General Overview:
The EB-5 green card is for qualifying investors in U.S. companies. In short, those who make a qualifying investment into a qualifying U.S. business can obtain EB-5 classification which then converts into U.S. permanent residency for the investor and their immediate family (their spouse and children under age 21 at the time of filing the application). The investment must create (or, in some situations, save) at least ten (10) permanent U.S. jobs. That includes jobs for citizens, U.S. permanent residents (excluding the investor and their immediate family), refugees and asylees.
There is a wide range of U.S. businesses that would qualify, from small LLCs solely owned by the foreign investor to giant Partnerships organized by Regional Centers.
The U.S. government requires submission of extensive evidence related to the origin of the money used for the investment. See below for a discussion of Source of Funds.
Information about the investment and also the source of the money used for investment is submitted to USCIS as part of a Form I-526 petition package. After approval of that Form I-526, the investor and his/her accompanying family can convert that approval into residency either by (1) adjusting status within the U.S. via Form I-485 or (2) consular processing of an EB-5 visa after completing the National Visa Center (NVC) step.
The residency is first granted for a conditional period of 2 years. Prior to expiration of that conditional residency period, the investor files a Form I-829 seeking unconditional permanent residency. This Form I-829 petition requires evidence that the investor kept their funds invested for the required period and that the required ten (10) new U.S. jobs were created (or saved) as a result of that investment.
EB-5 Reform and Integrity Act of 2022:
In March 2022, the EB-5 Reform and Integrity Act of 2022 became a law. This new law authorized the Regional Center program through September 2027. Effective March 2022, the minimum investment amount in rural areas, areas of high unemployment (Targeted Employment Area or “TEA”), and in government infrastructure projects is $800,000 USD. The investment minimum for other areas is $1,050,000 USD. USCIS is asking Regional Centers to get reauthorized via new Form I-956, but with the recent granting of a preliminary injunction by the judge in Behring Regional Center LLC v. Mayorkas, et al. (Case No. 3:22-cv-02487-VC), Regional Centers do not need to wait for adjudication of Form I-956 and are currently accepting new subscriptions from EB-5 investors.
The EB-5 Reform and Integrity Act also allows EB-5 investors—and their immediate family members—that are lawfully in the U.S. on certain visas (such as an H-1B worker) to concurrently file their Adjustment of Status (Form I-485) along with the EB-5 petition (Form I-526). This means that those investors can get interim work authorization (Form I-765) and travel rights (Form I-131) while they wait for the processing of the EB-5 petition. Of note, this also applies to investors who filed Form I-526 prior to passage of the EB-5 Reform and Integrity Act in 2022 but are still waiting for USCIS to make a decision on that application—those investors may now file for Adjustment of Status.
Source of Funds:
One of the most common reasons that an EB-5 petition (Form I-526) is denied by USCIS is for lack of evidence of a lawful “source of funds.” USCIS requires that the investor provide extensive documentation of how every dollar they invested was earned lawfully. The evidentiary requirement is more than just showing tax returns and proof of employment, it requires tracing each dollar through all its movements from the time of being earned lawfully until it was received into the investment project. USCIS does not have a restrictive list of the sources of funding they find acceptable. Common investment fund sources include, but are not limited to, accumulated salary, owner corporate distributions of excess profits, inheritances, securities sales, and/or land sales (that were acquired with accumulated salary or owner earnings). It is common for the investment funds to be totally, or partially, obtained through gifts from family; when it is a gift, then USCIS requires proof of the source of the gift donor’s money used for the gift. It is important than at EB-5 investor have an experienced EB-5 immigration attorney review, document, and clear their source of funds before the investor remits any investment funds into the project.
EB-5 Services of BMB Immigration Law:
Attorney Rebecca "Becky" Bodony has approximately a decade of experience preparing and filing successful EB-5 petitions for investors. She represents direct investors and Regional Center investors. She specializes in complicated sources of funds and in assisting investors who have received a Request for Evidence (“RFE”) from USCIS about their application. She advises investors throughout the whole journey: strategic selection of which funds have the strongest “source of funds” evidence; preparation of an EB-5 petition package; filing Adjustment of Status (Form I-485) or guiding clients through the National Visa Center (“NVC”) process after approval of the EB-5 petition; conducting mock EB-5 visa interviews; and lodging the required Form I-829 petition at the end of the conditional residency period.
For a free consultation about EB-5, please go to the Contact Us tab of this website and submit an inquiry.
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