Fifth Preference Category Immigrant Petition
The EB-5 is an investor visa which provides a path toward the Green Card. As of Nov 21, 2019 the standard minimum investment amount increased to $1.8 million (from $1 million), and the minimum investment in a TEA increased to $900,000 (from $500,000) from lawful sources into a new commercial enterprise that will create 10 U.S. jobs for qualifying employees.
Note: Under a new rule published by the U.S. Department of Homeland Security, several changes to the EB-5 Immigrant Investor Program went into effect on Nov. 21, 2019.
The new rule modernizes the EB-5 program by:
- Providing priority date retention to certain EB-5 investors;
- Increasing the required minimum investment amounts to account for inflation;
- Reforming certain targeted employment area (TEA) designations;
- Clarifying USCIS procedures for the removal of conditions on permanent residence; and
- Making other technical and conforming revisions.
Priority Date Retention
Certain immigrant investors will keep the priority date of a previously approved EB-5 petition when they file a new petition.
- You must be able to trace all funds to lawful sources. This means that even individuals providing a loan or gift must be able to establish that the funds were from lawful sources. All investors, even those not seeking EB-5 classification must be able to establish the lawful nature of those funds.
- The funds can be in the process of being invested at the time that the EB-5 petition is filed (Form I-526), however, it is highly recommended that the funds have already transferred.
- The funds must be placed “at risk” – i.e. that there is no guarantee of a return on investment.
- Extensive personal information will need to be collected (as set forth in the attached document checklist).
- Developing Petition: Typically will take 8 weeks to develop all of the evidence and create the EB-5 petition (I-526). It can easily take longer depending upon the status of the business plan; if the funds are difficult to trace and document; if you have extensive corporate work that may need to be done, etc. During the spring, because of immigration caseload around the country, this time period could be as long as 10 weeks.
- While we can do a supervisory evaluation of the business plan from an immigration perspective, our recommendation would be to have you do a draft of your business plan and then utilize a professional EB-5 business plan service. We can connect you with a few and help get quotes.
- Form I-526 Immigrant Petition by Alien Entrepreneur: As of Jan. 10, 2020, the processing time is between 32.5 months to 49.5 months. If there is a Request for Evidence, which is common in these types of cases, additional time will be required for a decision.
- Consular Processing for the Immigrant Visa: If the case is approved by USCIS, the foreign investor and family can apply for an immigrant visa and then travel to the U.S. as a “Conditional Permanent Resident.” From the time of the USCIS decision to the consulate interview, it is approx. 6 – 8 months. Any accompanying children must be under 21 and unmarried to qualify (the Child Status Protection Act (CSPA) could provide some relief; an analysis of this can be provided as relevant).
- Form I-829 Removal of Condition: After becoming a conditional resident, the foreign investor has 2 years in which to remove the condition. By that time, the 10 U.S. hires must be in place. As of Jan. 10, 2020, the processing time for removing the condition, currently stands anywhere between 21 months to 45.5 months.