Form I-526, “Immigrant Petition by Alien Entrepreneur,” must be filed with USCIS. The petition must be supported by a substantial amount of documentation proving that the investor’s source of funds is from a lawful source and that business enterprise would create requisite number of jobs. Once the petition is approved, the investor may either apply for an immigrant visa at a U.S. Consulate or, if the investor is in the United States, apply for adjustment of status to permanent residence.
The EB-5 minimum investment amount is generally $1 million. Minimum investment amount in TEA “targeted employment areas (high unemployment area),” is $500,000. Please note that investing in a Regional Center project does not automatically qualify you to invest only $500,000 – each Regional Center project must also prove that their project is located in TEA.
Must the investor have any specific relationship with the U.S. business in which the investment is made?
The investor need not own any specific percentage of the business, be an officer of the business or be an employee of the business. However, the investor must be engaged in the business, whether through actual day-to-day managerial control, by being a member of the board of directors, by being a limited partner. Passive investment in a real estate, for example, is not sufficient.
EB-5 program is designed to be a job creating investment program. The most important factor in EB-5 investment is not how much money will the project make, but how many jobs will the project create. The investment must create full-time, permanent employment for at least 10 U.S. workers. Jobs must last more than 2 years, but optimally until Removal of condition is approved. The required 10 positions cannot include the investor or the investor’s spouse or children. For approved regional centers, the creation of employment could include indirect employment.
The EB-5 petition must document that the required 10 jobs to be created within 2 years and 6 months following the I-526 petition approval.
The initial permanent resident status granted to the investor is a “conditional permanent resident status” that is valid for two years. The investor and family members are required to remove the condition by filing an application during the 90 day period prior to the expiration of this 2 year residency. The petition will be required to demonstrate the continuation of the business, the investment of the requisite amount of capital and the creation of the required number of jobs.
The investor, his or her spouse and unmarried children under 21 years could obtain permanent residence at the same time and through a single investment.
The investor is free to travel in and out of the United States subject to the rules generally applicable to permanent residents. Specifically, the investor must maintain a residence in the United States and must not be outside the United States for a continuous period of one year or more, unless they have obtained a reentry permit.
Currently, I-526 petition adjudication is taking nearly 15 months by USCIS. Once the petition is approved, I-485 adjustment of status or DS-230 Immigrant Visa to actually obtain the conditional permanent residency generally takes between 4-6 months depending upon whether the investor is in the U.S. or outside.