As it currently stands, parts of the EB-5 program, the EB-5 “set-aside” program, is the only category that is current under the visa bulletin for all nationalities, creating an opportunity to file for a green card if you qualify without having to wait for progression of the visa bulletin. At Reddy Neumann Brown, we have done multiple videos to discuss the EB-5 program and have seen some common questions that people have. So, to celebrate the ending of FY 2024 and the start of FY 2025 on October 1, 2024, here are 25 frequently asked questions about the EB-5 program.

• What is the EB-5 Immigrant Investor Program?

The EB-5 program allows foreign nationals to obtain U.S. permanent residency (Green Cards) through an investment in a U.S. business that creates jobs. It is designed to encourage foreign investment and economic growth in the United States. U.S. Citizenship and Immigration Services (USCIS) administer the EB-5 program.

• What is the difference between “reserved” and “unreserved” EB-5 visas on the visa bulletin?

In 2022,  Congress passed the EB-5 Reform and Integrity Act of 2022 (“RIA”). This law did a complete overhaul of the EB-5 program. In the past, EB-5 was segregated by regional center and non-regional center investments. However, the RIA consolidated regional center and non-regional center investments, and pulled out certain “reserved” visa categories that receive a specific amount of EB-5 visas each year.

“Reserved” EB-5 visas are set aside for certain categories of projects, such as those in rural (20% of visas) or high-unemployment areas (10% of visas), or infrastructure projects (2%) of visas. These reserved visas may offer a shorter wait time due to less demand, and this category is “current” on the visa bulletin as of this article for all nationalities. “Unreserved” visas are those that apply to all other types of EB-5 projects not fitting these criteria, which can sometimes face longer processing times due to higher demand. Notably, there is a backlog of unreserved China and India EB-5.

• What is the minimum investment required for the EB-5 visa?

The minimum investment is $1,050,000 for projects located in non-Targeted Employment Areas (TEAs). However, if the project is located in a TEA—predominantly rural areas or areas of high unemployment—the minimum investment is $800,000.

• Can I file my I-485 concurrently with my EB-5 petition?

Yes, if a visa number is available (which it is for all countries under the “reserved” category as of this article), you may file Form I-485 (Application to Register Permanent Residence or Adjust Status) concurrently with your EB-5 petition. Concurrent filing allows you to apply for work (EAD) and travel (Advance Parole) authorization while your EB-5 petition is processed.

• What are the benefits of concurrent filing with an EB-5 petition?

Concurrent filing allows you to stay in the U.S. legally and apply for interim benefits, such as work and travel authorization, while your EB-5 petition is being processed. This is especially helpful for those who are already in the U.S. on other nonimmigrant visas, as it helps maintain lawful status during the transition to permanent residency. By concurrently filing an I-485, you are not required to maintain your nonimmigrant status, and will be lawfully present based on the pending I-485. You can work pursuant to your EAD.

 How do I apply for an EB-5 visa?

To apply, you must file Form I-526 (Immigrant Petition by Alien Investor) with USCIS. This petition demonstrates that you have made a qualifying investment, that the funds were legally obtained (source of funds), and that the project will create at least 10 jobs. In most circumstances, you can concurrently file for your I-485 if you are in the US and maintaining a nonimmigrant status. If not, once the I-526 is approved, you can apply for conditional permanent residency (Green Card) through consular processing if you are abroad.

• What is the “source of funds,” and how do I prove it?

When it comes to filing an EB-5, one of the most critical aspects of the I-526 is the source of funds brief. The “source of funds” requirement ensures that the money you are investing in the EB-5 program was obtained legally. Investors must provide documentation, such as tax returns, bank statements, property sale records, or business earnings, to prove the lawful origin of their investment funds.

• Can my EB-5 investment funds come from a loan or gift?

Yes, funds for an EB-5 investment can come from loans or gifts, but they must be lawfully obtained. In the case of a loan, the funds must be secured by the investor’s personal assets, not the EB-5 project itself. The loans can be secured or unsecured, but you have to show they are legally obtained, such as from a bank, and the fair market value of the property being used as collateral if a secured loan. For gifted funds, documentation proving the gift and its legal origin is required. For example, if you are going to get a funds gift from your parents, your source of funds brief must address where your parents obtained the funds to show that it was legally obtained prior to the gift.

• Can I use partial investments?

It is possible to invest with part of the required investment amount. However, the remaining funds have to be identified, and you have to show that you are in the process of investing and transferring funds. This can be helpful when your funds are in your home country and that country has transfer out limits like India does.

• What does it mean that EB-5 investment funds must be “at risk”?

All EB-5 investments must be “at risk.” The requirement that funds be “at risk” means that the investment must involve some degree of risk of loss and potential for gain. Investors cannot simply place money in a guaranteed account. The investment must be subject to the normal risks of business or project activities in the market. This ensures the investor is genuinely participating in U.S. economic development. To prove that your investment is “at risk,” you must submit documentation that shows your funds are actively being invested in a job-creating project or business. This can include contracts, operating agreements, or financial statements from the project, and there should be no guaranteed return of the principal.

• What are Regional Centers in the EB-5 program?

A Regional Center is an economic entity designated by USCIS that pools capital from multiple EB-5 investors into projects that create jobs. Regional Center investments allow investors to count both direct and indirect jobs, which makes it easier to meet the EB-5 job creation requirement. Regional Centers typically provide a more passive investment opportunity. Approved Regional Centers will have an approved I-956, and a list of approved Regional Centers can be found here.

• What is the difference between a Regional Center investment and a direct investment?

A Regional Center investment allows you to count both direct and indirect job creation, which can make meeting the job creation requirement easier. These projects typically require passive investment. Direct investments, on the other hand, require you to create 10 direct jobs and often involve more hands-on management.

• How many jobs must my investment create?

Your EB-5 investment must create or preserve at least 10 full-time jobs for U.S. workers. These full time jobs must be given to U.S. citizens, lawful permanent residents, asylees, or refugees. This cannot include the investor, their family members, or nonimmigrants (such as H-1B or TN visa holders). These jobs must be created within two years of the investor receiving conditional permanent residency (Green Card).

• What is the difference between direct and indirect job creation in EB-5?

Direct job creation refers to jobs that are directly created by the EB-5 investor’s project or business, such as employees hired to work in a new restaurant. Indirect job creation occurs as a result of the economic activity generated by the project, such as jobs created in supplier industries or construction work. Indirect jobs are only counted when investing through a Regional Center.

• What happens if my child turns 21 during the EB-5 process?

The Child Status Protection Act (CSPA) helps protect children from “aging out” of the EB-5 process. The CSPA allows a child’s age to be “frozen” at the time the I-526 petition is filed, meaning they may still qualify as a dependent even if they turn 21 before receiving a Green Card.

• What happens after my EB-5 petition is approved?

Once your Form I-526 is approved, you will either adjust your status (if already in the U.S.) or apply for an immigrant visa through consular processing (if abroad). After approval, you and your family members will receive conditional permanent residency for two years.

• What is conditional permanent residency, and how do I remove the conditions?

Conditional permanent residency is granted for two years to EB-5 investors and their family members. To remove the conditions and obtain full permanent residency, you must file Form I-829 within 90 days before the two-year period ends. You must demonstrate that your investment remained in place and that the required 10 jobs were created.

• How long will the EB-5 process take?

Processing times vary based on factors like country of origin and visa availability, and of course USCIS.

Assuming you concurrently file the I-526, I-485, and the EAD/AP and the Regional Center has an approved I-956F, recent trends in processing times are (although not guaranteed and can fluctuate):

EAD/AP Approval: 3-6 months (they can separate out the AP in some isntances and that can come later)

I-526 Approval: We have seen as quick as 6-8 months if investing in a rural project or 12-16 months if investing in a high unemployment area.

I-485 Approval: 6-8 months after I-526 is approved

I-824 Approval: The law requires 120 days, but they have processed longer. Good path for litigation if beyond 120 days

• Can my family members also get Green Cards through my EB-5 investment?

Yes, your spouse and unmarried children under 21 can obtain conditional Green Cards as your dependents. They must also remove the conditions after two years, just like the primary investor. Your spouse and children that file for an I-485 based on your concurrently filed I-526, pending I-526, or approved I-526 can also qualify for the EAD and AP.

• What are the risks of investing in an EB-5 project?

EB-5 investments carry both financial and immigration risks. Financially, there is no guarantee of a return on investment or that the project will succeed. From an immigration perspective, if the project does not meet the job creation requirements, you may not be able to remove the conditions on your Green Card. Conducting thorough due diligence on any project is essential to minimize risk.

• How do I conduct due diligence on an EB-5 project?

Due diligence involves carefully researching the project, the Regional Center (if applicable), and the project’s track record. Investors should review the project’s business plan, financials, job creation methodology, and legal structure. Consulting with legal and financial advisors is highly recommended to ensure the project meets both EB-5 requirements and your investment goals. Consider someone with the proper SEC licensing that can discuss the financial side of the EB-5.

• What is the difference between Form I-526 and Form I-829?

Form I-526 is the initial petition that demonstrates your qualifying investment and job creation plan. With an approved (or pending if concurrently filed) I-526, you can seek your conditional green card. The Form I-829 is filed after two years to remove the conditions on your Green Card. The I-829 must show that the investment was sustained and that the required jobs were created.

• How long must my investment be sustained?

This answer will address POST RIA enactment investments as the answer is different for those that invested and filed pre-RIA enactment.

This is a two part answer. First, there is the immigration/legal requirement. For post-RIA investments, the funds must be at risk for at least two years and satisfy all other EB-5 requirements as it pertains to the funds and how they are used. However, the second part of this is the contractual requirement. If you invest in a Regional Center, your contract with the Regional Center will dictate how long you must keep your funds invested in the project prior to pulling it. This means, that it can be no less than two years based on the law, but it can be longer than two years based on your contract.

• What happens if the project I invested in fails?

At the outset it is important to do due diligence to try to avoid this risk, however, no investment is 100%. In the RIA, Congress added a provision that allows good faith investors to potentially retain eligibility if there was an approved regional center investment. Further, there may exist avenues to re-deploy your funds to a new investment.

• How do I maintain my permanent residency after getting an EB-5 Green Card?

Once you become a permanent resident, you must reside in the U.S. for at least half of the time over any given year to maintain your Green Card status. Failing to do so may lead to loss of residency status. You may apply for U.S. citizenship after holding a Green Card for five years, provided you meet all other eligibility requirements.

If you are interested in the EB-5 program, contact Steven Brown from our office.

Reddy Neumann Brown PC located in Houston, Texas, has been serving the business community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based and investor-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By: Steven Brown

Steven Brown is a Partner at Reddy Neumann Brown PC where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.