The fifth employment based visa preference category (“EB-5”), created by Congress in 1990, is available to immigrants seeking to enter the United States in order to invest in a new commercial enterprise that will benefit the US economy and create at least 10 full-time jobs. The EB-5 Program is governed by section 203(b)(5) of the Immigration Nationality Act (INA).
The program annually sets aside 10,000 permanent residency cards (green cards) for immigrants who make a qualified investment through the EB-5 program.
New Business Enterprise:
To qualify you must:
- Invest or be in the process of investing at least $1,000,000. If your investment is in a designated targeted employment area (discussed further below) then the minimum investment requirement is $500,000.
- Benefit the U.S. economy by providing goods or services to U.S. markets.
- Create full-time employment for at least 10 U.S. workers. This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however it does not include you (the immigrant), or your spouse, sons or daughters).
- Be involved in the day-to-day management of the new business or directly manage it through formulating business policy – for example as a corporate officer or board member.
Targeted Employment Area:
In order to qualify for the reduced investment amount, the new commercial enterprise must be located in a Targeted Employment Area (“TEA”) which is defined by law as:
- A Rural Area—consisting of a population less than 20,000; or
- A High Unemployment Area—in which the unemployment level must be at least 150 percent of the national average.
Acquiring lawful permanent residence (“Green Card”) through the EB-5 category is a three step self-petitioning process:
- The successful applicant must obtain approval of his or her Form I-526 Petition for an Alien Entrepreneur;
- He or she must either file an I-485 application to adjust status to lawful permanent resident, or apply for an immigrant visa at a U.S. consulate or embassy outside of the United States. The EB-5 applicant (and he or her derivative family members) are granted conditional permanent residence for a two year period upon the approval of the I-485 application or upon entry into the United States with an EB-5 immigrant visa;
- A Form I-829 Petition by an Entrepreneur to Remove Conditions must be filed 90 days prior to the two year anniversary of the granting of the EB-5 applicant’s conditional Green Card. If this petition is approved by CIS then the EB-5 applicant will be issued a new Green Card without any further conditions attached to it, and will be allowed to permanently live and work in the United States.
The investor’s spouse and unmarried children under the age of 21 may be admitted to the U.S. with the investor on a two-year conditional period. If the investor’s I-829 petition to remove conditions is subsequently approved, then the conditions will be removed for the spouse and children’s Green Card status as well. As a lawful permanent resident (Green Card holder) the investor’s spouse and children will be authorized to work or attend school in the U.S.