique path to U.S. permanent residence through investment and by investing capital into the economy of the country and participating in a business venture, you can potentially secure a green card. This guide will explain the details, qualifications, and investment requirements.

Understanding The Program

It is also known as the fifth preference immigrant visa and was designed to attract foreign investors who contribute to U.S. economic growth. It provides a pathway to a green card without requiring employment with a U.S. employer, focusing instead on investment in a new business enterprise.

Minimum Investment Requirements

To qualify for the EB-5 Investor Visa, you must meet specific investment thresholds, which have recently changed. As of early 2022:

• $800,000 for investments in targeted economic areas (TEAs) or rural locations.
• $1,050,000 for investments in non-TEA or non-rural areas.

These investments must be made in a new commercial enterprise in the U.S.

Annual Visa Limits

The EB-5 program has an annual limit of 10,000 visas, with country-specific limits. If demand exceeds these limits, applicants are placed on a waiting list based on their “priority date” (the date they filed their initial application). Increased demand from countries like China, Vietnam, and India has sometimes led to waiting lists. As of early 2022, there was no wait for regular EB-5 applicants, but regional center investment visas were unavailable.

The Importance of Legal Counsel

Navigating the EB-5 visa process can be complex and costly. It’s strongly recommended to seek assistance from experienced immigration attorneys. The EB-5 category has strict eligibility criteria, making legal guidance crucial for maximizing success and avoiding financial losses. Investments are typically made before applying for the green card, so failing in your initial attempt can have significant consequences.

Pros and Cons of the EB-5 Green Card

Before pursuing the EB-5 visa, consider its advantages and limitations:

Advantages:

• Conditional Green Card: Initially valid for two years, requiring proof that the business will generate the required jobs within this period.
• No Business Experience Required: Focus is on the investment itself, not on the investor’s business background.
• Choice of Business Location: Flexibility to choose any U.S. location for the business.
• Post-Green Card Freedom: After obtaining the unconditional green card, investors can work for any employer or not work at all.
• Family Eligibility: Spouses and unmarried children under 21 can also obtain green cards.
• Path to Citizenship: After maintaining a green card for five years and residing continuously in the U.S., investors can apply for citizenship.

Limitations:

• Conditional Status: Initial green card is conditional and dependent on job creation within two years.
• Strict Eligibility Requirements: The EB-5 visa has stringent criteria, leading some to consider alternative visa categories.
• Active Involvement: Investors must actively participate in the business, either in a managerial or policy-making role.

Pathways to an EB-5 Visa

There are two primary ways to obtain an EB-5 visa:

Regional Center Investment

Many investors choose to invest in USCIS-designated regional centers that manage businesses and simplify the EB-5 application process. However, due diligence is essential as not all regional centers deliver as promised.

Direct Investment

For a more hands-on approach, direct investment in a new or restructured U.S. business is an option. Direct investors must meet higher investment thresholds and actively engage in the business, giving them more control over their investments.

Proven Source of Investment Funds

Investors must demonstrate the lawful source of their investment funds, which can come from salary, investment income, asset sales, gifts, or inheritances. Funds can include cash equivalents, certificates of deposit, loans, and promissory notes, as well as the value of equipment, inventory, or tangible property invested in the business.

Job Creation and Active Involvement

The business must employ at least ten full-time workers, excluding independent contractors, benefiting the U.S. economy. Full-time employment is defined as at least 35 hours per week. Regional center investments can include “indirect” jobs created by businesses serving the main enterprise.

Investors must actively participate in managing or forming policies for the business. While passive investments are common in regional centers, direct investors must take on an active role.

Requirement for a New Commercial Enterprise

Direct investors must invest in a new commercial enterprise, which can involve creating a new business, purchasing a business started after November 29, 1990, or acquiring and restructuring a troubled business. Specific requirements apply to each scenario, including job creation and investment levels.

Potential risks associated with investing in an EB-5 project

Investing in an EB-5 project carries several potential risks that investors should carefully consider before proceeding. These risks can be broadly categorized into financial risks and immigration risks.

Financial Risks

• Loss of Capital: The EB-5 investment is not guaranteed, meaning investors could lose their entire investment. The minimum amounts required are significant—$800,000 in Targeted Employment Areas (TEAs) and $1,050,000 elsewhere—without assurance of capital recovery.
• Low Returns on Investment: While some projects may promise returns, the actual financial gains from EB-5 investments can be minimal. For instance, loan-based models often yield returns of only 1-2%, while equity investments depend heavily on the project’s success.
• Project Viability: The success of an EB-5 investment is closely tied to the project’s overall viability. Factors such as economic conditions, mismanagement, or unforeseen events can jeopardize the project’s success and the investor’s capital.
• Job Creation Requirement: Investors must ensure that their capital creates at least 10 full-time jobs for U.S. workers. Failure to meet this requirement can lead to loss of eligibility for the EB-5 visa.
• Dependency on EB-5 Capital: Some projects may be overly reliant on securing EB-5 funding to proceed. If the necessary capital is not raised, these projects may fail, leading to both financial losses and immigration complications.

Immigration Risks

The EB-5 Investor Visa program offers a valuable opportunity for individuals seeking U.S. permanent residence through investment. It provides both advantages and limitations that must be carefully considered.

To navigate the complexities of this program, diligence, legal counsel, and a clear understanding of the investment requirements are essential. Investors must choose between regional centers and direct investments, ensure their funds are lawfully sourced, and actively participate in the business. With the potential for both conditional and later unconditional green cards, the EB-5 program offers a promising pathway to achieving the American dream.

How Law and Visas Can Help?

At Law and Visas, our team of expert immigration consultants is here to make your travel to the United States straightforward and successful. Whether you’re applying for an E-2 Treaty Investor Visa or O-1 Visa, we handle every step—from preparing your application to gathering the required documents.

Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.

Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. Call us today at +234 812 5505 986 to learn how we can assist you.