In order to understand what an EB-3 visa is, you must first understand the basics of United States immigration law. Immigration laws are the set of federal laws that regulate how a person from outside the United States may qualify for a visa. Immigration laws also deal with the circumstances in which an individual can be deported.
It is important to note that there are many different kinds of temporary and permanent visas that an individual may apply for when attempting to enter the United States. As such, depending on the exact purpose of your entry, there is typically a visa available that fits your situation.
One such visa that a foreign national looking to enter the United States under is an EB-5 investor visa. The EB-5 visa is an immigrant investor program that provides a pathway for foreign nationals to become green card holders if they meet certain criteria.
The following article discusses the basics of an EB-5 visa, what an EB-5 does, as well as the process for applying for the EB-5 visa program.
What Is an EB-5 Visa?
According to United States Citizenship and Immigration Services (“USCIS”), an EB-5 visa is an employment-based immigrant visa category that allows foreign nationals to live in the United States permanently.
In fact, Congress created the EB-5 Program in 1990 to stimulate the United States economy through job creation and capital investment by foreign investors. Then in 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program.
That program then sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers that are approved by USCIS, which are based on proposals for promoting economic growth.
Who Is Eligible for an EB-5 Visa?
It is important to note that USCIS is the federal agency that administers the EB-5 Program. As such, they are the agency that sets the rules regarding who is and who is not eligible for the EB-5 visa program.
Under the EB-5 visa program, investors, including their spouses and unmarried children under the age of 21, are eligible to apply for lawful permanent residence (i.e. become a Green Card holder) if they:
- Make the necessary investment in a commercial enterprise in the United States in accordance with USCIS rules
- Plan to create or preserve 10 permanent full-time jobs for qualified United States workers
What Are the Capital Investment Requirements for the EB-5 Visa Program?
One of the main requirements for the EB-5 Visa program is to make a necessary investment in commercial enterprise. According to USCIS the capital investment requirements for the EB-5 visa program are:
- Standard Investment: The minimum investment amount in a new commercial enterprise is $1,050,000 million
- Targeted Employment Area (“TEA”): If the investment is made in a rural area or an area with high unemployment (i.e. a TEA), the minimum investment is reduced to $800,000
- At-Risk Investment: The invested capital must be at risk for the purpose of generating a return on the capital placed at risk. In other words, there can be no guarantees of return or redemption of the investment
- Job Creation: The investment must create or preserve at least 10 full-time jobs for qualifying United States workers within two years of the investor’s admission to the United States as a Conditional Permanent Resident
All of the above requirements are designed to ensure that the investment contributes to the United States economy and creates employment opportunities. It is important to note that the exact amount of capital investment will be dependent on the current amount dictated by USCIS. As such, it is important to consult with USCIS regarding the current capital investment requirements.
It is important to note that beginning October 1, 2024, and for every five years thereafter, the qualifying investment amount will be automatically adjusted by USCIS. This adjustment will generally be based on the United States city average cumulative annual percentage change in the unadjusted All Items Consumer Price Index for All Urban Consumers (“CPI-U”).
What Else Should I Know about the Job Creation Requirement?
According to USCIS, for 2024, the EB-5 visa program has specific job creation requirements that investors must meet, which include:
- Each EB-5 investor must create or preserve at least 10 full-time jobs for qualifying United States workers
- All of the created jobs must be full-time, which means at least 35 hours per week
- The jobs must be created within a reasonable time, typically interpreted as within two years of the investor’s admission to the United States as a conditional permanent resident
- The jobs created can be either direct (i.e. created directly by the commercial enterprise) or indirect (i.e. created as a result of the investment in the regional center program)
- Finally, investors must provide evidence of job creation when filing the I-829 petition to remove the conditions on their Green Card
It is important to note that independent contractors do not qualify as employees for purposes of qualifying for the EB-5 visa program. Additionally, if the employees have already been hired, the EB-5 visa applicant’s petition must be accompanied by supporting documentation, such as photocopies of business tax records or I-9 forms that confirm the existence of 10 qualifying employees.
What Is the Application Process for the EB-5 Visa Program?
It is important to note that the exact application process for the EB-5 visa program will depend on where you are at in the process.
Generally speaking, the application process for the EB-5 visa program will proceed as follows:
- First you should ensure that the EB-5 visa is the best option for you based on your purposes of entry into the United States
- After you confirm that EB-5 is the best visa option, you should then choose a suitable EB-5 investment project, which can be a direct investment in a new commercial enterprise or through a USCIS-designated regional center
- Then you must invest the required capital amount ($800,000 for TEA or $1,050,000 for non-TEA) into the chosen project and ensure that your investment is at risk and meets all EB-5 requirements from USCIS
- You should then fill out and submit Form I-526, Immigrant Petition by Alien Investor, to USCIS, which will ensure that you have made the investment and that your investment meets all program requirements
- If your I-526 petition is approved, you can then apply for a conditional Green Card, which will involve either filing Form I-485 for adjustment of status if you are in the United States, or applying for an immigrant visa at a United States consulate if you are currently abroad
- If you are approved, you and your eligible family members will receive a conditional Green Card, which will remain valid for two years
- Within 90 days before your two-year conditional green card period ends, you may file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status.
- This form will help you provide evidence that your investment has been sustained and that the job creation requirements have been met within the applicable period
- If the final Form I-829 is approved, the conditions on your Green Card will be removed, and you will then receive a permanent Green Card.
How Long Does the EB-5 Visa Process Take?
Once again, the exact duration of the EB-5 process will depend on where you are at in the process. As such, the processing time for an EB-5 visa can vary, but in general the I-526 step will take anywhere between 6 months to two years.
Then an adjustment of status will take between 6 months to two years if you are inside the United States, or the consular processing will take between 6 months to one year if you are outside the United States.
After receiving a condition Green Card, the I-829 process will take between 22 months and up to 4 years. As such, the overall process from initial investment to receiving your permanent Green Card can take anywhere between one year to more than four years. It is important to note any mistakes made along the way can significantly impact your ability to move forward in the process.
Do I Need a Lawyer for Help With an EB-3 Visa?
As can be seen, the process for applying for and obtaining an EB-5 visa is not always a straightforward process. As such, if you have any questions regarding the EB-5 visa program, it is in your best interest to consult with a local immigration lawyer.
LegalMatch can assist you in setting up an initial consultation with an experienced immigration attorney in your area. An immigration lawyer can help inform you of the process of obtaining the EB-5 visa. An attorney can also answer any questions you may have regarding the investment or job creation requirements.
Additionally, an attorney can help guide you through the application process. Finally, an immigration lawyer will also be able to represent you in court, as needed, should any other legal issues arise or should your application be denied.
