EB-5 Green card to USA

Eb-5 is one the employments based preference category visa option to immigrate to USA. The program category requires the applicant to be involved in a business/commercial enterprise that will contribute to the American Economy and create - directly or in some cases (in case of regional center projects), indirectly. The mandated minimum investment is USD 1,000,000 (one million dollars), exception being investments in the rural target employment areas, where it can be USD 500,000.

EB-5 Visa: Case Processing Procedures
I- For applicants having lawful non-immigrant status within USA and staying in USA

• The applicant first makes a qualifying investment
• The applicant files a Form I-526 petition (and supporting documents) with USCIS.
• On approval of Form I-526, the applicant files a Form I-485 (Application to Register Permanent Residence or Adjust Status).
• Upon approval of the Form I-485, the applicant is granted a conditional lawful permanent resident status, which is valid for two years.
• Approximately 21 months later, the applicant must file a Form I-829 to remove the conditional status.
• The applicant must provide supporting documents to establish that they have satisfied all EB-5 qualifying conditions.
• Upon approval, a new ten-year unconditional green card is issued.

II- For applicants outside the United States

• The applicant first makes a qualifying investment
• The applicant files a Form I-526 petition (and supporting documents) with USCIS.
• The U.S. Department of State’s National Visa Center process the EB-5 immigrant visa through the local U.S. consular post with jurisdiction over the place of residence.
• The applicant uses the EB-5 immigrant visa to enter the United States, which commences the two-year conditional lawful permanent resident status.
• Approximately 21 months later, the applicant must file a Form I-829 to remove the conditional status.
• The applicant must provide supporting documents to establish that they have satisfied all EB-5 qualifying conditions.
• Upon approval, a new ten-year unconditional green card is issued.

EB-5 Visa: Key features:

Active Investment: EB-5 program is expected to create proven employment that is generated through a viable and registered commercial enterprise. The EB-5 regulations require involvement in management or policy making.

Timing of investment: EB-5 case procedures requires an investor to FIRST make a qualifying investment, and then file a Form I-526 petition (and supporting documents) with USCIS. The applicant must thus be prepared for situations where - if his application is denied - he would have incurred irrecoverable expenses on foreign exchange transfer and then getting the investment returned. He might also have disposed off some valuable asset to arrange liquid funds in the first place and would be required to look for new investment assets. He should factor in expenses and costs and losses that he might incur while going through sale and purchase of assets. From the time that he makes the investments and time he receives the money back, he will need to factor in the lost interest in the process. In addition, he would loose the administrative fee - normally around USD 50000 that is charged by the commercial enterprise towards processing of his application.

Conditional green Card: To start with the applicant will only get a two year conditional lawful permanent residence status. During the interim period he should be able to prove that the commercial enterprise in which his funds were invested met the conditions- especially related to creation of 10 new jobs on an ongoing basis. Should he not be able to meet the conditions, he will be asked to leave the country. This uncertainty about the likely continuity of the status is one of the key reasons why less than 10% of the annual quote for EB-5 category is used every year.

Costs, extent of loss or opportunity of profit: The investment under the EB-5 program is an actual investment in a running commercial enterprise. The investment is subject to normal business situations and the enterprise may or may not make money. If the business looses money, the investor will loose his share of money as well. There is no limit to the amount of money that the business and therefore he may loose. Of course, he will make money if the business makes money. In such a case, there is no limit on the amount of money that the business and therefore he may make. The bottom line is that the investor applicant must be prepared to either of the situations.

Administrative fee: In case of EB-5, Majority of the regional center investments require the applicant to pay an administrative fee of (normally) around USD 50,000. This is besides the investment of USD 500,000. In case the application is refused, for any reason, major part of this fee and in some case the entire fee paid under this head is non-refundable.

Dependent definition: USA permits dependent less than 21 years to be considered as part of the application under EB-5.

EB-5 Visa: Key Benefits

The status permits the green card holders - Qualifying Investors, spouse and children under 21 to live and work - permanently and anywhere in USA.

• This program is used by professionals, businessmen, people planning their children's education and attend US colleges and Universities and seeking a good quality of life or seeking retirement in the USA.
• The EB-5 visa is a highly flexible program and permits the investor to what he wants, including seeking employment in USA.
• Subject to conditions that one must meet as part of application of Citizenship, after five years, the investor and their family are permitted to make such an application.

EB-5 Visa: Key Benefits

Congress allocates approximately 10,000 immigrant visas per year to the EB-5 category (including derivative visas for the spouses and minor children of investors), but less than 1,000 visas are used annually. Between FY 1998 and FY 2008, USCIS had an average approval rate of approximately 44 percent. Besides many situations- described above in the features list, following needs attention of the prospective applicants

• Documents provided by the applicants must be able to show substantive evidence of Source of funds that formed basis of investment and path of funds to the bank account of the commercial enterprise in which investment is being made. Meeting these key requirements is a major challenge as the case officers go by past precedents and their own discretion.
• Doing transfer of USD 500,000 through official banking channels especially in case of developing economies can be quite a challenging task. The transfer is normally required out of personal and not business accounts. One must be able to show that funds so transferred has been effectively earned by the individual or have been drawn from legitimate sources that are effectively owned by the applicant. Doing so in context of developing economies can be quite a difficult task if past tax returns do not reveal the claimed ownership of funds or legitimate sources from such funds are withdrawn.
• Post visa approval, the key removal conditions relates to generation of at least 10 year-around new jobs, by the commercial enterprise in which the investment has been made. These jobs can only be offered to U.S. citizens, lawful permanent residents and those lawfully admitted to the United States, such as asylums, refugees, conditional residents. Also excluded are the investor, the investor’s spouse and the investor’s children and independent contractors.
• A full-time job means one that requires at least 35 hours each week to fulfil and a combination of part-time jobs objective being creation of full time job- is not permitted.
• The precedents used by case officers as regards removal of this condition- are highly subjective and element of discretion applied by them is very high.
• However good the return on investment may be, if a particular project fails to create the required number of jobs there is the real risk that the conditional visa could be revoked. And that is not a situation that ANY investor would like to face.
• Choosing the right regional centre project is a major challenge. Projects that are new and do not have past precedents are often the riskiest. The projects that are old have difficulty in proving the condition as regards creation of 10 new jobs