The EB5 program allows a foreign investor to obtain permanent residence (green card) via a substantial investment in a business located in the United States. The amount of the investment varies from $500,000 to $1 million if the business is located in a rural or high unemployment area.
There are two distinct investments that can lead to an EB5 green card, whether one invest in or his own company or in a regional center.
A direct EB5 investment is when the foreign investor has invested:
- In a new commercial enterprise (can be existing business);
- Invested funds must be the individual’s, but may be a gift from a parent or other person, provided the appropriate gift taxes are paid, if required;
- The sum of $1 million or $500,000 if the business is located in a “Targeted Employment Area” (TEA)
- The business must have been created after November 29, 1990 or the investment must substantially change an older business;
- Create full time employment for no less than 10 qualified individuals – no direct job creation is required if the investment is in a “Regional Center” (see below).
Whether the business is located in a TEA is determined by the designation of the location as a rural area or high unemployment area. A rural area is defined as an area that is not within either a metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more. An area can be designated as a TEA based on high unemployment if it has experienced unemployment of at least 150% of the national average rate as determined by the Bureau of Labor Statistics.
USCIS has created the EB5 investment Pilot Program whereby 3,000 immigrant visas are set aside for those who invest $500,000 in a Regional Center. Regional Centers are designated as “any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. The investment through the Regional Center offers the following benefit:
Passive investment of $500,000 in a “Targeted Employment Area” (TEA) with a designated Regional Center
- Investor can be a limited partner with no requirement to run day-to-day management (ideal for retirees or inactive investors)
- Projects are already approved by USCIS and therefore the investor need not present a business plan for example
- Investor can live anywhere in the United States
- No requirement to prove direct job creation, but rather indirect job creation through investment in the Regional Center
An EB5 investor will file an immigrant petition by alien entrepreneur with USCIS and will obtain a two year conditional residency upon approval of the Petition with USCIS. The investor can then apply for adjustment of status, if in the United States and in legal status, or for an Immigrant visa if overseas. Prior to the expiration of the conditional residency, the foreign investor will have to file another petition with USCIS to obtain lifetime residency which is a process to reconfirm that the required investment has been made and 10 jobs have been created (depending if the investment is made with a Regional Center).