What is the green card investment process?

The EB-5 Immigrant Investor Program is one of several routes you can take when applying for a U.S. green card. This program falls under the employment-based category of green cards (hence the “EB”). 

This type of employment-based green card is issued to large-scale investors who want to live and work in the U.S. However, several criteria need to be met in order to be eligible for the EB-5 program. This article explores what it takes to acquire residency through green card investment and whether this option is relevant for you.

What is the green card through investment?

The EB-5 Program was started in 1990 by Congress as a means of stimulating the U.S. economy and job market by attracting foreign capital. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This program sets aside EB-5 investor visas for foreign nationals investing in commercial enterprises associated with approved regional centers to promote economic growth. 

Currently under these programs, foreign nationals are eligible to receive permanent residency through investment if they fulfill certain criteria, namely: 

• They’ve invested, or are in the process of investing, at least $1,050,000 in an eligible EB-5 project enterprise (or $800,000 in a targeted employment area or infrastructure project)

• They create and/or maintain at least 10 permanent full-time jobs to be filled by U.S. workers

Pros and cons of the investor green card

Like every green card option, the EB-5 immigrant investor visa comes with benefits and challenges.

Investor green card pros

• No need for sponsors or specific skills: Unlike any other green card categories, the EB-5 visa has no sponsorship requirements, meaning that neither a spouse, family member nor employer needs to sponsor the applicant. And unlike many other employment-based visas, investors aren’t required to have any “exceptional” knowledge, skill set or experience.

• Citizens of any country can apply: Eligibility isn’t limited to nationalities from specific treaty countries. 

• Relatives receive benefits: Residency benefits from this green card are simultaneously given to qualified immediate relatives—spouse and unmarried children under 21—of the green card applicant. At first, the applicant and their immediate relatives receive a two-year conditional residence. Following that, they’re eligible for a 10-year permanent residence, and later, citizenship.

• Investors have the chance to make important business decisions for themselves throughout the process: Investors are able to choose where in the U.S. they’d like to invest their capital, provided they play an active role in the business and fulfill other investment requirements (detailed below). After three years, investors have the opportunity to work for another company or choose another outlet for their time and resources. 

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Investor green card cons

There are two main downsides to the immigrant investor program: 

• High threshold for approval: There are rigorous requirements for the EB-5 green card, and meeting these requirements isn’t easy.

• Home country limitations: Although immigration law itself doesn’t highlight or blacklist any specific countries, the USCIS office may still use your home country as a deciding factor for your visa approval. For example, it may be difficult to obtain an EB-5 green card if you’re applying from a country with a known history of fraud.

Requirements for the EB-5 immigrant investor program

Foreign investors looking to acquire a green card through investment must meet a minimum investment requirement, as well as create a certain amount of permanent full-time jobs. 

Capital investment

To be eligible for an EB-5 investor visa, foreign nationals must meet a certain investment amount, which is determined by the fair market value. The investment amount also depends on whether the investment is intended for a targeted employment area (an area with high unemployment rates and/or an urban area). For the targeted employment area (TEA) to qualify, the unemployment rate should be at least 150 percent more than the national average.

As of March 2022, EB-5 visa recipients must invest at least $1,050,000 in standard commercial areas or $800,000 if the project occurs in a TEA. (For any visa petitions filed before March 15, 2022, these amounts are $1,000,000 and $500,000, respectively.)

Besides the capital investment amount, other factors qualify an investment as eligible for an EB-5 visa.

First, investments must be made in commercial enterprises that were created after November 29, 1990. If a business was created on or before that date, in order for it to qualify, one of the following two criteria must be met:

• The investor must restructure or reorganize the existing business
• The investor must expand the business by increasing either the net worth of the company or the number of employees by at least 40 percent

Second, the commercial enterprise must be for-profit and be one of the following types of business: 

• Corporation 
• Joint venture
• Business trust
• Sole proprietorship
• Holding company 
• Partnership (limited or general)
• Limited liability company
• Other publicly or privately owned entity

Noncommercial activity—such as owning and operating a personal residence—doesn’t qualify for green card investment. 

Third, in addition to direct investment in qualifying commercial enterprises, investors can invest through regional centers designated by USCIS to promote economic growth. These investments may go either directly to businesses or to infrastructure projects. The capital investment itself can be given in the form of: 

• Cash 
• Equipment 
• Inventory
• Other property 
• Secured debt

The green card investor must be able to prove that they’re the legal owners of the capital being invested. In some circumstances, capital can also include a promise to pay in the form of a promissory note. 

Job creation

The investment of the visa applicant must be sufficient to create or maintain at least 10 full-time permanent positions for qualifying U.S. workers. 

These positions are required to have a minimum of 35 working hours per week. Job sharing arrangements where two or more workers share a full-time position that meets this weekly hour minimum count as full-time employment, whereas combinations of part-time positions don’t, even if together they meet the hourly requirement. 

Intermittent, temporary, seasonal or transient jobs don’t count as permanent, full-time jobs. However, if a job is expected to last at least two years, it’s generally not considered to fall under one of the above categories. 

Regional center investments have the option to either create jobs directly (where the company receiving the investment is the employer) or indirectly (where new jobs are created as a result of business activities). A maximum of 90 percent of the job creation visa requirement can be met through indirect means. 

Commercial enterprises receiving investments outside of regional centers, however, can only generate the minimum of 10 jobs through direct creation. 

Some provisions are made for “troubled businesses”, which are businesses that have existed for at least two years and have experienced at least a 20-percent net loss within the one to two years prior to filing the visa application. In these cases, investors can instead prove that they’ll maintain the pre-investment number of employees for at least two years.

How to apply for a green card through investment

The first step in applying for the EB-5 investor green card is to file your Form I-526 (Immigrant Petition by Standalone Investor) or Form I-526E (Immigrant Petition by Regional Center Investor) if investing in a regional center. Together with this form, you must provide sufficient evidence that: 

• You’ve invested in a for-profit venture according to the criteria for capital investments
• The area in which you’ve invested is a TEA (if you’re investing in a regional center)
• You’ll be involved in the business as a manager
• The new business will require and/or save 10 full-time positions according to the criteria for job creation
• The pre-investment number of employees won’t decrease in the two years following the petition (in the case of troubled businesses)

On average, it takes about four to five years (or two to six months in expedited cases) for this petition to be processed by USCIS.

Once your Form I-526 or I-526E is approved, you need to begin the actual green card application process. The steps you take depend on whether or not you’re located in the United States. 

For applicants living inside the U.S.: 

1. File Form I-485 (which adjusts your status from a nonimmigrant to permanent resident) immediately after Form I-526 approval. You also need to pay a filing fee and a biometrics fee. Currently, these are $1,140, and $85. It’s recommended to work with an immigration attorney to ensure everything is properly filled out, completed and submitted.
2. You’ll most likely (although not always) need to attend an interview, during which you may be requested to bring additional supporting documents such as a birth certificate and passport.

For applicants living outside of the U.S.: 

1. File Form DS-260 (Application for Immigrant Visa and Alien Registration) as a part of consular processing for conditional residency. It’s also recommended to file this form with the help of an immigration attorney.
2. Get a medical exam.
3. Attend an interview at the U.S. consulate or embassy in your home country, bringing with you supporting documentation as needed.

If either form is approved, you—and any family members applying for a green card with you—will receive a two-year conditional green card. This conditional green card entitles you to live and work in the U.S. Under the terms of this visa, you can live no more than one year outside of the U.S. (or you’ll need to obtain a re-entry permit). 

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The final step before you receive permanent residency as a green card investor is to remove the conditions from your visa. 

To do this, you need to file Form I-829 (Petition by Investor to Remove Conditions on Permanent Residence Status) within the 90-day period before your conditional green card expires. It’s important to file on time; otherwise, you risk being denied your permanent residency. 

Form I-829 is usually filed by an immigration attorney and comes with a filing fee (currently $3,750) and a biometrics fee (currently $85).

To accompany this form, you need to provide the following documentation:

• Conditional green card
• Evidence that a commercial enterprise was created
• Documentation that a New Commercial Enterprise (NCE) received the petitioner’s capital
• Documentation showing the business was maintained for the entire two-year conditional residency period
• Proof (payroll and tax records) that at least 10 full-time jobs were created according to the business plan 
• Biometric information (fingerprints, photograph, signature)
• Legal documentation of petitioner’s criminal history (if applicable)

If the Form I-829 is approved, you, your spouse and your unmarried children under 21 will receive permanent resident green cards that can be renewed every 10 years. After five years in this permanent resident status, you’ll also be eligible to apply for U.S. citizenship, in most cases.

Talk to an immigration attorney

Applying for an EB-5 visa is different from any other immigration visa process, since it requires compliance with both immigration law and Securities Exchange Commission (SEC) regulations. Because you need to navigate inevitable complexities to successfully receive an investor green card, working with an experienced EB-5 immigration attorney can be a game-changing advantage throughout the process. 

However, not every attorney may be relevant or experienced for your needs. Some of the most important qualities to keep in mind while choosing your immigration attorney are: 

• Understanding of both business and immigration law: The EB-5 immigration visa is unique because of its overlap between national business regulations and immigration law. An experienced EB-5 attorney should have comprehensive knowledge of both and understand that the primary focus for their representation is to help the investor prepare and file the EB-5 petition successfully.

• EB-5 experience: Look for an attorney who understands the complex history of the EB-5 visa and has a proven success rate for filing. The support of an attorney who’s only occasionally filed the EB-5 application will be very different from one who’s filed multiple on a weekly basis for many years. 

• Country experience: EB-5 attorneys don’t need to be specialists in the entire planet’s national tax, financial, banking, real estate and criminal laws, but working with an attorney who has successfully filed EB-5 petitions on behalf of people from your home country multiple times can play a role in increasing your own chance of success. Filing the EB-5 petition requires your attorney to have enough knowledge about local documentation and laws to navigate the landscape there and in the U.S.

Regional center representation: Be aware of working with attorneys who also represent regional centers. At the end of the day, filing the EB-5 petition is a complex process, and you want an unbiased and confidential relationship with an attorney fully on your side. Many times, attorneys who work with regional centers receive referrals for new clients from them. In turn, they may have an interest in guiding their clients to invest in these centers, whether or not they have good projects, a good reputation and a good return on investment. This may lead to conflicts of interest.