EB-5 Visa Lawyer | EB-5 Investor Visa

EB5 Visa is a green card through investment program for the United States.

The EB-5 Investor Visa is available to foreign investors, entrepreneurs and individuals who invest a certain amount of capital in the U.S. in exchange for obtaining permanent residence – Green Card. The EB-5 Visa program attracts foreign direct investment in the United States and in return provides Green Cards to foreign nationals.

Our EB5 visa lawyers in Miami, Florida USA possess extensive expertise to advise you on all aspects of U.S. business immigration, capital raising and daily business operations to business growth strategies.
Anda Malescu, US immigration lawyer, Board Certified Expert International Law

Obtaining a Green Card through investment is usually suitable for investors or entrepreneurs who want to start a new business in the U.S., purchase an existing business in the United States, including a franchise, or passively invest in a project associated with a Regional Center.

The purpose of the EB-5 Visa is to stimulate the U.S. economy through job creation and capital investment by foreign nationals.

Our EB-5 visa lawyers in Miami, Florida USA share with you below our knowledge and experience regarding the EB-5 visa.

1. What is EB-5 Visa?

The EB-5 Visa is an immigrant visa (Green Card) for investors, entrepreneurs and anyone looking to do business in the USA.

EB-5 Visa allows the investor and their immediate family (spouse and children under 21) to obtain green cards in exchange for making a minimum investment into a U.S. commercial enterprise or Regional Center project. With a green card, they can enjoy all the rights and benefits of permanent residency.

2. What are the types of EB-5 investments?

There are two EB-5 visa investment options:

Direct EB-5 investment: The investor directly invests the minimum required amount in a US business.
EB-5 Regional center investment: The investor invests in a USCIS-designated regional center project.

3. Who is eligible for EB-5 Visa?

Individuals of all nationalities are eligible for the EB-5 visa program. Anyone, regardless of their country of citizenship, age, education, or profession, is eligible for the EB-5 visa program if they meet the following requirements:

Make a qualifying investment in a new commercial enterprise in the United States; and
Create or preserve at least 10 full-time jobs for qualified U.S. workers.

If you invest the required minimum amount in a US business or Regional Center project, and you otherwise meet all the other requirements, then you and and your immediate family members can apply for EB-5 Visa.

If you have previously invested in a U.S. business for E-2 visa or L-1 visa, you may be eligible to apply for EB-5 Visa with the same investment. To learn more, visit our E-2 visa page.

If you are an investor or entrepreneur on an E-2 visa, L-1 visa or other visa, our EB-5 visa lawyers can advise and assist you to preserve your eligibility for EB-5 visa. Contact us today or schedule a consultation.

Failure to document and trace investments in accordance with EB-5 visa standards can jeopardize a green card application that is based on the success of an entrepreneurial venture developed while holding another nonimmigrant visa status, such as an E visa or L visa.

4. What are the EB-5 Visa Requirements?

The United States Citizenship and Immigration Services (USCIS) administers the EB-5 Visa Program.

To qualify for EB-5 Visa, the investor must meet the following requirements:

Invest the required minimum amount of capital
Invest in a new US commercial enterprise or Regional Center
Create or preserve at least 10 full-time jobs for qualified U.S. workers
Investment amount is “at risk”
Source of investment capital is lawful
Engage in the management of the new commercial enterprise

In other words, the EB-5 visa category requires three major components:

an investment of capital;
engagement in a new commercial enterprise; and
job creation.

5. What is the minimum investment required for EB-5 visa?

To qualify for EB-5 Visa, the investor must invest or be in the process of investing:

$ 1,050,000 in non-targeted employment area (non-TEA) project, or
$ 800,000 in a business projected located in a Targeted Employment Area (TEA), rural or high unemployment area.

In the context of the EB-5 visa program, investment does not mean just cash. EB-5 eligible investments include:

Cash
Equipment
Inventory
Real estate
Unsecured loans
Other tangible property, such as land or vehicles, cash equivalents, and
Debt secured by the investor’s personal assets, provided that the investor is personally and primarily liable for its repayment.

Generally for EB-5 visa purposes, investors are allowed to invest cash that is obtained as a loan from a third-party such as for example home equity loan proceeds. Investors can use unsecured loan proceeds to invest as capital and such loans are treated as a contribution of cash rather than indebtedness.

If you plan to use loan proceeds to meet the EB-5 investment requirement you should consult with an experienced EB-5 visa attorney who specializes in business and immigration law to ensure that the loan complies with all applicable legal requirements. Not all business and financial transactions that are sound from a business perspective are also compliant with US immigration law.

6. How do EB-5 investments work?

To qualify for EB-5 visa, you must invest the required amount in a new business in the United States. This new commercial enterprise is a for-profit business that was formed either:

After November 29, 1990, or
If formed on or before Nov. 29, 1990, it was:
- Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results; or
- Expanded through the investment, resulting in at least a 40% increase in the net worth or number of employees.

Our EB-5 visa attorneys explain that, to qualify for the EB-5 visa program, the investor must invest in a business that engages in commercial activity and offers goods or services to the public.

Investing in a business that has no commercial activity and is used for personal purposes such as to own and manage residential property (for example, a house or an apartment) or land does not qualify for EB-5 visa.

EB-5 Direct investments are made directly into the business that is creating the jobs.

EB-5 regional center investments are made indirectly into a new commercial enterprise (NCE), which then loans the investor capital to the job-creating entity (JCE).

7. What are the job creation requirements for EB-5 visa?

To qualify for EB-5 Visa you must show that the capital invested will create directly or indirectly at least 10 full-time jobs for U.S. workers as follow:

Direct EB-5: The US business must directly employ the 10 full-time workers that will be counted towards the EB-5 job creation requirement. This means that the business (or one of its wholly owned subsidiaries) must be the direct employer of the qualifying employees. Direct EB-5 investors may not count indirect jobs towards their job creation requirement.
Regional Center: Within a Regional Center project, the full-time jobs may be created either directly or indirectly. Regional center investors may use indirect jobs to satisfy up to 90% of the EB-5 job creation requirement.

In certain limited situations, you can preserve U.S. jobs to qualify for EB-5 Visa and obtain a Green Card.

The 10 full-time jobs do not include the investor, their spouse and children, any person in nonimmigrant status or who is not authorized to work in the United States.

8. Is EB-5 visa risky?

Yes, pursuing an EB-5 visa is a risky endeavor as you are exposed to financial and immigration risk. However, this is a requirement of the EB-5 visa program, as the investment must be “at risk” in order to qualify. This means that there is the potential for both financial gain and loss.

To qualify for EB-5 Visa, you must place the required investment amount at risk in the company – the risk of loss if fortune reverses or chance for gain if the business becomes successful.

While the EB-5 visa is a risky investment, successful investors can obtain a green card for themselves, their spouse, and their children, and receive the full amount of their investment plus any accrued interest.

9. What is the source of funds for EB-5?

To qualify for an EB-5 visa, the investor must show that the capital invested and any money used to cover administrative costs and fees came from legal sources and are their own personal funds. The investment capital can come from sources outside or inside the United States.

The source of funds used to invest in an EB-5 project can come from:

Funds from sale of property or business in the U.S. or abroad,
Wages, salaries and bonuses,
Inheritance,
Dividends,
Interest,
Gifts
Stock sale, or
Loans including unsecured loans under certain conditions

10. What is the management role of EB-5 investor?

EB-5 investors who seek to qualify through Direct EB-5 investments in their own business must actively participate in the management of their company. This may involve day-to-day operations or policy formulation. The EB-5 investor must be engaged and cannot be a passive investor.

EB-5 investors seeking to qualify for an EB-5 visa through investments in Regional Center projects will likely be limited partners in the business. Investors can satisfy the management requirement by demonstrating that they have the rights typically granted to limited partners, such as voting rights.

11. What in the Investment Amount for EB-5 Visa?

The required investment amount for EB-5 Visa is:

$1,050,000 for standard investments or
$800,000 for investments in a new commercial enterprise or Regional Center project in a high-unemployment or rural area (TEA).

The EB-5 Reform and Integrity Act of 2022 (RIA) sets the required minimum investment amount for individuals seeking to qualify for a green card through investment in a direct EB-5 or regional center project.

The EB-5 investment amount in 2023 is $800,000 for targeted employment areas (TEAs) and $1,050,000 for standard or non-TEA investments.

However, our EB-5 visa attorneys recommend that, in addition to the above requirements, the capital invested is placed at risk and the funds available for investing come from a legal source.

12. What are the job creation requirements for EB-5 Visa?

Investors must create or preserve at least 10 full-time jobs for US workers to obtain an EB-5 visa.

For Direct EB-5 investments in new commercial enterprises or their wholly owned subsidiaries, the enterprise must directly create and employ the 10 qualifying US workers.

For EB-5 Regional Center investments, the 10 full-time jobs can be created directly, indirectly, or induced. Indirect jobs are those created in businesses that supply goods or services to the EB-5 project. Induced jobs are those created in the greater community as a result of income being spent by EB-5 project employees.

For EB-5 investments in troubled businesses, investors or entrepreneurs can rely on preserving 10 full-time jobs for at least two years, based on pre-investment terms.

13. What is the EB-5 visa process?

The process to obtain an EB-5 visa are:

Consult an Immigration Lawyer for EB-5 Visa
Select a Suitable EB-5 Project to Invest
Invest the Required Capital
Compile Documents for EB-5 Visa
File I-526 Petition for Standalone Investor
File I-526E Petition for Regional Center Investor, if applicable
Obtain Conditional Green Card via Adjustment of Status or Consular Processing
File I-829 Petition to Remove Conditions on Permanent Resident Status

14. What is EB-5 Regional Center?

Foreign investors and entrepreneurs can invest in a USCIS-approved EB-5 Regional Center project as an alternative to investing directly in a new company. EB-5 Regional Centers are selected by USCIS based on proposals for promoting economic growth.

USCIS defines an EB-5 Regional Center as a public or private economic unit in the United States that promotes economic growth. Regional Centers must be accredited by USCIS for foreign investors to participate in the EB-5 visa program and obtain US permanent residency.

Contrary to popular belief, purchasing an apartment or house in the United States is not sufficient to obtain an EB-5 visa. However, EB-5 Regional Centers typically develop real estate projects, both commercial and residential, that allow prospective EB-5 investors to make an equity investment. However, an investment in a Regional Center project developing real estate does not mean that the EB-5 investor has purchased a house or apartment.

15. What is the best advice that our experienced EB-5 visa lawyer gives clients about the EB-5 Regional Center Program?

Our EB-5 visa lawyers explain that investing in a Regional Center makes the prospective EB-5 visa applicant a shareholder in the project. This means that the investor’s capital is at risk if the project fails, but also allows the investor to make a significant profit if the project succeeds.

Investing in an EB-5 Regional Center project is ideal for EB-5 investors who prefer to make a passive investment and not be involved in the day-to-day operations as a manager or executive of a US business.

The EB-5 Regional Center investments carry the following risks include:

Regional Center can lose its accreditation while the EB5 visa is being processed, causing the denial of the EB-5 visa petition, or
Regional Center projects may fail, resulting in significant financial losses for the EB-5 investors

EB-5 Regional Center investments offered to foreign investors and entrepreneurs are considered securities and are subject to US securities laws, even if the investments are offered outside the US to people who are not US residents.

Investors, entrepreneurs or individuals considering obtaining a green card through EB-5 Regional Center investment should contact our EB-5 visa lawyers in Miami, Florida USA to assist you with your Regional Center investment and avoid being victim of investment scams.

Additionally, our EB-5 visa lawyers note that even direct EB-5 offerings not affiliated with a Regional Center may be considered securities offerings in certain circumstances.

Regional Center EB-5 investment offerings are regulated by the US Securities and Exchange Commission (SEC), the federal agency responsible for enforcing US securities laws. The SEC’s role is to ensure that the issuer of the security (the new commercial enterprise in EB-5 visa cases) is not intentionally defrauding investors and that it accurately and completely discloses all material information to potential EB-5 investors.

The SEC has brought several legal actions against Regional Center operators in cases of investor fraud.

16. What happens if the EB-5 investment fails?

If the EB-5 investment fails, it can result in both immigration and financial losses for the investor, including losing the green card and part or all of the investment.

The specific reasons for which an EB-5 investment can fail depends on whether the investor made a direct EB-5 investment in their own company or invested through an EB-5 Regional Center.

An EB-5 investment can fail in two main ways:

Direct EB-5 investment: The investor’s company fails to create 10 jobs within two years of the investor receiving their conditional permanent residency.
EB-5 Regional Center investment: The Regional Center mismanages the investor’s funds or the underlying project fails, including failure to secure necessary loans.

In either case, the investor may lose part or all of their investment and may not be able to obtain their green card.

Investors can reduce their risk of losing their investment by carefully choosing an EB-5 project and working with an experienced EB-5 visa attorney.

17. EB-5 Visa Processing Time

The processing time for EB-5 visas in 2023 varies depending on the specific EB-5 visa project. Rural EB-5 Regional Center projects receive expedited processing, taking an average of 6 to 12 months while standard non-priority EB-5 projects can take 24 to 48 months.

Pursuant to the EB-5 Reform and Integrity Act of 2022, USCIS expedites national interest projects and EB-5 visa petitions from investors in rural targeted employment areas and infrastructure projects.

The EB-5 visa processing time for national interest EB-5 projects is 3 to 6 months.

The EB-5 visa processing time for rural area and infrastructure projects is 3 to 6 months.

Currently, EB5 visa processing time for EB5 Regional Centers program for rural area projects is 3 months. This means that investors applying for green card through the EB5 Regional Center program with investments in rural project can obtain their green cards in as little as 3 months.

The processing time is 80 months for investors from mainland China with non-priority EB-5 visa projects.

18. EB-5 Visa Cost

The EB-5 visa cost for Direct EB-5 is $3,675 and for EB-5 Regional Center investor is $4,675.

The EB-5 visa costs exclude the required EB-5 investment amount, Regional Center administrative services fee and any professional fees.

Why work with our best EB5 visa lawyers in USA?

The EB-5 visa is a pathway to a US green card for investors and their families.

The stakes are high and the EB-5 Visa process is complex and risky. It requires extensive documentation and interdisciplinary knowledge of immigration law, business law, finance, economics, and accounting.

Our EB-5 visa lawyers in Miami, Florida USA have extensive background in immigration and business corporate law. We also provide unparalleled financial expertise for worry-free US green card through investment immigration.

Our team features a Chartered Financial Analyst (CFA) specialized in finance and mergers & acquisitions transactions with extensive business valuation and investment expertise. This allows us to provide expert financial analysis directly to you and immigration officers, minimizing the risk of your investment and streamlining your visa application process.

To navigate the EB5 Visa process with ease and minimize risks or consult on investments, contact us to schedule an appointment with our EB-5 visa lawyers.

Malescu Law P.A. – Business & Immigration Lawyers