Employment visas are broken down into five categories based upon unique criteria. The EB5 program began in 1990 to encourage foreign investors to make investments in the U.S. economy and to create and preserve jobs. 

Criteria for EB5 Eligibility

To qualify for an EB5, the foreign national must invest in a for-profit new commercial enterprise or in an existing enterprise in which the business is restructured to create a new enterprise. In addition, the foreign national could also qualify if he or she expands through the investment so that a 40-percent increase in the net worth or number of employees occurs.

The minimal investment in most cases is $1 million in capital. However, only $500,000 in capital is required if the investor creates jobs in a targeted employment area (TEA). An area is designated as a rural area TEA if it is located outside the metropolitan statistic area or outside the outer boundary of a town or city with a population of 20,000 or greater. A high unemployment TEA has an unemployment rate of at least 150 percent of the national average. The investor qualifies with at least a $1 million investment in any area, regardless of its TEA status.

The investor must also prove job creation of at least 10 unrelated workers. The investor cannot count her or himself and family members in the job creation figures. The business plan presented to the U.S. Citizen and Immigration Services (USCIS) must specifically show the numbers and dates of hire to reach the 10 employees within two years of visa approval. The EB5 program also allows for job preservation for at least two years in struggling businesses, as defined by the USCIS.

How an Investor Can Apply for an EB5

To apply for an EB5, the immigrant investor must file a Petition for Alien Entrepreneur. Unlike some other types of employment-related immigration petitions, the investor may file this form for him or herself, because no sponsoring employer is needed.

Upon approval of the Petition for Alien Entrepreneur, an investor who is currently in the United States can apply for adjustment of status to a conditional permanent resident. An investor located outside the United States would apply to the consulate or embassy for an EB5 visa. Two years after receiving a conditional green card, the investor can apply to have conditions removed.

The EB5 Backlog

The EB5 program sets an annual limit of 10,000 visas. The numbers of foreign investors increased exponentially during the past three years, and so has the time to process. The flood of applications is likely to create further backlogs of up to five years for approval. However, the time period can vary widely depending upon a variety of factors.

Before Applying

Before applying for an EB5 visa consider these key factors:

  • Investment in a TEA reduces the level of financial commitment required.
  • Investors should present a clear, well-organized business plan that shows how the company will reach the 10 hires within two years.
  • The EB5 program is expiring on December 8, 2017, unless Congress authorizes another extension.
  • The advice of a qualified immigration attorney can help minimize delays or denial of an EB5 visa application.

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*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice.

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