Your Guide to the EB-5 Investor Visa: Costs, Processing Timeframes, and Application Essentials

What is the Purpose and Benefits of an EB-5 Visa?

The EB-5 visa, formally known as the employment-based, fifth preference investor visa, provides permanent residency to investors who meet specific criteria. The visa benefits not only the main applicant but also allows their spouse and unmarried children under the age of 21 to obtain green cards. Overseen by the U.S. Citizenship and Immigration Services' Immigrant Investor Program Office (IPO), the EB-5 program was established in 1990 to promote economic expansion by encouraging job creation and attracting foreign investments.

EB-5 Visa Processing Timeline Overview

Processing times for the EB-5 visa can differ greatly. The initial application, involving Form I-526, typically requires between 47 and 71 months to complete. After submitting this form, applicants must ascertain whether a visa slot is available; currently, there are no specific delays for EB-5 visa slots. For applicants living outside the U.S., the green card approval via consular processing usually takes between 4 to 6 months. For those residing in the U.S., the Adjustment of Status route can vary significantly, with processing times ranging from 7.5 to 45.5 months depending on the specific service center involved.

Visa Costs

The total expenditure for obtaining an EB-5 investor visa ranges from $4,020 to $4,900, depending on the applicant's location. Initially, all applicants must pay a fee of $11,160 to submit Form I-526, known as the “Immigrant Petition by Alien Entrepreneur.” Applicants outside the United States undergoing consular processing will incur an additional $345 for the visa application processing fee, bringing their total to $4,020, excluding the cost of a medical exam, which varies by country. Those applying from within the United States must pay $1,440 to file Form I-485, or the “Application to Register Permanent Residence or Adjust Status,” and an additional $85 for biometrics services, totaling $4,900. Navigating U.S. immigration requirements can often be intricate and bewildering.

To qualify for an EB-5 visa, applicants must satisfy two fundamental criteria:
1. Investment in the U.S. Business: The investment must meet or exceed the minimum amount specified by 8 CFR § 204.6.
2. Job Creation: The applicant must intend to create or preserve at least 10 full-time jobs that are available to U.S. workers.

Capital Investment Requirements

To be eligible for an EB-5 visa, the investment must be made into a business that was established after November 29, 1990. If the business was founded on or before this date, it must have undergone significant changes to qualify. This can be through a purchase that results in the business being considered a new commercial enterprise, or through a substantial restructuring or reorganization. Alternatively, the investment can qualify if it leads to at least a 40% increase in the net worth or number of employees of the business.

Business and Capital Investment Types for the EB-5 Visa

Investments must be made into for-profit companies in order to qualify for the EB-5 visa program. Acceptable types of business structures include:

1. Corporation
2. Joint venture
3. Business trust
4. Sole proprietorship
5. Holding company
6. Partnership
7. Any other publicly or privately owned entity

The capital investment for the EB-5 visa can be made in various forms, including:

1. Cash
2. Equipment
3. Inventory
4. Other tangible property
5. Secured indebtedness, with certain restrictions

The fair market value must be used to calculate the investment amount needed for the EB-5 visa, and it must also meet specific requirements depending on where the investment is made. The minimum investment required for petitions filed after November 21, 2019, is $1.8 million, unless the investment is undertaken in a Targeted Employment Area (TEA), which is defined as a rural or high unemployment area, in which case the minimum investment requirement is $900,000. The overall minimum investment for applications received prior to November 21, 2019, was $1 million; however, if a TEA was invested in, the minimum investment dropped to $500,000.

Job Creation Requirements
The job creation requirements of the EB-5 investment program are contingent upon the geographic location of the enterprise. Investors operating in regions designated as regional centers—areas targeted for fostering economic expansion—have the option to directly or indirectly satisfy the employment creation requirements for those enterprises. While indirect job creation arises from the firm's stimulation of broader economic activities, direct job creation happens when the enterprise hires employees directly. On the other hand, the investor must directly generate at least ten new employment if the company is located outside of a regional hub.

EB-5 Visa Program: Accommodations for Troubled Businesses

The EB-5 visa program offers particular accommodations for investments in "troubled businesses." A business qualifies as troubled if it has been operational for a minimum of two years and has experienced a net loss of at least 20% of its net worth in the 12 to 24 months before filing for the EB-5 application. These special provisions provide some flexibility regarding the program's investment and job creation criteria.

How to Apply for an EB-5 Investor Visa

Step 1: File the Initial Petition

To begin the process of securing an EB-5 investor visa, the applicant must first file Form I-526, Immigrant Petition by Alien Investor. This submission should include evidence that supports the following criteria:

1. The investment has been made in a for-profit business that meets the previously outlined eligibility requirements.
   2. The business is located in a Targeted Employment Area (TEA), if applicable.
   3. The applicant will assume a managerial role in the operation of the business.
   4. The business will create at least 10 new full-time jobs, as detailed in the job creation requirements.
   5. In cases of investing in a troubled business, the business will maintain its pre-investment employment levels for at least two years following the approval of the petition.

Submitting a Green Card Application After EB-5 Visa Approval

Step 2: Start the Green Card Application

Once the Form I-526 is approved, the applicant can proceed with the green card application, which varies based on their current residence.

For Applicants Abroad: Consular Processing
1. Complete Form DS-260, the Application for Immigrant Visa and Alien Registration.
2. Undergo a medical examination.
3. Attend an interview in the U.S. Embassy or Consulate, bringing all required documents.

For Applicants in the United States: Adjustment of Status
1. File Form I-485, Application to Register Permanent Residence or Adjust Status.
2. In many cases, attend an interview as part of the process.

Upon successful completion of these steps, the applicant and any dependent family members will receive a conditional green card valid for two years. This conditional status is part of the process to ensure that the investment and job creation requirements are met.

Removing Conditions on the Green Card

Step 3: Apply to Remove Conditions

After the two-year conditional period, the applicant must take action to remove the conditions on their green card. This involves filing Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. This form should be submitted within 90 days before the expiration of the conditional green card.

During this process, the applicant needs to provide documentation that verifies the ongoing status of the investment, such as:

1. The current number of employees at the business.
2.  The location of the business within its specific region.
3.  The total amount of capital that has been continuously invested in the business.

If the conditions are successfully removed, the applicant will be granted lawful permanent residency. This status provides a green card valid for 10 years, which will then need to be renewed to maintain lawful permanent resident status.