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EB-5 Immigrant Investors: An Overview

The EB5 fifth preference employment-based immigration visa category was created in 1990 by Congress for immigrant investors who will come to the United States to engage in a commercial enterprise that will produce US jobs and will benefit the US economy. There are 10,000 visas available annually for this preference, 3,000 of which are set aside for those who invest in what are known as “targeted employment areas.” The statutory requirements for the EB5 are extremely complicated, and only about 1,000 foreign nationals obtain an EB5 visa each year, which is only 10% of the total number available. In addition to the burdensome statutory requirements, Legacy INS issued four 1998 court decisions that made it even harder to qualify.

What are the basic requirements?

In order to be eligible, the foreign national must invest $1 million. However, $500,000 may be invested if such investment is in a targeted employment area. It must be shown that the investment will benefit the US economy and will create at least 10 new full-time US jobs.

How would I qualify as an immigrant investor?

The investment must be in a commercial business enterprise that creates a new business, restructures an existing business, or expands an existing business. In certain circumstances two or more immigrant investors can pull their investments into a single enterprise so long as each investor meets the criteria. The immigrant investor must engage in the commercial enterprise, meaning the investor must have more than a mere passive role, but rather must be involved in the enterprise’s management.

The immigrant investor must have made the investment or be in the process of making the investment. The investment must constitute capital that is invested at the investor's risk. The invested capital must have been legally obtained by the immigrant investor.

EB5 status is conditional for the first two years

Once the EB5 petition is approved, the immigrant investor receives permanent resident status that is conditional for two years. The investor must file a petition to remove the conditions within the 90 day period immediately before the end of the two year period. The petition to remove conditions must show that the necessary criteria have been or are being met. Upon filing a petition to remove conditions, status is automatically extended one year. Failure to meet this deadline will cause the conditional permanent resident status to be automatically terminated.

EB5 is one of the most difficult areas of immigration law

Obtaining EB5 status is extremely complicated and requires extensive understanding of several areas of law including tax, corporate, investment, as well as immigration. It is recommended to obtain competent and professional legal counsel with the requisite experience necessary to handle these types of cases. It may also be beneficial to look at other visa categories as well including the EB1 multinational executive or manager, E2 investor, and the L1 intercompany transferee. If you have questions about the EB5 immigrant investors visa category, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.

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