Applying for an EB-5 Visa

After an alien investor chooses the project into which he or she wants to invest the requisite capital, the process of self-petitioning for an EB-5 visa comprises three basic steps:

  1. Submitting Form I-526, Immigrant Petition by Alien Entrepreneur, to U.S. Citizenship and Immigration Services (USCIS)

  2. Filing for conditional permanent residence through either:

  3. Before conditional permanent residence expires, submitting Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, to USCIS; after the alien’s I-829 is approved, he or she receives a permanent green card.

Associated fees and processing times for the above-mentioned forms, which are current as of June 2017, appear in the table below.

Form

Filing Fee

Current Processing Time

I-526

$3,675

478 days (in fiscal year 2016)

I-485

$1,225 (includes an $85 biometrics fee)

255 days (in fiscal year 2016)

I-829

$3,835 (includes an $85 biometrics fee)

573 days (in fiscal year 2016)

In this article, we expand on each of the three EB-5 application steps.

STEP 1: Form I-526 Filing

Prospective EB-5 beneficiaries first file a Form I-526 petition with USCIS. This standard template isn’t the only material required, however. In addition to the $3,675 filing fee, accompanying the I-526 application should be documentary evidence to substantiate the information claimed therein. The following pieces of evidence are crucial:

I-526 Requirement

Examples of Appropriate Evidence

Evidence that the EB-5 project is in existence 1

Three years of tax returns, articles of incorporation, limited partnership agreements, business certificates in the state in question, merger and/or consolidation documentation

Evidence that the alien has invested the requisite capital, or is otherwise in the process of investing the requisite capital

Bank statements, promissory notes, loan certificates, mortgage certificates, security agreements

Evidence that the alien’s capital investment was obtained lawfully

At least five years of corporate, partnership, and/or personal tax returns; foreign business registration records; sales contracts (i.e. if the funds stem from the alien’s sale of a property or business); certified copies of the prior 15 years of capital-related judgments); bank account statements; securities statements (i.e. if the alien’s funds stemmed from trading stocks or bonds); pay stubs (i.e. if the alien’s funds were earned through the alien’s employment)

Evidence that the alien’s investment has created or will create at least 10 full-time jobs for qualifying U.S. workers 2

If jobs have not been created: business plan showing that the investment will yield the requisite jobs within two years

If jobs have been created: employees’ Form I-9; tax records

Evidence that the alien will be involved in day-to-day management of the enterprise or otherwise will have a policy-making goal in the project 3

Title, statement, and description of the investor’s duties; corporate documents stipulating the alien’s role; documentation proving the investor’s management and policy-making duties (i.e. if the enterprise is a partnership)

  1. For more detailed information, continue reading below.

  2. If the alien is investing in a project in a Targeted Employment Area (TEA), the I-526 must include statistical proof showing the TEA has a high unemployment rate and a letter from a state agency confirming that the area is classified as a “high unemployment area.”

  3. This I-526 requirement does not apply to aliens investing in regional centers.

A Note on the Specific EB-5 Project You Choose

There are three ways to invest in the EB-5 category, each of which comes with its own advantages and disadvantages. Aliens can infuse their capital into a new commercial enterprise (NCE), into a troubled business, or into a regional center enterprise. Proving eligibility for each avenue of investment varies, as we explain below.

New Commercial Enterprise

Aliens investing in an NCE must provide proof of business organization documents or authorization to do business in the U.S. state or municipality in question. Articles of incorporation establishing the NCE generally suffice.

Troubled Business

Investing in a troubled business allows aliens to count the maintenance of full-time jobs (for a period of two years) at the business toward the creation of 10 jobs required by the EB-5 visa. Investors should submit tax records, a comprehensive business plan, employee I-9s, and other documentation to show the jobs preserved as well as the qualifications of the employees whose jobs were preserved.

Regional Center

Aliens investing in a regional center are required to demonstrate that they’ve invested in such a USCIS-designated pilot program. Evidence to this end is typically a letter from the agents of an escrow account, which attests to the fact that the alien has invested the requisite capital, and a letter from the regional center’s principals.

STEP 2: Filing for Conditional Permanent Resident Status

Subsequent to the approval an I-526 petition, the investor subsequently must file for an adjustment of status, if the alien is in the U.S., or apply for an immigrant visa through consular processing, if the alien resides outside the U.S.

  • For an in-depth overview of filing for an adjustment of status, click here.
  • For an in-depth overview of undergoing consular processing, click here.

EB-5 petitioners should note that they are not allowed to concurrently file I-485 petitions with their underlying I-526 petitions. This is unlike most other immigrant visa categories, which allow concurrent filing.

Conditional permanent resident status lasts for two years.

STEP 3: Form I-829 Filing

Within 90 days of the expiration of her conditional green card, an EB-5 investor (and her derivative beneficiaries, if applicable) must submit an I-829 application to USCIS, which serves to remove the conditions on the investor’s status. Only the California Service Center adjudicates these petitions.

In essence, USCIS will approve an I-829 petition as long as everything the alien attested to in his I-526 petition has been verified or fulfilled. Upon approval, the investor will receive a permanent green card. An alien’s failure to file an I-829 will result in the automatic termination of conditional permanent resident status, thereby initiating deportation proceedings.

For a more detailed look at this step of the EB-5 application process, click here.

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

Updated 06/09/2017