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U.S. IMMIGRATION & NATIONALITY LAW

EB-5 Immigrant Investor Green Card Program

Igbanugo Partners Int’l Law Firm has an extraordinary success record in helping clients obtain green cards or lawful permanent resident status in the U.S. through the EB-5, immigrant investor green card petition. Simply stated, this involves obtaining a “green card” based on investment in the U.S.

The EB-5 green card route is a highly beneficial option for wealthy foreign nationals. Since there is no quota backlog or waiting list in this preference category, it enables an applicant to obtain permanent residence status much more quickly than with most other options.

What is an EB-5 Immigrant Investor Visa?

The "Immigrant Investor Visa" (EB-5 visa) is an investment-based option for obtaining a green card in the U.S.

You may obtain a U.S. based green card through the EB-5 category if you generally fulfill two major requirements:

  1. Invest at least $500,000 (in “targeted employment areas”) or $1 million in a new commercial enterprise in the United States; and
  2. create 10 full-time jobs for U.S. workers.

Who qualifies for EB-5 visas?

The principal investor and the investor's spouse and unmarried children under 21 years old can all obtain their green cards through this category.

Filing Procedures

Obtaining your green card through the EB-5 immigrant investor program is a two-step process:

  • An investor must file a Form I-526, Immigrant Petition for an Alien Investor, together with the required documentation with U.S. Citizenship and Immigration Services (USCIS).

Each investor will be assigned a priority date under the visa quota system based on the date the petition is filed.  After approval of the petition, which may take between 5 and 10 months, qualified investors and their accompanying family members, (spouses and unmarried children under 21 years old) may apply for their green card, either from outside or within the U.S.

Eligible persons outside the U.S. may consular process their immigrant visas at a U.S. Embassy or Consulate abroad. Eligible persons in the U.S. may file a Form I-485 Application to Register Permanent Residence or Adjust Status with USCIS. 

Once you obtain your conditional green card, it will be initially valid for two years while you operate your investment (or while you allow a Regional Center to operate the enterprise to which you contributed the investment funds).

  • During the 90-day period prior to the end of the two-year conditional residence period, the investor must file a Form I-829, Petition by Entrepreneur to Remove Conditions, with USCIS to remove the conditions on the green card. If that is approved, the investor can receive a permanent green card without any remaining conditions.

The I-829 petition must show that the required capital was invested as planned, that the enterprise was maintained for two years, and that the enterprise has satisfied the job creation requirements of the law. 

How long does it take?

Once all the required documents are provided to our firm, it usually takes 1 to 2 months to prepare your documentation and file your Form I-526 (and, if applicable, your Form I-485). It usually takes 5 to 10 months for USCIS to decide these initial applications. It also typically takes several months to a year for USCIS to adjudicate your Form I-829 petition to "remove conditions," which you must file within 90 days before the end of your two-year conditional green card period.

What are the Requirements?

Engagement in Management

The investor must be active in "management" of the enterprise, but a limited partnership is specifically covered in the statute, which allows for less or minimal active involvement.

The investor must either be engaged in the day-to-day management of the business enterprise, or exercise control through policy formulation as a corporate officer or member of the board of directors. 

Multiple Investors

The new enterprise may be a basis of petitions for more than one investor.  Each investor, however, must invest the required amount of capital and each individual investment must create at least ten full-time jobs.  A new business with more than one owner may be used as a basis of a petition even though there are other owners of the enterprise not seeking investor-based green card status.

Investment in a New or Existing Business

A qualifying business may be any for-profit entity formed for the ongoing conduct of business. This does not include a noncommercial activity such as owning and operating a personal residence or non-profit enterprise.

There are two basic methods for showing investment in a new commercial enterprise:

1.Investing in an original new business formed after November 29, 1990;  or
2.Investing in a business established before November 29, 1990 so as to either –

  • Cause the restructuring or reorganization of the enterprise; or  
  • Expand an existing business through investment of the required amount so that a 40% increase in either the net worth or number of employees results, making the new net worth or number of employees 40% higher than it was before the investment.

All of these options still require (a) the investment of a minimum of $500,000 (in a “targeted employment area”) or $1 million and (b) creation of at least 10 full-time jobs.

Investment

The investor must have invested or is actively in the process of investing. The law requires that there be an actual commitment of the required amount of capital. Evidence of prospective arrangements to invest without a present commitment of the funds is not sufficient to show that the individual is in the active process of investing. 

Capital

A capital contribution may include cash, equipment, inventory, and other tangible property.  Borrowed funds may be used as long as the investor is personally liable and the assets of the new enterprise are not used to secure the indebtedness.  Capital will be valued at fair market value in U.S. dollars. 

Required Amount of Capital

The standard investment amount required is $1,000,000.  A lowered investment amount of $500,000 is authorized for a rural area or an area that is experiencing high unemployment. 

Lawful Source of Capital

To prevent the use of illegally acquired funds to obtain U.S. immigrant status, the EB-5 laws require the investor to submit documentation clearly showing the lawful source of the capital invested in the enterprise.  The invested capital must be the personal funds of the investor, instead of funds belonging to a third person or a business entity owned by the investor. The invested funds, however, may be received from another person by gift or inheritance.   In situations where the funds are received as a gift or loan from a third party, documentation must be provided to prove the lawful manner in which that party obtained the funds.

The investor may obtain the funds invested in any lawful manner. For instance, the funds may be earned as personal income in the form of wages, or as distributed profits or earnings from a business or other investment.  The funds could also be obtained by the sale of a valuable asset owned by the investor, or by a loan secured by other personal assets owned by the investor. The funds may not, however, be obtained or derived from a loan secured by the assets of the qualifying U.S. enterprise. 

Employment Creation

The investment must create at least 10 new full-time positions for U.S. workers.  These jobs must be created within two years.  If the 10 employees have not been hired at the time of filing of the I-526 petition, the petition must be accompanied by a detailed business plan showing that 10 qualified employees will be hired within two years.

The job creation requirement may also be met through an investment in a “troubled business,” which results in the retention of jobs for at least two years at a level no less than the number of employees prior to the investment.  A “troubled business” is one that has been in existence for at least two years and which has had a net loss of at least 20% of the business's net worth.  

Regional Designated Center Pilot Program

To encourage immigration through the immigrant investor category, the U.S. Congress created the Designated Regional Center Pilot Program in 1993. The Pilot Program sets aside 3,000 visas each year for individuals who invest the required amount of capital in a Designated Regional Center. A Regional Center is an entity, organization or agency that has been approved as such by USCIS, which focuses on a specific geographic zone within the U.S. and aims to promote economic growth.

EB-5 Challenges

Some of the biggest challenges for EB-5 investors typically include:

  • Showing that the invested funds came from legitimate sources and were not amassed or transferred in violation of laws.
  • Showing that the jobs in a project that takes years to develop really will be created within 2.5 years of petition approval.
  • Balancing the need to create 10 jobs and have the capital "at risk" with the desire for investment stability, timely return, and profit.

EB-5 Green Card Benefits

The EB-5 green card option allows investors to:

  • Live anywhere in the U.S. while enjoying retirement, attending school, or running the enterprise in which they have invested.
  • Become a permanent resident (green card holder) and, five years later, a naturalized U.S. citizen.
  • Petition for their spouse and children under 21 to immigrate with them to the U.S.

How We Can Help

Igbanugo Partners can assist you with filing the appropriate immigration forms and documents to obtain your EB-5, investor-based green card. We can also help evaluate, set up and acquire companies through investment. 

As a firm that values strategic alliance partnerships, we possess the combination of interdisciplinary know-how and experience that are particularly useful in this U.S. investment-based green card program.