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U.S. Immigration Law

EB-5 Investor Visas

The employment based fifth preference category is for immigrants who invest at least $1,000,000 ($500,000 under certain circumstances, described below) in a new commercial enterprise that will employ at least 10 U.S workers. This category does not require labor certification as a pre-requisite.

Criteria for EB-5 Investor Visa Petitions

There are three requirements for an EB-5 investor petition:

  1. The foreign individual must establish a new commercial enterprise, by one of three ways:
  1. Creation of an original business;
  2. The purchase of an existing business, with simultaneous restructuring such that a new commercial organization results; or
  3. The expansion of an existing business.
  1. Eb-5 Law FirmAny for-profit entity formed for the ongoing conduct of lawful business may serve as a commercial enterprise, including sole proprietorships, partnerships, holding companies, joint ventures, corporations, business trusts, etc. A holding company with its subsidiaries would also qualify if each subsidiary is engaged in the active conduct of business. The foreign individual must be actively involved in the business, not a passive investor.
  1. The immigrant must have invested $1 million ($500,000 under certain circumstances listed below) in the business. The investment may be in the form of cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the foreign individual, as long as he or she is personally and primarily liable and the assets of the new commercial enterprise are not used to secure any of the indebtedness.
  1. An investment of $500,000 is allowed for a business in “targeted employment area,” defined as:
  1. A rural area, one not located within either a metropolitan statistical area or the outer boundary of a city or town with a population of 20,000 or more; or
  2. An area having an unemployment rate that is at least 150% of the national average.
  1. The business must create full-time employment for at least 10 U.S. workers.

How do I file an EB-5 Investor Visa Petition

The EB-5 petition is filed at either the Texas or California U.S.C.I.S. Service Center. On approval of the petition, if a visa number is available, the individual may apply for adjustment of status with his/her spouse and children under 21 years of age. Alternatively, after approval of the petition, the investor and his family may chose to undergo consular processing of their immigrant visas at a U.S. consulate abroad.

Conditional Residence for Two-Year Period

Immigrant investors, their spouses and dependent children are subject to conditional permanent residence for a two-year period. The investor must then file a petition to remove conditional status during the 90-day period prior to the second anniversary of the his lawful admission as a conditional permanent resident. The U.S.C.I.S. will examine the business at the end of the two-year period to determine whether the investor continues to comply with EB-5 requirements.

The number of immigrant visas for the EB-5 preference category is also subject to an annual numeric limitation for nationals of each country. The filing date of the immigrant visa petition establishes the priority date for the application. Unlike the family-based  categories, the EB-5 preference category is normally current. Click the Department of State Visa Bulletin for the priority dates for preference category petitions and to find the backlog for each preference category.

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