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EB5 IMMIGRANT INVESTOR VISA
2023 - LEGAL UPDATES

How do I get the EB5 Immigrant Investor Visa?

You have two alternatives to obtain the EB5 Immigrant Investor Visa and then the permanent residence (i.e. Green Card) through investing: Invest $1,050,000 ($800,000 in Targeted Employment Areas) and create 10 new jobs; or Invest $500,000 in an already approved US Governmental Immigrant Investor Regional Center.

Number of visas issued in 2021: 19,700 (combined employment based)

Normal Processing Time: 26-61 months

Government Fees: $3,675.00

Expedited Processing: Not Available

Attorney’s Fee: $14,900.00 – 49,500 (based on project)

See if you qualify. Schedule your Initial Consultation $95.00/30 min

12 Things You Need to Know About the EB2 NIW in 2023
- Table of Contents -

1. EB5 Immigrant Investor Visa - Overview

The EB5 Immigrant Investor Visa Category confers Permanent Residence in the United States to the main applicant, their spouse, and minor children under the age of 21.

The EB5 Immigrant Investor Visa classification is divided into two subcategories or Pathways:

1. Subclass A. Independent Immigrant Investor;

2. Subclass B. Regional Center Immigrant Investor;

You can receive permanent residence in either of the 2 pathways.

Each subcategory has particular evidentiary requirements. In general terms, you need to invest a significant amount of capital and create 10 jobs. If investing in the regional center, the job creation requirement is met by the regional center in their already approved project.

2. EB5 Immigrant Investor Visa - General Requirements

The EB5 Immigrant Investor Visa category requires three main elements:

An investment of capital;
Engagement in a new commercial enterprise; and
Job creation.

3. EB5 Immigrant Investor Visa - Capital Requirements

What is the EB5 Immigrant Investor Visa Capital Required for an EB5 Immigrant Investor to obtain a green card (permanent residence)?

Capital

The word capital does not mean only cash. Instead, the broad definition of capital takes into account the many different ways in which a person can make a contribution of financial value to a business.

The immigrant investor must establish that they are the legal owner of the capital invested. Furthermore, it must demonstrate that has obtained the capital through lawful means. USCIS does not consider as capital any assets acquired directly or indirectly by unlawful means, such as criminal activity. As of May 14, 2022, gifts and loans to the investor are permitted as capital, provided certain conditions are met.

Promissory Notes

Capital can include the immigrant investor’s promise to pay (a promissory note), as long as the immigrant investor is personally and primarily liable for the promissory note debt and his or her assets adequately secure the note. Any security interest must be perfected to the extent provided for by the jurisdiction in which the asset is located. Further, the assets securing the promissory note:

Cannot include assets of the company in which the immigrant is investing.
Must be specifically identified as securing the promissory note.
Must be fully amenable to seizure by a U.S. noteholder.

The fair market value of a promissory note depends on its present value, not the value at any different time. In addition, to qualify as capital, nearly all of the money due under a promissory note must be payable within 2 years, without provisions for extensions.

Investing Indebtedness

When investing in indebtedness, an immigrant investor must demonstrate:

The immigrant investor is personally and primarily liable for the debt.
The indebtedness is secured by assets the immigrant investor owns.
The assets of the new commercial enterprise are not used to secure any of the indebtedness.

The immigrant investor must be responsible, for repaying the debt used to satisfy their minimum required investment amount.

The immigrant investor must also demonstrate that their own collateral secures the indebtedness. Further, it must demonstrate that the value of the collateral is sufficient to secure the amount of indebtedness that satisfies the immigrant investor’s minimum required investment amount. Any indebtedness secured by the immigrant investor’s assets qualifies as capital only up to the fair market value of the immigrant investor’s pledged assets.

4. EB5 Immigrant Investor Visa - Investment Requirements

What is the Investment Requirement so I can obtain an EB5 Immigrant Investor Green Card (permanent residence)?

Investment

The immigrant investor is required to invest their own capital. The petitioner must document the path of the funds to establish that the investment was made, or is actively in the process of being made, with the immigrant investor’s own funds. For petitions filed on or after March 15, 2022, the capital must be expected to remain invested for not less than 2 years.

To invest means to contribute capital. A loan from the immigrant investor to the new commercial enterprise does not count as a contribution of capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the immigrant investor and the new commercial enterprise is not a capital investment.

To qualify as an investment, the immigrant investor must actually place his or her capital at risk. The mere intent to invest is not sufficient.

Purchasing a share of a business from an existing shareholder, without more, does not qualify, since the payment goes to the former shareholder rather than to the new commercial enterprise.

Guaranteed Returns

If the immigrant investor is guaranteed a return, or a rate of return, on all or a portion of their capital, then the amount of any guaranteed return is not at risk. For the capital to be at risk, there must be a risk of loss and a chance for gain.

Additionally, if the investor is guaranteed the right to eventual ownership or use of a particular asset in consideration of the investor’s contribution of capital into the new commercial enterprise, the expected present value of the guaranteed ownership or use of such asset counts against the total amount of the investor’s capital contribution in determining how much money was placed at risk. For example, if the immigrant investor is given a right of ownership or use of real estate, the present value of that real estate is not counted as investment capital put at risk of loss.

Nothing prevents an immigrant investor from receiving a return on his or her capital in the form of a distribution of profits from the new commercial enterprise. This distribution of profits may happen during the conditional residency period and may happen before creating the required jobs. However, the distribution cannot be a portion of the investor’s minimum qualifying investment and cannot have been guaranteed to the investor.

Sole Proprietors and Funds in Bank Accounts

A standalone investor who is operating a new commercial enterprise as a sole proprietor cannot consider funds in their personal bank account as capital committed to the new commercial enterprise. Funds in a personal bank account are not necessarily committed to the new commercial enterprise. The funds must be in business bank accounts. However, even a deposit into a business account over which the petitioner exercises sole control, without more, may not satisfy the at-risk requirement.

Escrow Accounts

An immigrant investor’s money may be held in escrow until the investor has obtained conditional permanent resident status if the immediate and irrevocable release of the escrowed funds is contingent only upon:

Approval of the investor’s petition; and

Visa issuance and admission to the United States as a conditional permanent resident, or approval of the investor’s Application to Register Permanent Residence or Adjust Status.

An immigrant investor’s funds may be held in escrow within the United States to avoid any evidentiary issues that may arise with respect to issues such as significant currency fluctuations and foreign capital export restrictions.

Use of foreign escrow accounts is not prohibited as long as the petition establishes that it is more likely than not that the minimum qualifying capital investment will be transferred to the new commercial enterprise in the United States upon the investor obtaining conditional permanent resident status.

When adjudicating the immigrant investor’s petition to remove conditions, USCIS requires evidence verifying that the escrowed funds were released and that the investment was sustained in the new commercial enterprise for the period of the immigrant investor’s residence in the United States.

Deployment of Capital

Before the job creation requirement is met, a new commercial enterprise may deploy capital directly or through any financial instrument so long as applicable requirements are satisfied, including the following:

The immigrant investor must have placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk;

There must be a risk of loss and a chance for gain;

The business activity must actually be undertaken;

The full amount of the investment must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based; and

A sufficient relationship to commercial activity (namely, engagement in commerce, that is, the exchange of goods or services) exists such that the enterprise is and remains commercial.

The purchase of financial instruments traded on secondary markets generally does not satisfy these requirements because such secondary market purchases generally:

Are not related to the actual undertaking of business activity;

Do not make capital available to the job-creating business; and

Represent an activity that is solely or primarily financial rather than commercial in nature.

Further Deployment After the Job Creation Requirement is Satisfied

Once the job creation requirement has been met and the investment capital is returned or otherwise available to the new commercial enterprise, the new commercial enterprise may further deploy such capital within a reasonable amount of time in order to satisfy applicable requirements for continued eligibility.

Consistent with precedent case decisions and existing regulatory requirements, further deployment must continue to meet all applicable eligibility requirements within the framework of the initial bases of eligibility, including the same new commercial enterprise.

For example, if a new commercial enterprise associated with a regional center loaned pooled investment capital to a job-creating entity that created sufficient jobs through the construction of a residential building in a TEA, the new commercial enterprise, upon repayment of the loan that resulted in the required job creation, may generally further deploy the repaid capital anywhere in the United States or its territories (regardless of whether it would qualify as a TEA) into any commercial activity that satisfies applicable requirements such as one or more similar loans to other entities.

5. EB5 Immigrant Investor Visa - Required Amount of Investment

What is the required amount of investment to obtain the EB5 Immigrant Investor Visa to secure a Green Card (permanent residence)?

The immigrant investor must invest at least the standard minimum investment amount in capital in a new commercial enterprise that creates no fewer than 10 jobs for U.S. workers. An exception exists if the immigrant investor invests their capital in a new commercial enterprise that is principally doing business in and creates jobs in a TEA or, for regional center petitions filed on or after May 14, 2022, in an infrastructure project.

This means that the present fair market value, in U.S. dollars, of the immigrant investor’s lawfully-derived capital must be at least $1,000,000, or $500,000 if investing in a TEA for petitions filed before March 15, 2022. For petitions filed on or after March 15, 2022, those amounts are $1,050,000 or $800,000 if investing in a TEA or infrastructure project, and will automatically increase January 1, 2027, and every 5 years thereafter.

Immigrant investors may diversify their investment across a portfolio of businesses or projects, but only if the minimum investment amount is first placed in a single new commercial enterprise. In such a case, it is necessary to show how eligibility has been established (for example, the minimum investment amount, evidence of an at-risk investment, and job creation) with respect to each job-creating entity at the time of filing.

For standalone investors, the capital may be deployed into a portfolio of wholly owned businesses, so long as all capital is deployed through a single commercial enterprise comprised of a holding company and its wholly owned subsidiaries and all jobs are created directly within that commercial enterprise (in other words, through the portfolio of wholly owned subsidiaries that received the capital through the holding company).

For example, for a petition filed before March 15, 2022, based on an investment in an area in which the minimum investment amount is $1,000,000, the standalone investor can satisfy the statute by investing in a holding company that deploys $600,000 of the investment toward one subsidiary that the holding company wholly owns, and $400,000 of the investment toward another subsidiary that the holding company wholly owns. In this example, the two wholly owned subsidiaries would have to create an aggregate of 10 new jobs between them. However, a standalone investor cannot qualify by separately investing $600,000 in one commercial enterprise and $400,000 in a different commercial enterprise, since these enterprises would be separate rather than consisting of a singular commercial enterprise comprised of a holding company and its wholly-owned subsidiaries.

In the regional center context, where indirect jobs may be counted, the commercial enterprise may create jobs indirectly through multiple investments in corporate affiliates or in unrelated entities, but the regional center investor cannot qualify by investing directly in those multiple entities. Instead, the regional center investor’s capital must still be invested in a single commercial enterprise, which can then deploy that capital to multiple job-creating entities as long as the portfolio of businesses or projects can create the required number of jobs.

6. EB5 Immigrant Investor Visa - Lawful Source of Funds

What is the requirement for a Lawful Source of Funds to obtain the EB5 Immigrant Investor Visa to secure a Green Card (permanent residence)?

For Petitions Filed before May 14, 2022

The immigrant investor must demonstrate by a preponderance of the evidence that the capital invested, or actively in the process of being invested, in the new commercial enterprise was obtained through lawful means. Any assets acquired directly or indirectly by unlawful means, such as criminal activity, are not considered capital. In establishing that the capital was acquired through lawful means, the immigrant investor must provide evidence demonstrating the direct and indirect source of his or her investment capital.

As evidence of the lawful source of funds, the immigrant investor’s petition must be accompanied, as applicable, by:

Foreign business registration records;
Corporate, partnership, or any other entity in any form which has filed in any country or subdivision thereof any return described in this list, and personal tax returns, including income, franchise, property (whether real, personal, intangible), or any other tax returns of any kind filed within 5 years, with any taxing jurisdiction in or outside the United States by or on behalf of the immigrant investor;
Evidence identifying any other source(s) of capital; or
Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the immigrant investor from any court in or outside the United States within the past 15 years.

The immigrant investor is required to submit evidence identifying any other source of capital. Such evidence may include:

Corporate, partnership, or other business entity annual reports;
Audited financial statements;
Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by the immigrant investor’s own assets, other than those of the new commercial enterprise, and for which the immigrant investor is personally and primarily liable;
Evidence of income such as earnings statements or official correspondence from current or prior employers stating when the immigrant investor worked for the company and how much income the immigrant investor received during employment;
Gift instrument(s) documenting gifts to the immigrant investor;
Evidence, other than tax returns, of payment of individual income tax, such as an individual income tax report or payment certificate, on the following:
- Wages and salaries;
- Income from labor and service or business activities;
- Income or royalties from published books, articles, photographs, or other sources;
- Royalties or income from patents or special rights;
- Interest, dividends, and bonuses;
- Rental income;
- Income from property transfers;
- Any incidental income or other taxable income determined by the relevant financial department;
Evidence of property ownership, including property purchase or sale documentation; or
Evidence identifying any other source of capital.

For Petitions Filed on or after May 14, 2022

Effective on May 14, 2022, the immigrant investor must submit the following evidence, as applicable, to demonstrate the lawful source of the invested funds and any funds used to pay administrative costs and fees:

Business and tax records, or similar records, including
- Foreign business registration records; and
- Corporate or partnership tax returns (or tax returns of any other entity in any form filed in any country or subdivision of such country);
Personal tax returns, including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind, filed during the past 7 years (or another period to be determined by the Secretary to ensure that the investment is obtained from a lawful source of funds) with any taxing jurisdiction within or outside the United States by or on behalf of the investor;
Any other evidence identifying any other source of capital or administrative fees; and
Evidence related to monetary judgments against the investor, including:
- Certified copies of any judgments, and evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving possible monetary judgments against the investor from any court within or outside the United States; and
- The identity of all persons who transfer into the United States, on behalf of the investor, any funds that are used to meet the capital requirement.

As of May 14, 2022, by statute, gifts and borrowed funds are expressly permissible for petitions filed on or after that date, provided:

They were gifted or loaned to the investor in good faith; and
They were not gifted or loaned to circumvent any limitations imposed on permissible sources of capital, including, but not limited to, proceeds from illegal activity.

Investors relying on gifted or borrowed funds must demonstrate the lawful source of those funds by submitting the evidence described above for the donor or, if not a bank, the lender.

7. EB5 Immigrant Investor Visa - Comprehensive Business Plan

What is the Comprehensive Business Plan requirement to obtain the EB5 Immigrant Investor Visa to secure a Green Card (permanent residence) in the United States?

For standalone investor petitions filed at any time and regional center investor petitions filed before March 15, 2022, a comprehensive business plan should contain, at a minimum, a description of the business, its products or services (or both), and its objectives.

The plan should contain a market analysis, including the names of competing businesses and their relative strengths and weaknesses, a comparison of the competition’s products and pricing structures, and a description of the target market and prospective customers of the new commercial enterprise. The plan should list the required permits and licenses obtained. If applicable, it should describe the manufacturing or production process, the materials required, and the supply sources.

The plan should detail any contracts executed for the supply of materials or the distribution of products. It should discuss the marketing strategy of the business, including pricing, advertising, and servicing. The plan should set forth the business’s organizational structure and its personnel’s experience. It should explain the business’s staffing requirements and contain a timetable for hiring, as well as job descriptions for all positions. It should contain sales, costs, and income projections and detail the basis of such projections.

Most importantly, the business plan must be credible.

USCIS reviews business plans in their totality. An officer must determine if it is more likely than not that the business plan is comprehensive and credible. A business plan is not required to contain all of the detailed elements, but the more details the business plan contains, the more likely it is that USCIS considers the plan comprehensive and credible.

8. EB5 Immigrant Investor Visa - Jobs Creation

Own Funds / Borrowed Funds

Many of our clients might not have all the funds required to launch their investment in the U.S.. We are constantly asked if funds can be borrowed or if specific assets such as machinery, equipment, intellectual property, and intangibles such as a website, application, or method, can be used and valued accordingly as sources of capital investment.

With respect to liquid capital, the general consensus is that you can use legal sources of funds that are yours (you will have to source the funds (indicate the source of the funds). Furthermore, you can borrow, a portion or the entire amount of your investment as long as you would be personally liable for the return of these funds. A lien on the business may or may not be placed but in general terms you would have to be personally responsible (secured or not secured by specific assets) towards the person or entity giving you the funds. You will have to present the proper instrument (promissory note, mortgage, pledge, etc.) to support your responsibility of repaying the borrowed funds.

In-Kind Contributions

Concerning in-kind capital contributions, you can include machinery, equipment, intellectual property, know-how, and any kind of intellectual property, tangible or intangible assets that can reasonably be valued. We will indicate in the business plan how these assets would contribute to the value proposition of your business and how they would aid in the profit generation scheme.

9. EB5 Immigrant Investor Visa - Application Timeline

Every client’s file and situation are different, but in general terms, the following is a timeline of our office processing your case.

Initial Client Consultation
Strategy Session
Office issues checklists
Complete Client Intake Questionnaire
Client Completes Draft Forms
Client Uploads Documents on Portal
Review Supporting Documents (Credentials, Resumes, Business Expenses if any, Corporate Documents)
Client submits Business Plan Overview
Prepare together supporting Memorandum
Finalize the Final Draft
Final Joint Review
Upload/Submit to Department of State

The most crucial phase is drafting the Business Plan and ensuring it complies with the USCIS standards.

Based on your documentation, we request that you prepare a business case overview, which would be the basis for our office, or a consultant to prepare your business plan which would be the base for the case memorandum.

Our office will review and prepare the memorandum and finalize your application within 2-3 weeks of receiving all documents.

10. EB5 Immigrant Investor Visa USCIS - Normal Processing Times and Fees

The average processing time for an EB1 Petition is 26-61 months with longer wait periods for citizens from India and China.

The processing governmental (USCIS) fee is $3,675.00 (subject to changes).

As of November 2022, there is no possibility for expedited processing.

11. EB5 Immigrant Investor Visa - Attorney's Fees

Our office charges $6,900.00, payable in two installments ($2,900 at inception and $3,000 at submission), to prepare the E2 petition; this includes the consultations, review, document preparation, memorandum, and file submission to USCIS (a complete file submission).

Our fees are, in general, non-refundable. Still, in cases of E2, we usually offer a money-back guarantee after receiving all client documentation that confirms our requirements and checklists so that clients can rest assured of our services.

In general, it will take us about 1-3 weeks to organize every aspect of your file, review your documents, and write the case memorandum.

From our experience, clients typically will dedicate a significant amount of time to securing all the requisite documents, which generally takes anywhere from 1-3 months. At all times, we communicate with our clients, and we offer an online portal where we strive to review documents as they are being uploaded by the clients so that we can spot any elements subject to change.

Our portal is available 24/7/365, and we encourage clients to upload, message, and schedule any case conferences through the portal, which consolidates all information in one place.

After either USCIS or the U.S. Consulate receives the petition, there can be 2 decisions – Approval or Request for Additional Information (RFI) for U.S. processing or Request for Additional Information or open to schedule for visa interview. The USCIS procedure does not require an interview.

RFI requests are typical in these cases and are sent on average in about 20-30% of the cases. An RFI can request a more detailed answer to a question formulated by USCIS, for example, on experience or proposed endeavor.

We will work with our clients in clearing the first round of RFI free of charge. We will customarily charge based on the complexity and the time needed for any additional rounds of RFI, which are uncommon, usually $1,000.

12. After EB5 Immigrant Investor Visa Approval - Apply to Register Permanent Residence

Once your EB1 Application is approved, you must further apply in the U.S. if you are already present in the U.S. or at the U.S. Consulate abroad to register your permanent residence. In the Application to Register Permanent Residence, you will also petition for your spouse and minor children. They will also file separate petitions with you based on your already approved EB1 Application.

The governmental fees vary based on USCIS processing or Consular processing and are as follows:

USCIS Processing:

$1,140.00 for the principal applicant
$1,140 for the main applicant’s spouse, filing at the same time as the applicant
$750 per minor filing at the same time with the principal applicant
$85 for each type of applicant aged 14-78 (principal, spouse, child)

Consular Processing:

$325.00 for the principal applicant
$325 for each dependent (spouse/child)

You can also retain our firm to prepare your petition and supporting documents, which is what we advise.

Attorney’s Fees:

$1,250.00 for the principal applicant
$350.00 for each dependent (spouse/child)

Why Use Our Services

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EB-5 Do it Yourself Package

We also offer a do it yourself package which contains all the official information, forms, adjudicator manual, sample letters, documents, and memorandum should you decide to do it at your own risk.