EB-5 Process Explained [A Step-by-Step Guide]

EB-5 Process

Getting approved for an EB-5 visa can literally change your life.

 

Through the EB-5 process, a foreign investor can become a lawful permanent resident and take the next step to U.S. citizenship.

 

With that comes access to United States schools, a better life for you and your children, and many opportunities for financial success.

 

That said, the EB-5 process has many steps that must be carefully followed.

 

Without a proper understanding, the EB-5 process can become confusing and challenging.

 

This step-by-step guide was designed to give you an understanding of the EB-5 process from start to finish.

 

Once you finish this article, you will know the important aspects of the EB-5 process, from the time you hire an immigration attorney to the time you apply for U.S. citizenship.

Roadmap of what we will Cover:

 

Quick Overview of the EB-5 Visa

 

Step 1. Consult with an Immigration Attorney

 

Step 2. Select a Business or Project to Invest In

 

Step 3. Get A Comprehensive Business Plan

 

Step 4. Invest Your Funds into the New Commercial Enterprise

 

Step 5. Prepare and File the Form I-526

 

Step 6. USCIS Gives a Response

 

Step 7. Wait for Your Priority Date to Become Current (Nationals of Mainland China)

 

Step 8. Adjustment of Status OR Consular Processing

 

Step 9. 2 Year Period of Conditional Lawful Permanent Residency

 

Step 10. Preparing and Filing Form I-829

 

Step 11. Apply for Naturalization to Become a U.S. Citizen (Optional)

 

Lets get started…

 

As a quick overview, lets go over the basics of the EB-5 visa:

 

  • The EB-5 visa is an investment based immigrant visa.
  • Successful applicants can become U.S. lawful permanent residents, based on their investment in a U.S. business.
  • Investors are required to invest a minimum of $900,000 or $1,800,000 in a U.S. business (depending on the location of the business).
  • The investment must lead to the creation of 10 full-time jobs for U.S. workers.
  • The investment must be at-risk (meaning that the investment must be subject to either gain or loss).
  • The source of the investor’s funds must be lawful.

 

For a complete explanation of the EB-5 visa, see here:  EB-5 Visa Guide [30 Most Important Questions Answered]

 

Now, back to the EB-5 Process…

 

We’re covering the main stages of the EB-5 process as well as many of the little things you won’t see other EB-5 guides discuss.

 

Lets go…

 

Step 1 of the EB-5 Process 

 

Before you do Anything Consult with an Immigration Attorney that has Experience with the EB-5 visa.

 

Your immigration attorney is crucial to the success of you EB-5 application. They will:

 

  • guide you through the entire EB-5 process
  • determine which investment option best meets the immigration requirements of the EB-5 visa
  • plan the best way to structure your source of funds
  • instruct you on which documents to provide for them to include in your EB-5 petition
  • advise you on which locations qualify as a TEA (targeted employment area) which can qualify for the reduced investment amount of $900,000
  • Along with many other benefits

 

You may already know of all the benefits of consulting with an experienced attorney. But, what I want to draw your attention to is the fact that speaking with an attorney is the very first step you should take.

 

Here’s why:

 

  • An immigration attorney can help you determine whether an EB-5 visa is the right option for you, based on your unique situation.
  • People often have interest in the EB-5 visa because someone they know got a green card through the EB-5 process. Or they may have read something about the EB-5 program and it sounds interesting to them.
  • But by consulting with an attorney, you may likely discover that there’s a much easier and faster way to meet your immigration goals.
  • You wont figure this out until you consult with an immigration attorney that can go over all your other options before deciding on an EB-5 visa.
  • Also, most immigration attorneys offer a FREE initial consultation. So there’s no reason not to get an attorney involved early on.
  • If you still need another reason to start off the EB-5 process by contacting an EB-5 attorney, know this:
  • most immigration attorneys bill on a flat-fee basis.
  • This means that they will charge you a set price to handle your EB-5 application.
  • WHY NOT get more value for your money. Start benefiting from an attorney’s advice as soon as possible (its probably going to cost you the same amount either way).

Step 2 of the EB-5 Process 

 

Select a Business or Project to Invest In

 

Now that you have an attorney, its time to determine where you will invest your funds.

 

The EB-5 program allows you to invest by making a direct investment or by investing in a regional center.

 

Examples of direct investments are starting a new business, purchasing an existing business, or investing in an existing business.

 

Regional centers are businesses designated by the United States Citizenship and Immigration Services. They gather capital from many EB-5 investors to develop large projects like hotels and resorts.

 

If you want to learn more about the difference between regional centers and direct investments, check here: EB-5 Visa Guide [30 Most Important Questions Answered]

 

Selecting the right investment is a critical step in the EB-5 process. You should do extensive research to make sure that you’re picking the best investment to suit your needs.

 

Keep in mind: Your immigration attorney is not your investment advisor. They should not provide you with investment advice unless it pertains to the immigration aspects of your investment.

 

If you would like professional investment advice, you can work with a Registered Investment Advisor or a Broker/Dealer. Be sure to confirm that your advisor has experience with EB-5 investments.

 

There are some differences between these two types of advisors:

 

  • Registered investment advisors charge you for providing investment advice.
  • Broker/dealers usually collect a finders fee from the project that you invest in.
  • Both of these types of advisors are regulated extensively. You can use the Finra BrokerCheck website to get a lot of information on different advisors. This resource will show you how long they’ve been licensed and which exams they’ve taken and passed.

 

Once you narrow down your choices for what to invest in, run these choices by your immigration attorney. They will tell you which investment options best meet the EB-5 immigration requirements.

 

Remember, your investment must create 10 full-time jobs for U.S. workers.

 

If the business you plan to invest in is projected to create 40 jobs and there are 4 EB-5 investors, if one of the jobs isn't created, one investor isn't getting their visa.

 

Step 3 of the EB-5 Process

 

Get A Comprehensive Business Plan

 

Now that you’ve hired an immigration attorney and selected a business to invest in, its time to get your comprehensive business plan.

 

Make sure to work with an business plan writer that has experience preparing EB-5 business plans. Your immigration attorney will help you select an appropriate company.

 

When you apply for an EB-5 visa, you have to submit a comprehensive business plan.

 

Your business plan will show the United States Citizenship and Immigration Services, the following:

 

  • what type of business you will be investing in
  • how much money you will be investing in the business
  • how many jobs you are projecting to create
  • when your jobs are projected to be created
  • how your funds will be spent
  • along with a host of other details

 

An EB-5 business plan is different that an ordinary business plan. It must be compliant with the precedent EB-5 case: Matter of Ho 

 

Don’t worry about the details.

 

An experienced EB-5 business plan writer will know what to do. If there are deficiencies in the business plan, your immigration attorney should be able to spot them and have them corrected before you file your application.

 

Important Note: If you are investing in a regional center, they will usually provide you with a comprehensive business plan.

Step 4 of the EB-5 Process

 

Invest Your Funds into the New Commercial Enterprise

 

Now that you’ve selected a project to invest in and your business plan is complete, its time to invest your funds into the new commercial enterprise.

 

Keep in mind that you are not obligated to actually invest the funds at this point.

 

The EB-5 visa requirements state that at the time of I-526 filing, you are required to provide evidence that you have invested or are actively in the process of investing your capital into the new commercial enterprise.

 

This means that you can transfer the funds into an escrow account. You can then make the release of the funds to the new commercial enterprise conditional on I-526 approval and visa issuance.

 

But, evidence of your mere intent to invest is not enough. Evidence of future arrangements to invest that have no binding present commitment will also not work.

Step 5 of the EB-5 Process

 

Prepare and File the Form I-526 

 

Now we’re getting to the heart of the EB-5 process.

 

Your attorney has likely been working on this step since you hired him/her. Now that you’ve picked your investment and your business plan is ready, preparing and filing the Form I-526 is the main focus.

 

The Form I-526 is the Immigrant Petition for Alien Entrepreneur.

 

  • This is the initial Form that your attorney will file on your behalf to USCIS.
  • Upon approval of the Form I-526, you qualify to apply to become a Conditional Lawful Permanent Resident.
  • As a conditional lawful permanent resident, you have the same rights and privileges as any other lawful permanent resident with one exception: your lawful permanent resident status is only valid for 2 years.
  • The point of this conditional status is that USCIS is giving you a period of 2 years to fully comply with the requirements of the EB-5 program.
  • During this 2 year period, you are to create 10 full-time jobs for U.S. workers. You are also required to keep your capital invested in the EB-5 project.

 

Within your I-526 petition, you will include many documents including:

 

Documentation proving who you are

  • copy of your passport
  • your resume
  • copy of your social security card if you have one
  • copy of your marriage certificate if you have one
  • copy of your diplomas and professional degrees

Documentation Relating to the Business

  • Your comprehensive business plan
  • Articles of Incorporation (for corporation) or Articles of Organization (for LLC)
  • Form I-9 for jobs already created

Documentation Relating to the Source and Path of Funds

  • This documentation will vary quite a bit depending on how you derive your source of funds.
  • For a more detailed breakdown of some of the documents to include in your source of funds section, check the ‘Source of Funds’ section of: EB-5 Visa Guide [30 Most Important Questions Answered]
  • To give you an idea of some of the documentation that will be included:
  • Individual tax returns for the last 5 years
  • Bank statements from your personal bank account before and after your investment funds are transferred to the project you are investing in.
  • If your investment funds are coming from the sale of a property, you will include the purchase and sale agreement, a letter verifying the terms of the sale, and many other documents.
  • If your investment funds are coming from ownership of a business, you will include the tax returns of the business over the last several years, the business’s balance sheets, along with many other documents.
  • If your investment funds are coming from a gift, you will include a letter from the person gifting the funds attesting to the amount of the gift, any conditions associated with the gift, and other important details. You will also include documentation demonstrating how the person gifting the funds obtained the funds lawfully.

 

NOTE: The above list is not a complete list of the documents needed. There are several other documents that must be included in your EB-5 petition.

 

Once you compile all this documentation, your attorney will organize it, and file the completed Form I-526 with USCIS.

 

USCIS takes on average about 18 months to process an I-526 application. 

 

(I know, its a really long time, but we’re hoping and expecting that this timeframe will improve in the future)

Step 6 of the EB-5 Process

 

USCIS Gives a Response

 

Upon reviewing your application USCIS can issue an Approval, a Request for Evidence, a Notice of Intent to Deny, or a Denial.

 

Approval: Congratulations! USCIS has determined that your I-526 petition meets the requirements. Its now time to move to Step 6.

 

Request for Evidence: Not to worry, although not as ideal as an approval, Requests for Evidence (or RFEs) are very common.

 

This just means that USCIS has a question about your application and they want more evidence to clarify something.

 

If you get an RFE, your attorney should prepare a response for you. The response should  provide documentation to answer whatever question USCIS is asking.

 

Assuming that USCIS is satisfied with the additional evidence, they will likely issue an approval.

 

Notice of Intent to Deny: Just as is sounds, Notices of Intent to Deny (or NOIDs) are not good.

 

This means that USCIS has reviewed the application. The application does not appear to have any evidence missing or needing clarification. Still, USCIS intends to deny the petition.

 

Keep in mind, you still have an opportunity to address the issues brought up by USCIS. So, if you haven't hired an immigration attorney up to this point, do so immediately!

 

Denial: USCIS can deny an I-526 petition without first issuing an RFE or an NOID, but, I have never seen this done.

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Step 7 of the EB-5 Process

 

Wait for Your Priority Date to Become Current (For People Born in Mainland China)

 

If you were not born in Mainland China, you can skip this step.

 

This section gets a little technical, so bear with me…

 

(If you don’t fully understand this part, don’t worry, just do the best you can)

 

There are 3 terms I want to quickly go over:

 

Priority Date: The date your immigration petition is filed.

 

  • Example: The date your Form I-526 is filed.

 

Visa Bulletin: The Department of State resource that provides updates regarding each visa category’s cut-off date (by country).

 

 

Cut-Off Date: This is the date shown on the visa bulletin.

 

  • To get your visa or adjust status, your priority date must be before the cut-off date shown on the visa bulletin.

 

How this applies…

 

There are 10,000 visas set aside each year for the EB-5 visa category.

 

Of these 10,000 visas, the Immigration and Nationality Act sets a maximum on how many visas can go to people of a particular country.

 

Over the last several years, the vast majority of EB-5 visas have gone to citizens of Mainland China.

 

The demand for EB-5 visas in Mainland China has exceeded the number of available visas over the last few years.

 

There are now many EB-5 investors from Mainland china with approved I-526 petitions. Still, they must wait for a visa to become available for them before they can apply to become conditional green card holders.

 

These investors cannot get their EB-5 visa or adjust their status until their “priority date” becomes current. This means that they have to wait until their priority date comes before the cut-off date shown on the visa bulletin.

 

What this means for you as an EB-5 investor is…

 

If you were born in Mainland China, be aware that after your I-526 is approved, you will likely have to wait for your priority date to become current before you can apply for your visa or adjust status.

 

If you were not born in Mainland China, the visa backlog currently does not impact you. Proceed to Step 7.

Step 8 of the EB-5 Process

 

Adjustment of Status or Consular Processing

 

Now that your Form I-526 is approved and your priority date is current, you are eligible to apply for your conditional green card.

 

There are two routes to getting your conditional green card once your I-526 is approved: adjustment of status or consular processing.

 

The route you proceed with will depend on whether you are inside of the United States or abroad, at the time you are applying.

Adjustment of Status

 

  • If you are lawfully present in the United States at the time of your I-526 approval you will may apply for an adjustment of status.
  • To adjust status your immigration attorney will file a Form I-485 with USCIS on your behalf.
  • You will also need to have a medical exam conducted by a USCIS-approved doctor to determine whether you have any disqualifying medical conditions.
  • You will also need to be fingerprinted and cross-checked against law enforcement databases.
  • The adjustment of status process takes about six months.

Consular Processing 

 

  • If you are abroad at the time of your I-526 approval, you will likely go through consular processing.
  • If you selected consular processing on your Form I-526, then once your I-526 is approved, your file will be sent to the National Visa Center in New Hampshire.
  • The National Visa Center will then send your immigration attorney instructions on submission of the Form DS-260 (Immigrant Visa Application).
  • After your immigration attorney submits the DS-260 along with all of the necessary documents to the National Visa Center, they will schedule an interview at the U.S. embassy in your home country.
  • Assuming you are admissible to the U.S., upon successful completion of your visa interview, you will receive a visa to enter the United States as a conditional lawful permanent resident.
  • You must also undergo a medical examination.
  • Consular processing takes about 8 to 12 months.

 

Regarding your visa interview:

 

  • The consular officer that interviews you cannot re-adjudicate your I-526 petition. However, they will still likely ask about your EB-5 investment.
  • They may ask who you are, why you decided to make the investment that you made, and where you obtained the funds required to make the investment.
  • The more you are aware of the types of questions that will be asked of you, the more you can prepare for these questions, and you will have a stronger chance of having a successful interview.

Step 9 of the EB-5 Process

 

2 Year Period of Conditional Lawful Permanent Residency

 

Upon completion of your adjustment of status or your entry to the U.S. following consular processing, you are a conditional green card holder.

 

As a conditional green card holder, you have the same rights and privileges as a lawful permanent resident. The main difference is that your conditional green card only lasts for 2 years.

 

During this 2 year period, you should be conducting business pursuant to the EB-5 business plan that you submitted with your Form I-526.

 

During this time you should:

 

1. keep your investment capital at-risk; and

2. create 10 full-time jobs for U.S. workers.

 

Step 10 of the EB-5 Process 

 

Preparing and Filing the Form I-829

 

At this stage, you are coming to the end of your 2 year period of conditional residency.

 

Within 90 days of the expiration of your 2 year conditional green card, you are required to file a Form I-829.

 

The Form I-829 is the petition to remove the condition on your green card to become an unconditional lawful permanent resident.

 

With this petition, you are proving that you have met the requirements of the EB-5 program.

 

Specifically, you are showing that you maintained your investment in the new commercial enterprise for the 2 year period of conditional permanent residence and that you have created 10 full-time jobs for U.S. workers.

 

To prove job creation, here are some of the documents you should include:

 

  • Form I-9 for all employees
  • payroll records
  • Evidence demonstrating each employee’s legal ability to work in the U.S.
  • Examples:
  • copy of birth certificate (for U.S. citizen employees)
  • copy of permanent resident card (for lawful permanent resident employees)

 

To prove that your investment was sustained, here are some of the documents you should include:

 

  • the business’s federal income taxes, balance sheets, and income statements.
  • the K-1 forms for all partners
  • the business’s bank statements

 

Upon approval of your Form I-829 you are officially a lawful permanent resident (a U.S. green card holder)! 

Step 11 of the EB-5 Process 

 

Apply for Naturalization to Become a U.S. Citizen (Optional)

 

As a lawful permanent resident, you may be eligible to become a U.S. citizen.

 

  • The process of becoming a U.S. citizen is called naturalization.
  • You may be eligible to naturalize after you have been a lawful permanent resident for at least 5 years.
  • In order to naturalize, you are required to be physically present in the U.S. for at least 2 and a half years without being absent at any one time for longer than 180 days.

 

Keep in mind: Your 2 years as a conditional lawful permanent resident count toward the 5 year requirement of lawful permanent residency.

 

Therefore, if you’ve consistently lived in the United States since becoming a conditional lawful permanent resident, you may be eligible to naturalize about 5 years after becoming a conditional lawful permanent resident.

 

Some of the other requirements to naturalize:

 

  • You must pass a United States civics examination
  • You must show that you have good moral character
  • You must take an Oath of Allegiance to the USA

 

_______

 

Congratulations, you have just gone through the entire EB-5 process from start to finish. I hope that you learned something new and found this guide helpful.

 

If you are confused about any particular area, don’t worry, it’s completely normal. The EB-5 process is very complex. If you need proof, just know that many immigration attorneys do not handle EB-5 cases due to their complexity.

 

If you have any questions about any of the points discussed or about the EB-5 visa in general, feel free to email me directly at Michael@AshooriLaw.com

 

Working with investors and entrepreneurs is one of my passions and I would be happy to answer any questions you have!

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Michael Ashoori, Esq.

U.S. Immigration Lawyer

I’m a U.S. immigration lawyer and I help families, professionals, investors, and entrepreneurs get visas, green cards, and citizenship to the United States.

Since starting my law firm, I’ve helped hundreds of people from all over the world with their immigration needs. I’m very passionate, hard-working, and committed to my clients.

Got a question? Send me an email.

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