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Understanding the EB5 System

Written By The Shapiro Law Group on January 25, 2016

Congress created the EB-5 Program in 1990 to promote economic growth and job creation in the United States. This system allows immigrant entrepreneurs to apply for green cards in return for investing in a new commercial enterprise that creates or saves a minimum of 10 full-time jobs. Currently, there is a limit of 10,000 visas allotted each year to the EB-5 Program. However, to be approved for an EB-5 visa, the alien investor must first file Form I-526 to apply to the program.

Eligibility Requirements for EB-5

When filing the I-526 Petition for an Alien Entrepreneur, the applicant must provide evidence that they have made an investment in a new “for profit” commercial enterprise. The organizational structure of the enterprise is not limited to one specific business model. It could be a sole proprietorship, partnership, joint venture, corporation or other type of model.

The applicant will need to have to have invested or be in the process of investing a minimum amount of $500,000 or $1 million, depending upon whether the enterprise is located within a targeted employment area (TEA). The investor is required to provide evidence that the money invested has been obtained through legal channels. Acceptable evidence includes both personal and business tax returns for the past five years, foreign business registration records, or court documents regarding civil or criminal proceedings against the investor pertaining to money judgments for the past 15 years.

To be most effective with meeting the goals for job creation, the commercial enterprise should be established and doing most of its business in a TEA. These areas are generally located in metropolitan or rural areas with unemployment rates that are at least 150 percent of the national average, such as Chicago. The enterprise may also be set up within a rural area, located outside a metropolitan area with a population great than 20,000, where residents may also benefit from job creation. Not all states maintain a list of TEAs; therefore, it is often the onus of the applicant to gather information to locate a TEA. The entrepreneur may also submit a petition to locate their new enterprise in a non-TEA by submitting relevant information gather from federal or state statistics for determination.

The business will need to create or in the case of an existing business, preserve at least 10 full-time jobs for a minimum of two years. In order to receive credit for preserving jobs, the enterprise invested in must have been a troubled business. Jobs held by the investor, their spouse or their children may not count toward the requirement of a minimum of 10 jobs being created. Additionally, temporary workers or those who are not authorized to work in this country may not be included within the required number of created jobs.

Applying for EB-5 Green Card

Once the applicant receives approval for Form I-526, the process moves forward. If the applicant is already legally within the United States, they will be required to file Form I-485, which is an Application to Register Permanent Residence with the U.S. Department of State. Approval of I-485 will grant the investor and their derivative family members conditional permanent residence for two years. Derivative family members only include the entrepreneur’s spouse and any unmarried children under 21 years old. If the applicant is not already living within the United States, they will need to file DS-230 or DS-260, Application for Immigration Visa and Alien Registration. This will allow them to obtain the necessary EB-5 visa needed for the two-year conditional permanent residence for the investor and their family.

As the two-year anniversary approaches of the granting of the EB-5 visa, the entrepreneur is required to file Form I-829, Petition by Entrepreneur to Remove Conditions within 90 days of the visa’s expiration date. They will need to provide supporting evidence, along with their current home address that they are in compliance with the requirements of the EB-5 Program.Proving their financial investment in the enterprise requires that financial and business documents, such as bank statements, business licenses, and tax returns be submitted. To prove that the enterprise has created or preserved a minimum of 10 jobs, the applicant will need to provide documents such as payroll records, employee I-9 forms, and tax documents regarding payroll.

Once the I-829 has been approved, the conditions for permanent residence will be lifted from the entrepreneur’s and his family’s green card status. This will allow them to legally work or attend college in the United States.

Status of the EB-5 Program

Existing requirements and EB-5 visa allotment will continue to remain in force through September 2016. Currently, there has been some controversy concerning the need for reform of the EB-5 program regarding improprieties and issues surrounding the accountability of regional centers. Immigration attorneys in the Chicago area will continue to keep watch on potential changes to the EB-5 program as they continue to develop.