Since its creation in 1990, the EB-5 Immigrant Investor Program has allowed many foreign nationals to fulfill their dream of permanently immigrating to the United States. The program offers applicants a chance to receive a U.S. green card in exchange for investing in a qualifying EB-5 project. Investors who choose to participate in the EB-5 program must complete a Form I-526 petition and submit it, along with the necessary supporting documents, to United States Citizenship and Immigration Services (USCIS). The applicant’s I-526 petition will be evaluated by USCIS to determine whether the applicant is eligible for an EB-5 visa.
Form I-526 Requirements
USCIS evaluates each Form I-526 petition to ensure the investor is complying with the EB-5 program requirements. Investors are required to demonstrate their compliance with EB-5 regulations on their I-526 petition, such as having invested the minimum amount of funds required. The minimum investment amount in the EB-5 program is $1.8 million, or $900,00 if the EB-5 project is in a targeted employment area (TEA). To meet USCIS’s requirements, the invested capital must also remain “at risk” during the entire investment period.
The investor’s I-526 petition also must demonstrate that the capital has been invested to a qualifying new commercial enterprise (NCE). For a project to qualify, it must be a for-profit entity engaged in ongoing, lawful commercial business activity and have been established after November 29, 1990.
Investing the minimum amount of funds to an NCE is not all that is required of EB-5 investors. EB-5 investors also have to show on their I-526 petitions that all investment capital was acquired from lawful sources. Investors can use investment capital from a wide variety of sources, as long as the legality of the funds can be sufficiently traced back.
Finally, Form I-526 needs to provide evidence that the EB-5 investor is actively engaged in managing the new commercial enterprise and how the investment will lead to the creation of 10 new full-time jobs for U.S. workers.
To prove that they have satisfied all the requirements, EB-5 investors should include various forms of supporting documentation when submitting their I-526 petition. For example, to demonstrate that they have already committed their capital to the NCE, an EB-5 investor may include bank statements, promissory notes, loan certificates, security agreements, or any other evidence that the minimum required amount has been invested. The investor should also include pay stubs, bank statements, and/or tax returns that demonstrate that the investment capital was obtained from lawful sources.
Additionally, the I-526 petition should be accompanied with documents that show the investor will be engaged in managing the enterprise. Sufficient documents could be corporate documents and a list of the investor’s management responsibilities. Notably, however, EB-5 investors who invest through a regional center generally have the option of simply putting their name down as a limited partner, freeing them from the obligation to engage in day-to-day management work.
To meet the job creation requirement, an I-526 petition must also demonstrate how the applicant’s investment will create 10 new full-time jobs for U.S. workers. Supporting documents such as a comprehensive business plan, hiring timeline, and economic report showing how the hiring requirement will be met could all be acceptable documents.
If an EB-5 investor intends to invest the lower minimum amount of $900,000, they are also required to submit a TEA qualification report that demonstrates how the project’s area qualifies as a TEA. This report must include the data and calculation method used to determine the area’s TEA qualifications. To learn more about this, investors can use the interactive TEA map created by EB-5 Affiliate Network.
I-526 Adjudication Process
Gathering all the necessary documents to accompany Form I-526 can be a tedious and stressful task. Unfortunately, waiting for an I-526 petition to be adjudicated can be just as stressful. I-526 processing times can vary significantly, and many EB-5 investors experience unusually long wait times during the process. Insufficient information, application errors, and visa backlogs can all lead to delays in the adjudication process.
While much of this is out of the applicant’s control, there are a few things applicants can do to decrease their chance of delays:
- Work with an immigration attorney to determine the best funds to satisfy the source-of-funds requirement.
- Carefully review all information on Form I-526 to ensure it is consistent and free of errors.
- Stay up to date on whether your country has a visa backlog.
All in all, I-526 adjudication is a non-linear, messy process, and many applications end up getting lost in the system for years. EB-5 applicants can check the estimated processing times for I-526 petitions on USCIS’s website to help predict their wait time. As of August 2020, the estimate processing time for I-526 petitions is 37 to 73.5 months.
New Visa Availability Approach
As of August 2020, USCIS’s estimated processing times do not take into account the new visa availability approach that began in April 2020. The Immigrant Investor Programming Office (IPO) started a new visa availability approach for the processing of I-526 petitions that prioritizes EB-5 investors from countries with readily available visas over applicants from countries that are experiencing backlogs. This new approach is based on Chart B of the monthly Visa Bulletin. If, based on the dates in Chart B, the applicant would not be eligible to apply for a visa that month, their I-526 petition will not be processed for adjudication.
Because of this new approach, applicants from backlogged countries may experience much longer wait times than applicants from countries with available visas. Currently, only EB-5 investors from China are affected.
Prospective EB-5 investors should work closely with an experienced EB-5 immigration attorney when completing their I-526 petition. An immigration attorney can help ensure that all USCIS requirements are met and the necessary supporting documents are included. It is also crucial that all information on an investor’s I-526 petition be accurate and consistent. While the EB-5 process can be messy, taking these precautions can help ensure your petition is approved as quickly as possible, leading to a U.S. green card for you and your immediate family members.
Written on behalf of Sam Silverman of EB5AN: Sam has extensive real estate development, management, financing, and brokerage experience in Florida, Pennsylvania, California, Georgia, and internationally in the People’s Republic of China. Prior to EB5AN, Sam served as the director of corporate strategy and expansion for professional golfer Jack Nicklaus in the People’s Republic of China, living full time in Beijing. Sam was also previously employed by the Boston Consulting Group, one of the top management consulting and business strategy firms in the world, where he worked directly with Fortune 500 companies in the food service, media, manufacturing, hospitality, and real estate spaces in the U.S., Europe, and Middle East. Sam is also a Forbes 30 Under 30 National Winner for Social Entrepreneurship. Sam holds a B.A. Economics with a concentration in Mandarin Chinese from Yale University, a Certificate in Financial Accounting from the London School of Economics and Political Science, and an M.B.A. from the Stanford Graduate School of Business.