Who’s Eligible for an EB-5 Visa?

The EB-5 visa requires holders to make substantial investments of either $1 million or $500,000 at minimum in the United States. These are considerable sums of money, so you might be wondering what kind of people are eligible for this category and whether you are lucky enough to be one of them. The following scenarios serve to clarify the eligibility and general requirements for the EB-5 investor visa.

Scenario 1

Background

Dr. Wang and his wife are in their 50s and are renowned professors at a university in Beijing, China. They have an 18-year-old son, Wayne, who is already studying in the United States as a college freshman, and they would like to join him there. Over the course of their careers, the Wangs have accumulated a total of $600,000 in assets through real estate investments in the condo market in Beijing. They have heard that it is possible to receive an EB-5 visa by investing in the U.S., and they know that they meet the $500,000 minimum for investing in a targeted employment area (TEA).

Is the EB-5 a viable option for the Wangs?

We would advise the Wang family against investing most of their assets in a TEA. Although they do have enough to meet the minimum investment requirement, they would have to risk more than 80 percent of their life savings on an investment that might end up failing. This risk is compounded by the fact that they are only able to afford an investment in a TEA, which is a more precarious investment because TEAs are located in less economically stable areas.

Nevertheless, if the Wangs are feeling particularly lucky and decide to bet the farm on a TEA investment, there is no need for both spouses to provide the necessary investment funds individually or to ensure the creation of 10 jobs each, as dictated by pooling requirements (found on this page). Rather, because the Wangs are a married couple, one spouse would be considered the beneficiary of the EB-5, while the other spouse would be a derivative beneficiary. Spouses and unmarried children under the age of 21 are considered derivative beneficiaries and are eligible for all of the same benefits as the EB-5 beneficiary. Thus, the Wangs’ son Wayne would also be eligible for EB-5 benefits.

One more obstacle getting in the way of the Wangs’ immigration plans is the current retrogression for EB-5 applicants from mainland China, which could add significant wait time to their application process.

While taking on such substantial risk by investing in a TEA is inadvisable, the Wangs still have other, less burdensome options for immigration to the United States. For example, they could look into other employment-based categories like EB-1A or NIW, which would focus on their professional achievements and extraordinary abilities rather than on the size of their assets.

Scenario 2

Background

Peggy Patel is independently wealthy, having made her fortune in shipping. To date, her assets total $15 million. Because her business is continually growing, she expects to maintain her wealth for the long haul. Recently, Ms. Patel discovered an opportunity in the U.S. shipping and logistics market and would like to start a company there. In setting up shop in the U.S., Ms. Patel would become the creator of a new business enterprise and become the majority shareholder. She is also married and has two children, both of whom are under the age of 21.

Is the EB-5 a viable option for Ms. Patel?

Absolutely. With plenty of liquid assets and a clear idea of what industry she wants to invest in, the EB-5 visa is an ideal option for Ms. Patel. Her husband and children will also receive EB-5 benefits.

Scenario 3

Background

Mikhail Bogatovsky received a 56,000,000 ruble (~$1,000,000) gift from his father, Vladimir, an oligarch in Moscow, Russia. Not surprisingly, Vladimir spoiled Mikhail as a child, and as a result, Misha has no advanced degree or special skill set, nor does he have managerial experience. Nevertheless, Misha is young and single and looking for a fast way to get to the United States to party with his friends in Los Angeles. He was considering leveraging his sister Masha, who married an American man and is already a U.S. citizen, for this purpose. However, he recently heard about the EB-5 visa.

Is the EB-5 a viable option for Mikhail Vladimirovich?

The EB-5 is indeed a viable option for Mikhail. In fact, it’s one of his only options, since he has no advanced degree or special skill set that could make him eligible for other employment-based visas like the EB-1A or NIW. His only other option would be to apply for a green card through a family-based I-130 petition based on his sister Masha’s citizenship. However, as a sibling, Masha would be in the fourth-preference, family-based category, and he has no time to wait around for the length of time required by a family-based petition (think of all the parties he’ll miss out on). Thus, Mikhail’s best option is to invest his million bucks in an EB-5 investment.

But which investment option is right for him? If he invests directly in a new business enterprise, he will likely have to take part in managerial operations, but Misha has no managerial experience (and isn’t interested in acquiring any), so after carefully (or carelessly) weighing the advantages and disadvantages of each option, Misha decides his best bet is to invest in a regional center, where he will have no managerial responsibilities and can instead sip sangria in a swimming pool overlooking Beverly Hills.

Scenario 4

Background

Seo-yun is an executive vice president working for a major Korean chaebol and is interested in permanently moving to the U.S. using an EB-5. She knows that if she sells her house, she will have a net worth of a little over $1 million, enough to invest in a new business enterprise and obtain an EB-5 visa. Moreover, Seo-yun has extensive managerial experience, so she is not limited to a regional center. However, her company, which has offices in many countries around the world, including the United States, has recently informed her of a plan to send her to work at their U.S. branch on an EB-1C visa.

Is the EB-5 visa the best option for Seo-yun?

Since Seo-yun’s net worth is just over $1,000,000 dollars and she would have to sell her home to obtain the liquid funds necessary for an EB-5 investment, the EB-5 might not be the best option for her. A better strategy would be to come to the United States on a temporary L-1 visa as an intra-company executive transferee before submitting an EB-1C immigration petition for permanent residency. That way, Seo-yun will not have to sell her home and risk her net worth on an investment that might end up failing. If she goes the EB-1C route, she can immediately adjust her status to unconditional permanent residency as soon as her EB-1C petition is approved.

Final Thoughts

At Zhang & Associates, we know that you are very different from the Wangs, Patels, Mikhail, and Seo-yun. Your case will have its own idiosyncrasies, just as your situation has its own unique features. That’s why the experienced immigration attorneys at Zhang & Associates are here to help you guide you down the path that best suits your situation and needs. Contact us today to see what we can do for you.

For more detailed information about the EB-5 visa, refer to the following links:

Updated 06/09/2017