EB-5 USA Green Card Visa is an excellent American Permanent Residency (PR) opportunity for individuals with a qualifying net worth, and also their dependent families. It permits the applicant to immigrate to the nation through US Green Card with dependent spouse and children below 21 years.
The overall application processing time for the EB-5 Visa to the US is around one year. The visa is called EB-5 Visa as it is an employment based preference immigration category that requires the applicant to be involved with a new commercial enterprise in the US which benefits the American economy, by creating or supporting at least 10 full time - direct or indirect - jobs.
While the applicant may not be involved in day-to-day operations of the invested commercial enterprise, he must have at least a policy level role. If the person is investing in an existing commercial enterprise that business must have been established after November 29, 1990.
Normally, an annual quota of 10,000 visas is identified under the EB-5 Visa category every year. Under a pilot program, at least 3000 of this quota have been set aside for designated regional centers for the EB-5 Visa.
Post approval of the EB-5 application, a conditional Green Card is issued to the applicant (and spouse and dependent children) for a period of two years. After 21 months of holding the conditional EB-5 Green Card, the applicant applies for removal of condition by providing evidence that the investment lead to creation of 10 US jobs during the conditional status. Once proven, the condition is removed and the applicant (and spouse and dependent children) get Permanent Green Card. He can apply for US citizenship after 5 years.
Qualifying Immigrants under USA EB-5 Immigration Visa
The applicant must invest at least USD 10, 00,000 or at least USD 500,000 in a new commercial enterprise, if investing in a "Target employment area".
The new commercial enterprise may have multiple owners, including those not applying for the EB-5 Visa, if:
- The source(s) of all capital is identified and,
- All invested capital source of funds, if derived through lawful means.
EB-5 USA Green Card Visa - Stage-wise Application Process
- You sign the subscription agreement as an investor and pay the administrative fee into the Escrow account. The administrative fee differs from project to project basis but normally ranges between USD 40,000 to USD 75,000. Please note that application of investment funds (USD 500,000 or 10, 00,000) is done in the development of the regional center, while the administrative fee is charged by the EB-5 Regional Center. The administrative fee is charged to meet expenses related to marketing and promotion of the project. This fee is refunded if the I-526 application is refused.
- In addition to the investment funds and administrative fee, the EB-5 investor must also budget for attorney fee of USD 15000 to USD 20,000 for managing both I-526 and I-829 stages of EB-5 visa. The investor applicant must also budget for USCIS (United States Citizenship and Immigration Service) application fee for I-526 petition and I-829 petition. The attorney and application fee is non-refundable.
- Thus, in addition to investment funds, the EB-5 investor applicant must keep an expense of around USD 65,000-80,000 towards administrative fee, attorney fee and application fee at various stages. Accept for USCIS application fee(s), the other two costs are variable and may differ amongst different designated regional centers.
- You deposit the USD 500,000/10,00,000 into the Bank Escrow account. An escrow account is an agreement made under contractual terms and conditions between the transacting parties, under which an independent reliable third party gets and gives out money and/or documents for the involved parties, even as the timing of such payouts by the third party is based on the execution of contractually-agreed terms and conditions by the involved parties. A regional center cannot transfer the investor funds into the Limited Partnership's account until the I-526 petition is approved. This is because the EB-5 prohibits the use of money for regional center project because under the EB-5 law, the investor's money cannot be used unless it has been proved that it is from lawful source. Approval of I-526 accepts the assertion of the investor that he has invested from lawful source/. It also protects the investor interests since approval of I-526 will lead to issuance of his conditional green card under EB-5 visa.
- USCIS takes 3-6 months to take decision on the I-526 petition. Please note that the application processing time frames are always subject to change without notice.
- If I-526 is approved, then the deposit of 500,000/10, 00,000 is released to regional center partnership account. If it is refused / disapproved, the deposit of 500,000/10, 00,000 is returned to your (investors) account.
- You, the investor, file an application for Immigrant Visa or adjustment of Status. Normally, if outside India, this application will be filed at the nearest US Embassy. Post filing of the application at US Embassy, additional processing time 2-6 months is likely.
- You will be interviewed at US Embassy and post approval, issued EB-5 conditional Green Card.
- You land in USA on EB-5 Conditional Green Card.
- 21 months from date of admission into USA on Conditional Green Card, investor submits the EB-5 I-829 petition to USCIS for change of status to Unconditional permanent Green Card. Decision on removing conditions is normally taken within 6 months of submission of I-829 petition and conditions removed. If application for I-829 is accepted, then permanent Green Card is dispatched to the address of the applicant.
- If I-829 petition is denied, the applicant files an appeal.
EB-5 USA Green Card Visa -- Key Features, Qualifying Criteria
While following act as a guide towards qualifying criteria for the EB-5 Visa application, the applicable features and criteria may differ from case to case basis.
- The applicant must meet definition of an accredited investor. An Accredited Investor means the investor: (i) has a net worth (or joint net worth with the Subscriber's spouse) of at least $1 million; or (ii) had an annual gross income in each of the last two years of at least $200,000, and has expected gross income in the current year of at least $200,000; or (iii) otherwise meets the requirements for an Accredited Investor as defined in the regulations.
- The enterprise/business in which the applicant is investing must have been formed after November 29, 1990. The EB-5 investment in businesses established before this date can also be considered, provided the investment by the applicant for the EB-5 Green Card 'expands' or "restructures" the existing business.
- The degree of "restructuring" or "reorganization" that will qualify under the EB-5 is not defined and key determinant will be whether or not 10 new jobs have been created.
- As regards the "expansion" of commercial enterprise, only an expansion resulting in an increase of at least 40% in business net worth, or in the number of business employees could be a considered a qualifying EB-5 definition. This may mean that a qualifying EB-5 investor expanding the business may be required to employ more than 10 employees, if pre-expansion number of employees was more than 25.
- All above complications can normally be avoided if the investor chooses a designated regional center as a route to make the application under the EB-5 Visa category. It centers responsibility to get the project pre-approved as regards definitions of commercial enterprise and also ensure that the requirement of at least 10 new jobs - against the applicants' visa is met. He can do so by making an investment in a designated regional centre having an approved project in a target employment area (TEA).
- The business/enterprise must be for-profit and be at risk. It excludes non-commercial activity, like owning and running a personal residence or non-for profit business. The form of ownership may include sole proprietorships, partnerships (Limited or General), holding companies, joint ventures, corporations, business trusts, or any other form of permitted business entity that is publically or privately owned.
- Eb-5 investors only need to show that they have invested in a commercial enterprise and do not need to prove that they have established it.
- The commercial enterprise can identify overall number of direct and indirect jobs that will be created and then divide them in the pool of EB-5 investor applicants. However, each investor much identify, individually, the source of the invested funds and also that they have been acquired legitimately.
- The applicant must be involved in management of the commercial enterprise, through policy formulation.
- Usually, the capital should be fully invested (contributed) and at risk in the commercial enterprise at the time when I-526 petition is filed. The capital contribution is defined as cash or cash equivalents, equipment, inventory or other tangible property. A signed promissory note that is secured by applicant's personal assets constitutes capital contribution. All capital is valued as per fair market value of USD at the time of deposit.
- The commercial enterprise must contribute to the American economy. Normally, this would mean that enterprise must be in legitimate business and meet regulatory requirements related to foreign investments.
- The commercial enterprise must employ 10 full time employee minimum - not counting investor applicant, spouse or their children and non-immigrants - and these employees must be US citizens or permanent residents or others who are lawfully permitted to work in the US. Full time requires a minimum of 35 hours per week. Two or more employees can share one full time position. The business plan should indicate the approximate dates around which - during the conditional visa issuance period - the jobs will be created.
- The EB-5 project may include investment in a troubled US business. Such a business would normally be in existence for at least 2 years, would have incurred a net loss during 12 or 24 month period before the I-526 petition is filed, even as the loss should at least be 20% of the businesses net worth, before the loss. The business should continue during the conditional status period and maintain the number of jobs that the business employed during the pre-investment period.
- The commercial enterprise may be located in a targeted employment area (TEA)and thereby qualify to accept investment of USD 500,000. The targeted employment area is notified by states and is by definition a rural area or area that has experienced high unemployment rate of at least 150% of the national average. Usually, the designated regional center will provide, to the investor, certification from the state confirming the area to be the TEA.