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EB-5 Investor Visa

EB-5 Investor Visa

Any Foreign National desiring to work/reside in the United States has the options of filing various Non-Immigrant/Immigrant Visa petitions.

H1B Visa & the dreaded Lottery;
L Visa if you work in a multinational which agrees to transfer you to their United States office.
Also L Visa If you are a business owner and wish to open a business in the U.S by investing
EB3/EB2/EB1 and the employment based , Sponsored petitions.

The EB-5 Investor Program presents a solution because of its-

  1. Direct Route to Permanent Residency;
  2. Concurrently Filing adjustment Application (if you reside in the US on a Non immigrant Visa and Visa is available.)
  3. Getting Employment Authorization and Travel Document within 6-9 months of filing.
  4. Shorter Wait Time for Approval
  5. Various Benefits (Employment; Education; In State Tuition; Healthcare etc.)

Bare Basics of an EB5 Investment

  1. USCIS administered Immigrant Investor Program to boost U.S Economy via Foreign Investment and Job Creation, simultaneously providing U.S. Immigration Benefit to the Foreign investor.
  2. The Foreign Investor makes an “At Risk” Investment in a New U.S. Commercial enterprise.
  3. The amount invested should be $800,000 (subject to change on Jan1st 2027 and every Five years thereafter ) for investment in a Targeted employment area i.e.
  4. “TEA” or $1,050,000 investment in any general employment area.
  5. Must create 10 American jobs per investment
  6. One investment per family (Husband, Wife and their children under 21)
  7. For those investors who are in the US on any non-immigrant visa status, a concurrent Adjustment of status application (for conditional green card), request for Employment authorization and can be filed.

Regional Center Vs. Direct Investment

Job Creation under EB5

  1. Each petition requires creation of 10 Jobs.
  2. Regional Center Jobs are calculated by an econometric model (e.g. RIMS II), the model is input & output model where input is expense and output is jobs. Thus RC Jobs can be Direct, Indirect and Induced. RC job calculations are based on a formula, not a head count. No W2s are needed for RC job calculations.
  3. For Direct Investors the job count is Direct- i.e. Ten- Full-time, E- verified employees with W2s.
  4. The EB5 Direct Investment is a Permanent Program.
  5. The EB5 Regional Center program has been reauthorized for five years.

Direct vs Regional Center

Attorneys frequently file direct as well regional center cases.

Some Investors prefer to file EB5 with Regional Centers. The main factor that make investors go via the Regional center is that they don’t need/want to spend substantial time on to this investment or do day to day monitoring of the project. There is ease of investment, documentation, Jobs Creation etc.

Direct Investors are the people who want to monitor their capital, have a business plan that they wish to execute, want better returns on their investment and are willing to manage the new enterprise that they build from ground up. This is complex and simple at the same time. It gives the investor freedom of choice, real/tangible assets, better control and higher involvement.

Lawfully obtained capital

  • A complete outline tracing the source of funds to demonstrate lawful SOURCE of the funds is the baseline of an investor petition.
  • Proper documentation of source and path of funds is critical. Clear ownership of the invested funds has to be established-
    • Accumulation of Salary, 401(k), Options
    • Earnings from business ownership
    • Proceeds from Sale/Mortgage of Real Property
    • Gift
    • Inheritance
    • Loan (Zhang vs USCIS)

U.S. Immigration law allows foreign nationals to obtain Green Card (aka Permanent Residency in the USA) through Employment (and Family Petitions).
The Green Card Quota per Year via Employment = 140,000.
There are five different Categories within Employment Based Green Card –
EB1- Priority Workers- Extraordinary Ability- 40,000 Visas/year
EB2- Professionals with Advanced Degrees- 40,000 Visas/year
EB3- Skilled Workers- 40,000 Visas/year
EB4- Special Immigrants (Religious and other Workers)- 10,000 Visas/year
EB5- Employment Creation (Immigration through Investment)- 10,000 Visas/year

Additionally Each Country has a Cap of 7% Per category, Thus EB1, EB2 & EB3 = 7% of 40,000 = 2,800 Visas/Country/Year EB4 & EB5 = 7% of 10,000 = 700 Visas/Country/Year


Changes to EB-5 Program

  • EB-5 Regional Center Program was reinstated on March 11th 2022 for 5 years, to be ended or reinstated on Sep 30th 2027.
  • Multiple Requirements set in place to ensure Compliance by Regional centers.
  • Promoters, agents- all must register with USCIS.
  • Various Protections outlined for Investors
  • Preserving rights for Aging out Children
  • No Pooling of funds for Direct investors.
  • All Petitions filed on or before 30th September 2026 will be adjudicated.

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