The EB-5 program was created by Congress in 1990 to stimulate the U.S. economy by creating jobs and capital investment by foreign investors. In order to qualify, an EB-5 investor must invest the required amount of capital ($1 million, or $500,000 if within a high-unemployment area or rural area) in a “new commercial enterprise” that will create at least 10 full-time jobs for U.S. workers. The full-time workers must work at least 35 hours a week, and the investor, spouse, and children may not be counted among the ten full-time employees.

The capital investment does not need to be in the form of cash. More broadly, capital investment includes cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the immigrant investor.

The “new commercial enterprise” must either be:

1) established after Nov. 29, 1990, or

2) established on or before Nov. 29, 1990 and

1. 1. purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
   2. expanded through the investment so that at least a 40% increase in the net worth or number of employees occurs. A commercial enterprise can be any lawful business, including a sole proprietorship, partnership, holding company, joint venture, corporation, business trust, or other business which may be publicly or privately owned.

How Do I Apply?

The EB-5 investor must file Form I-526, Immigrant Petition by Alien Entrepreneur, to show they are in the process of investing, or have already invested the required amount of capital. The investor must prove eligibility for the EB-5 program, that is, he or she must provide they have made the $500,000 or $1 million investment in the new commercial enterprise and that the investment came from a lawful source of funds. The investor must also provide evidence that the investment will lead to the creation of at least 10 full-time jobs. Additional evidence which must be provided at the time of filing Form I-526 includes the investor demonstrating he or she will be in policymaking or a managerial role at the investment project.

To summarize, the following must be proven when filing the Form I-526:

• Appropriate investment amount of $500,000 or $1 million has been made
• Capital investment was lawfully obtained
• New commercial enterprise has received or will receive the investment
• Creation of 10 full-time jobs in the U.S.
• Investor will be actively involved in new commercial enterprise, either in a managerial role or policymaking role

Can I Get a Green Gard if I invest under the EB-5 Program?

Under the EB-5 category, 10,000 visas are available annually to those who seek permanent resident status on the basis of investment in a new commercial enterprise and who otherwise meet the requirements of an EB-5 visa. No more than 7% of the total annual allocation of EB-5 visas available can come from one country. Most countries fail to reach their 7% allotment of visas each year; however, China currently has a backlog of applicants.

Once the I-526 petition is approved, the investor can file Form I-485, Application to Register Permanent Residence or Adjust Status. Upon the approval of the I-485, the investor and immediate family members (spouse and children under age 21) will be granted conditional permanent residence for two years. After that time, the investor can file Form I-829, Petition by an Entrepreneur to Remove Conditions. This form must be filed 90 days before the 2 year time period of the granting of the green card. If approved, the investor will receive a new green card without any conditions attached.

For more information about the EB-5 visa, contact a qualified immigration attorney.