General EB-5 Program Overview
Section 203(b)(5) of the Immigration and Nationality Act (INA), allocates 10,000 “EB-5” immigrant visas per year.
3,000 visas are reserved for aliens who invest in targeted employment areas (TEAs).
3,000 visas are reserved for aliens who invest in commercial enterprises affiliated with Regional Centers.
The EB-5 regulations may be found at 8 CFR 204.6 and 8 CFR 216.6, respectively.
EB-5 Investors may be eligible for an EB-5 immigrant visa if they have invested – or are actively in the process of investing -the required amount of capital into one of the following for-profit business-types:
- A new commercial enterprise (created after 11/29/1990);
- An enterprise which will expand to 140% of pre-investment net worth or number of employees, or;
- A troubled business in which jobs will be preserved.
- The standard capital investment requirement for an EB-5 investor is $1 million.
- The capital investment requirement for an EB-5 investor in a Targeted Employment Area (TEA) which is either in a high unemployment area, (calculated as an area with an unemployment rate that is at least 150% of the national average), or a Rural Area (RA) is $500,000.
- Each EB-5 investor must demonstrate that their capital investment will create/preserve at least ten (10) jobs for qualified U.S. workers within the United States.
- A qualified U.S. worker is a U.S. citizen, LPR, or other qualified immigrants (e.g. asylee or refugee).
- Jobs created for nonimmigrant workers and/or members of the EB-5 investor’s family are not qualifying.
There are four steps to becoming a Lawful Permanent Resident (LPR) through the EB-5 program.
- Form I-526 immigrant petition approval.
- Obtain immigrant status through adjustment of status (Form I-485) in the United States with USCIS or through an application for immigrant visa (Form DS-230) with the Department of State (DOS).
- Upon approval of the Form I-485 or admission on an EB-5 immigrant visa, the alien is granted two-years of conditional permanent resident (CPR) status.
- A Form I-829 petition to remove the conditions on the CPR status must be filed at the end of the two-year conditional period. If the alien has fulfilled the EB-5 requirements in accordance with the business plan in the approved Form I-526 petition, then the conditions on the alien’s LPR status will be removed.
The Immigrant Investor Pilot Program (“Pilot Program”) was created by Section 610 of Public Law 102-395 (October 6, 1992), and has been extended through September 30, 2012.
EB-5 requirements for an investor under the Pilot Program are essentially the same as in the basic EB-5 investor program, except the Pilot Program provides for investments that are affiliated with an economic unit known as a “Regional Center”. Investments made through Regional Centers can take advantage of a more expansive concept of job creation including both “indirect” and “direct” jobs.
- Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
- Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor.
- The determination of the number of direct and/or indirect jobs that will be created through an EB-5 investor’s capital investment is based upon the evaluation and approval by USCIS of a business plan and associated detailed economic analysis during the Form I-526 petition adjudication.
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