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US EB5 investment immigration

The U.S. EB-5 Program, which stands for Employment-Based immigration Fifth Preference, is an investment immigration program based on job creation. The program was established in 1990. Its core goal is to attract foreign investors to create businesses in the U.S. and drive economic development by creating more employment opportunities. Unlike traditional employment-based immigration categories (such as EB-1, EB-2, EB-3, EB-4), the EB-5 program has no rigid requirements for applicants' language, education, or business experience. Under this program, investors, their spouses, and their unmarried children under 21 are eligible to apply for U.S. permanent residency (a green card). The prerequisite is that they make a necessary investment in a U.S. commercial enterprise and plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

Latest Policy Changes

On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act of 2022, which introduced significant changes to the EB-5 program. Key changes in the new act include:

  • Authorization Period: The Regional Center Program is authorized through September 30, 2027.

  • Investment Amount Adjustment: The investment amount for Targeted Employment Areas (TEAs) was adjusted from $500,000 to $800,000, and for non-TEA areas from $1,000,000 to $1,050,000.

  • Visa Reservation Mechanism: 32% of the annual EB-5 visa quota (approximately 3,200 visas) is reserved, with 20% for rural projects, 10% for high-unemployment area projects, and 2% for infrastructure projects.

  • Integrity Fund System: The new act established an EB-5 Integrity Fund to detect and investigate fraud, and conduct audits and site visits.

Application Process

Specific project categories (rural, high-unemployment areas, infrastructure) have independent visa quotas that are currently backlogged-free, which can significantly shorten the time to get a green card.

Phase 1: I-526E Application

This phase involves demonstrating the legal source of personal assets and that the project meets the requirements. Rural projects are eligible for priority processing, with a review time of 11-17 months.

Phase 2: Visa Application/Adjustment of Status

After I-526E is approved, applicants outside the U.S. can apply for an immigrant visa through the National Visa Center and attend an interview at a local embassy or consulate. Applicants already in the U.S. can concurrently file an I-485 Adjustment of Status application to obtain an Employment Authorization Document (EAD) and a travel permit.

Phase 3: Conditional Green Card

Upon receiving the immigrant visa, you must enter the U.S. within 180 days to receive your two-year conditional green card.

Phase 4: I-829 Petition to Remove Conditions

Submit the I-829 petition to remove conditions on your green card three months before the conditional green card expires (i.e., 21 months after receiving it) to obtain a permanent green card.

Application Requirements

The main applicant must be at least 14 years old and can include their legal spouse and unmarried children under 21 in the application.

  • Investment Amount: Invest $800,000 (for TEA or infrastructure projects) or $1,050,000 (for non-TEA projects) into a designated regional center project.

  • Job Creation: Each investment must create at least 10 full-time jobs (direct or indirect) for U.S. citizens, legal permanent residents, or other authorized U.S. workers, not including the investor or their family.

  • Legal Source of Funds: You must provide proof of the legal source of your funds. This includes: mortgage on a property, salary income, gifts or inheritance from relatives or friends, real estate sales, stock and security transactions, retained earnings from a business, or legal company dividends.

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Q1. What is the EB-5 backlog, and why does it occur?

The EB-5 backlog refers to the waiting time for a visa quota after an I-526 (or I-526E) petition is approved. The main reason for the backlog is that the EB-5 category has an annual quota of only 10,000 visas (approximately 3,000 families) per fiscal year (from October 1 to September 30 of the following year). A backlog occurs when the number of applicants for a certain visa type exceeds the annual quota or when the number of applicants from a specific country exceeds its country-specific limit (which is, in principle, 7% of the total quota). The Visa Bulletin releases a monthly cut-off date, and only applicants with a priority date (the date the I-526/I-526E was filed) earlier than the cut-off date can receive a visa.

Q2. What positive effects does the new EB-5 act have on the backlog? What are reserved visas?

The new EB-5 act automatically reserves 32% of the 10,000 annual visa quotas for specific project types. The breakdown is as follows: 20% (2,000 visas) are reserved for rural projects, 10% (1,000 visas) for high-unemployment area projects, and 2% (200 visas) for infrastructure projects. These reserved visa categories are currently (as of the source document's date) "Current," meaning there is no backlog. This allows applicants who invest in these projects to receive a visa much faster after their I-526E is approved, avoiding a long wait. If the reserved visas are not used in the current year, they are carried over to the same category in the next fiscal year. If they are still unused after two years, they will be made available to other EB-5 applicants.

Q3. What is EB-5 Concurrent Filing, and what are its benefits?

EB-5 Concurrent Filing allows applicants who are legally present in the U.S. to file their I-485 Adjustment of Status application at the same time as their I-526E immigrant petition. As long as the main applicant has been legally present in the U.S. for at least three months when filing the I-526E and there is no visa backlog for the specific EB-5 project category, they can file concurrently. Concurrent filing allows applicants to submit I-485, I-765 (Application for Employment Authorization), and I-131 (Application for Travel Document) while waiting for the I-526E approval, and may receive an EAD card and a travel permit (AP) faster. This enables them to legally work, study, and travel in and out of the U.S.. Upon receiving the I-485 receipt, the applicant is authorized to legally stay in the U.S..

Q4. How can the legal source of EB-5 investment funds be proven?

USCIS requires EB-5 applicants to prove that their investment funds are from a legal source. Legal sources of funds are diverse and include, but are not limited to:

  • Investment gains, including profits from real estate transactions.

  • Inheritance, with documents such as a will or death certificate.

  • Company profits, requiring company tax records, audit reports, and proof of the legality of shareholder dividends or loans.

  • Mortgage loans, with proof of the legal source of the collateral property.

  • Salary income, with proof of personal income tax, bank statements, and employment records.

  • Stock trading, with proof of the source of the original investment funds and the process of earning profits from the trades.

  • Gifts, providing documents from the donor and an explanation for the gift and the source of the funds.

  • Personal loans, with a loan agreement and proof of repayment ability and the source of the loaned funds.

Program Advantages

1
Reserved Visas Have No Backlog

Specific project categories (rural, high-unemployment areas, and infrastructure) have independent visa quotas that are currently backlogged-free, which can significantly shorten the wait for a green card.

2
Lenient Application Requirements

There are no rigid requirements for age, education, business experience, or English proficiency, with the main focus being on the legal source of funds and the project's job creation.

3
No Personal Management Required

The new act increased compliance requirements and supervision for regional centers, and established an Integrity Fund, enhancing the security of both the project and the investment funds.

4
Concurrent Filing Option

Applicants already in the U.S. can legally reside, work, and study sooner, travel freely in and out of the U.S., and lock in their children's age (CSPA age calculation).

5
Investor Protection

If an I-526 petition is denied due to issues with the project or regional center, the priority date can be retained when reinvesting in a different project.

6
Act's Stability

Applications filed before September 30, 2026 are protected by a specific clause.

Latest Article

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