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Purpose of the EB5 Program

Last Updated: 1/5/2022

The EB-5 Program gives the investor access to a lawful permanent resident along with his immediate family.

· The investor has more control over his invested capital, as he can freely pick which venture he will decide to participate in.

· A partnership or any other form of association can be formed with other individuals who may be interested in investing on the enterprise, which allows the investor to gain access to potentially more attractive investment opportunities by pooling capital.

· The day-to-day operations of the business venture will be in the hands of the investor or its partners, giving the investor much more control over the outcome of it.

· The overall risk of the investment is much more controlled as the investor will probably decide to put his money into business models that he is familiar with and expect good results from.

· For a foreign investor, U.S. market conditions may be unfamiliar, therefore there’s a high risk that he may fail at attempting to establish a business successfully.

· The amount invested is very high ($500,000 to $1,000,000) and failing to implement the business idea as expected will implicate a substantial loss of capital.

· The business must employ 10 U.S. citizens at full-time within the next 2 years after the visa application is received, which creates a lot of pressure for the business owner.

· Invest in a New Commercial Enterprise

o It must have been established after Nov 29, 1990; or

o It could have been established before or on Nov 29, 1990, yet in that case:

§ It must be restructured or reorganized in a way that a new enterprise emerged as a result.

§ Its net worth or number of employees must increase by at least 40% as a result of the investment.

· Jobs must be either created or preserved depending on the nature of the enterprise.

o For new commercial enterprises not located within a regional center, 10 full-time direct job positions for qualified employees must be created during the first 2 years.

o For new commercial enterprises within a regional center, the same requirement applies yet the 10 positions can be either direct (employed by the enterprise) or indirect (employed by a third-party as a result of the creation of the enterprise).

o For troubled businesses, the investor must preserve the number of job positions existing at the pre-investment level for at least 2 years.

· A minimum investment of $500,000 to $1,000,000 is required.

o For general projects, the minimum amount to be invested is $1,000,000.

o For a project located in a Targeted Employment Area, the minimum investment will be $500,000.

A Conditional Green Card will be granted to the investor and his family with a duration of 2 years during which the investor must accomplish the required conditions to eventually apply and get approved for a new Green Card without any conditions attached.

The following forms must be filed to apply for the EB5 Program:

o These supporting documents must be presented along with Form I-526.

§ Evidence that you invested or are in the process of investing in a new commercial enterprise. Documents related to the acquisition or incorporation process of the new enterprise will serve as proof.

§ Evidence that the investor will be involved on the day-to-day management of the new enterprise. A government-issued certificate that indicates that the investor is fulfilling a job position within the company may serve as proof.

§ Evidence that the minimum investment required for the application has been fulfilled. This also includes certifications that the invested funds come from lawful sources.

§ Evidence that the job creation or preservation plan has been either fully implemented or it is being implemented. A business plan may be submitted with the application if the job positions haven’t been created or fulfilled yet. In the case of troubled businesses, evidence that existing employees were retained during a period of at least 2 years must be presented.

Following the approval of this form, any of these two forms may be filed:

There are two types of renewals that have to be done with the EB5 program and these are:

1. Remove conditions on your 2-year conditional Green Card:

b. Pay a filing fee of $3,750.

c. Pay a biometrics fee of $85.

2. Renew 10-year unconditional Green Card:

b. Pay a filing fee of $540.

c. Pay a biometrics fee of $85.

For EB5 the correct application form is the I-526 and it can be easily obtained in the USCIS website. Applicants must also be careful when filing the application as any mistakes made will create delays in the process.

This means that, as part of the agreement established when committing to the new enterprise, there can’t be a guarantee that the invested funds will be repaid to the investor at any given point in time, except for the natural return on investment to be expected from the business venture.

It is essential that the EB5 applicant is able to prove the source of its funds and the legitimacy of how they were obtained. Regardless of the nature of them, either the sale of commercial or residential property in some other country or the ownership of an enterprise, there has to be evidence that the origin of such funds is legit.

After the two years of the conditional Green Card has expired, if all conditions are met, the candidate will be granted with the removal of such conditions and he will enjoy the benefits of an unconditional Green Card. Nevertheless, this permanent residency comes with the limitation that the holder can’t remain outside the U.S. for a period longer than 6 months. Else, the permanent residency status may be stripped away.

Picking an attorney who specializes in immigration law is essential to make sure your needs and doubts are well served and your application process is carried on adequately. Here are a few tips we have compiled for you to help you in this endeavor:

There are dozens of useful articles on the internet that you can read to develop a list of valuable questions that you may ask your prospective immigration lawyer to make sure he’s the right candidate for the job. Google your way to a great first interview.

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