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44 Frequently Asked Questions (FAQ) About EB-5

Timeline For EB-5 Processing

Participating in the U.S. EB-5 Immigrant Investor program involves a complex series of petitions and documentary evidence that requires the help of an immigration attorney experienced in that specific area. The following Timeline chart and Q&A/FAQ section will cover the most commonly asked questions about this program. 

Do not consider the following as legal advice. Please consult a knowledgeable attorney for advice that pertains to your personal situation.  Please note that the rules and regulations in this area of law change frequently. 

1. What is USCIS?

USCIS is the United States Citizenship and Immigration Services, a branch of the US Department of Homeland Security, in charge of US Immigration programs. Other Immigration related US agencies include Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), also under the Department of Homeland Security. Additionally involved are the National Visa Center and US Embassies and Consulates across the world under the US State Department, and the Executive Office for Immigration Review under the US Justice Department. The Office of Foreign Asset Controls (OFAC) that regulates certain immigrant financial transactions is under the control of the US Treasury Department. United States Immigration laws are Federal Laws and not controlled by individual States. 


2. How do I start the process of getting the EB-5 Green Card?

You begin the process by contacting an EB-5 immigration attorney who will review your background and discuss how the program may apply to you. Please contact the JQK Law Firm at (310) 582-5904, info@jqklaw.com or visit our website at www.JQKLaw.com to initiate the EB-5 program process.

 
3. What is the EB-5 Immigrant Investors program, Visa and/or Green Card?

EB-5 is the Employment-Based Immigration Fifth Preference, which allows an immigrant to receive permanent residency (Green Card/non-immigrant status) in the US. (http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor)

Unlike other USCIS Permanent Employment based programs, the immigrant is not receiving employment, but is actually responsible for creating jobs in the US. The program was established in 1990 by the Congress to stimulate the American economy by creating US jobs through investments made by foreign immigrants. The immigrant investor can create jobs by investing and controlling their own company, or by investing in licensed companies called “Regional Centers.”

 
4. What are the EB-5 requirements?

The program requires the investment of capital in a US company that will create or preserve 10 full-time US jobs in a set period of time. To preserve jobs, the investment must be made in a troubled business.
 

5. What is a troubled business?

A troubled business is one that has been around for at least 2 years, and has a net loss in the last 1-2 years before the immigrant investor’s initial EB-5 application. The loss must be 20% or more of the businesses net worth prior to the loss.

 
6. How much do I have to invest for EB-5?

The basic investment is $500,000 in a company located in a rural or targeted employment area (T.E.A.) or $1,000,000 in any other company.

 
7. What is Targeted Employment Area (T.E.A) or a Rural Area?

A T.E.A. is a set location that has unemployment levels of at least 150% of the national average unemployment rate. A rural area is an area outside of a metropolitan statistical area or outside the boundary of a city or town having a population of 20,000 or more according to census data.


8. What kind of Jobs do I have to create in the EB-5 Program?

The jobs created through the EB-5 program have to be full time positions (35 hours a week) employing US Citizens or Permanent Residents. Regional Centers can also include the number of indirect jobs that were created. The immigrant investor cannot include jobs employing themselves or their family members to the number of jobs necessary for the program. If the jobs are being “preserved” they must be in a troubled business.


9. What kind of Green Card (Residency) do I get with the EB-5 Program?

After approval of the initial EB-5 Petition and Adjustment of Status through USCIS or Green Card approval by the US Embassy, the Immigrant Investor receives a Conditional Green card. This Green Card functions the same as a Permanent Green Card, except that the immigrant must apply to have the conditions removed after 2 or 2.5 years. The conditions are removed once the EB-5 Petitioner proves that the jobs required by the program have been created. The immigrant can eventually apply for Naturalization (Citizenship).

 
10. How do I have the EB-5 Conditional Green Card conditions removed to get a Permanent Green Card?

21 months after the approval of the original Conditional Green Card Petition, the immigrant files to have the conditions of his Green Card removed. This process requires the filing of a Petition showing evidence of the jobs created. Once that application is approved, a Permanent Green Card is issued by USCIS.


11. What is a Regional Center in the EB-5 program context?

A Regional Center is a company that has requested and received this title/license from the USCIS, granting it the ability to accept foreign immigrant funds as part of the EB-5 program. Please note that receiving this title/license does not mean that the company has been thoroughly reviewed by the US Government or that it is a safe investment.

 
12. How do I get Regional Center Certification as part of the EB-5 program?


A company can get Regional Center Certification by applying for it with the US Government. An application includes a comprehensive business plan, proof of licenses and existence of the company, required securities information, and several other documents.


13. Do I get my EB-5 investment money back?

The goal of the EB-5 program for immigrant investors is primarily to obtain a Green Card. The immigrant may be able to have their investment funds returned to them, but that is based on the same risks associated with any market-based business investment. The pathway towards eventual return of the funds is based on the contract with the Regional Center. For Direct Investment, the Petitioner can sell the company or their shares after receiving the Permanent Green Card.

Please note that it is against the EB-5 program rules to guarantee the return of any funds. All investment funds must be at risk. The guaranteed return of any investment will cause a denial in the EB-5 application or rescinding of the Green Card.

 
14. What are the risks in investing as part of the in EB-5 program?


There are two sets of risks for the immigrant investors. First, just as in any business investment, there is the risk of losing the investment capital. The second risk is related to the immigration goals of the immigrant. They may not be able to obtain a Conditional Green Card or they may not be able to remove the conditions of the Green Card. This is due to the inability to create the necessary jobs or problems related to the application such as having a bad business plan or improper source of funds documentation.


15. What is Direct Investment? Can I start my own company for EB-5?

An immigrant investor can also invest in their own company to create the required jobs and receive the Green Card.  This is called Direct Investment.

 
16. Can my family also immigrate using the EB-5 Green Card?

The immigrant investor can obtain Green Cards for their spouse and unmarried children under the age of 21. It is important that the application be filed before the children reach the age of 21 and age out of the program. Please note the Child Status Protection Act (CSPA) rules can apply here.


17. Can I work with the EB-5 Green Card?

Once you receive the Conditional Green Card you will have the ability to work in the United States as long as your Green Card Status is valid.
 

18. Do I need an OFAC License for EB-5 Green Card?


Some countries may require obtaining an Office of Foreign Asset Control (OFAC) License to transfer funds to the United States. These rules have been alleviated to a certain extent for example for some transfer of funds from Iran. However, regulations are still in place and proper methods must be followed to establish legal transfers. Contact an attorney to learn more about this issue.

 
19. How long does the application take to be approved? How long does it take to get the EB-5 Green Card?

Due to the high volume of applications, processing times for EB-5 Petitions have increased in the recent years. The initial application process can take from 6 to 14 months depending on the application type and country or origin.

Taking the document collection phase, USCIS processing and adjustment of status in the US, or through the US Embassy all together, the total time to get the Conditional Green Card can take 1.5 years.


20. Can the EB-5 investment funds/money be given as a gift? Do I need to have earned the money myself?


Yes, the EB-5 investment can be given to the investor as a gift. However, the regular Source of Funds rules apply to that gift. Moreover, the gift must be unconditional and not required to be paid back.

 
21. What are “Source of Funds” for EB-5?

The Source of Funds refers to USCIS requirements that the EB-5 immigrant investment funds originate from lawful sources. The immigrant must prove the money was legally earned and legally transferred to the US. This aspect of the application requires a lot of documentation. A competent EB-5 Immigration Attorney will help you organize these documents.


22. Where can I find official information about the EB-5 Law?

You can visit the USCIS website section for EB-5: http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor.

 
23. What are the EB-5 legal/lawyer fees?

The filing fee for the initial petition is $1,500. The filing fee for the Petition to remove Green Card conditions is $3,835. Legal fees vary based on the type of application. For example, whether there is Direct Investment or investment in a Regional Center. This can range from $20,000 to $50,000.00 or more. There can be additional legal and filing fees for Adjustment of Status or National Visa Center/Embassy processing. There may also be additional translations fees and/or other costs associated with the application.


24. Can two immigrants invest in an EB-5 company together?

Yes, two immigrant investors can invest in a Regional Center together, or join to form a Direct Investment company. However, proper agreements are required. Consulting with an EB-5 Immigration Attorney before starting this process is recommended.


25. Where can I see a list of Regional Centers?


You can find a list of Regional Centers on the USCIS website: http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/immigrant-investor-regional-centers.


26. Is the investment guaranteed in the EB-5 Regional Center?

No. Your application will be denied or your green card will be rescinded if any of the investment funds have guarantees of return in any way.

 
27. What are the benefits of investing in a Regional Center as opposed to starting my own business?

Foreign investors may not have the knowledge, experience and language abilities to run a business in the United States. A Regional Center allows them to not be fully engaged in an ongoing US business, and allows them to focus on other areas. Moreover, Regional Centers can include “indirect jobs” they created as part of the job creation requirement.


28. Am I guaranteed a Green Card through EB-5?

No, it is illegal for any attorney to guarantee your case. Moreover, you may not be able to create the requisite number of jobs, or your application may have errors that cause it to be denied.

 
29. When can I apply for Citizenship (Naturalization) after getting EB-5 Green Card?

Once conditions of your conditional Green Card are removed and it becomes a Permanent Green Card, you can file for Naturalization according to the standard USCIS regulations.

 
30. Can I use income from the EB-5 business as investment funds?

No, all investment funds have to be provided separately as part of the initial investment. Interest or other earnings of the company can be reinvested in the company, but those funds cannot be used as part of the EB-5 investment capital. However, some funds that are earned can be reinvested in the if there is a long-term delay before petition for the visa.


31. Can I borrow money for the EB-5 investment?

Yes, but the money/capital has to be secured by an asset owned by the immigrant investor and/or the investor must be personally indebted. A complete documentation of that transaction must be provided.


32. How much documentation will I need for the EB-5 investment?

There are a lot of personal and financial documents required for a successful EB-5 petition. Your attorney will review your case and background to guide you as to the applicable requirements.

 
33. Are EB-5 Green Cards available to people from any country in the world?

Yes, there are no restrictions to anyone. However, financial transaction laws may make it more difficult from some countries. Please note that at this point all visa numbers are current for EB-5 Petitioners, but that can change in time for countries such as China.


34. What are the EB-5 laws?

The primary legislation is under INA Act 203(b)(5) and explained further in 4 precedent Court rulings by the Administrative Appeals Office (AAO): Matter of Soffici (June 30, 1998), Matter of Izumii (July 13, 1998), Matter of Ho (July 31, 1998); and Matter of Hsiung (July 31, 1998).


35. Can I, as an immigrant investor, work for the EB-5 company I created? What about my family?


Yes, you can work for the EB-5 company. However, that employment will not count towards the total number of jobs created for the program.

 
36. How many EB-5 Visas are issued each year?

A total of 10,000 EB-5 visas are available, but a lesser number is issued each year.

 
37. What is the difference between an EB-5 Visa and an E-2 Visa?


An E-2 Visa is a non-immigrant Visa that requires the immigrant to actively participate in the U.S. business to keep a temporary U.S. non-immigrant Visa. The EB-5 Visa leads to Permanent Residency and does not require a continued business investment after Permanent Residency (Green Card) is issued.


38. Do I need an educational or college degree for an EB-5 Visa/Green Card?

No, an EB-5 investor does not need any educational or technical background.

 
39. Do I require prior business experience for an EB-5 Visa/Green Card?

No, an EB-5 investor does not need any business experience. Although, experience can help in decisions related to choosing a Regional Center, or in creating the Direct Investment Company.

 
40. Does an EB-5 Immigrant Investor need to be able to speak English?

No, there is no requirement that the EB-5 investor speak English. However, knowledge of the language will help in business decisions related to the investment.

 
41. What are some of the most common reasons for the denial or rejection of the EB-5 Visa/Green Card applications?


EB-5 applications are commonly rejected due to having an incomplete business plan, lack of job creation, improperly sourced investment funds and the failure to have all the investment funds at risk.


42. Can I invest in real estate, or buy a house to get an EB-5 Visa/Green Card?

No, the EB-5 program requires investment in a company that will create full-time jobs. The purchase of real estate will not accomplish that requirement.
 

43. Can I stay in the US until my EB-5 application/petition is approved?

If you have a valid U.S. non-immigrant status you can remain in the U.S. However, the petition may take longer to adjudicate than the non-immigrant Visa is valid. Please note that applying for an EB-5 Visa indicates “immigrant intent” which can potentially cause the denial of the immigrants’ entry into the U.S. or denial of a non-immigrant Visa after submitting the petition. Please consult our law firm to learn more about how this affects your personal immigration status.

 
44. What are the tax consequences of an EB-5 visa?

EB-5 Investors must pay the applicable taxes on any income they earn from their investment. Moreover, upon becoming a US Resident (Green Card Holder) they are subject to US tax laws. 

EB-5 Investment Investory Visa & Green Cards