What is EB-5 Visa Process for USA?
What is EB-5 Visa Process for USA?
The EB-5 Visa process for USA consists of three major steps that a foreign investor needs to take in order to obtain an EB-5 immigrant visa (green card) for themselves and their wife or husband and unmarried children under the age of 21. Through the EB-5 visa process a foreign investor and their family can become permanent residents of the United States in exchange for making an investment of $1.8 million into a U.S. business located in an urban or high employment area or $900,000 in a business located in a rural or high unemployment area and creating over time at least 10 full-time jobs for U.S. workers. Once the investor and family members get the green card, they can take the next steps towards U.S. citizenship. For more information about the general EB-5 requirements for foreign investors, please click here.
Pre-application steps to consider during the EB-5 Visa Process for USA
The EB-5 visa process for USA has three major steps discussed below, but there are additional pre-application steps the investor needs to consider before submitting the application for the EB-5 visa.
Plan the investment and work with a U.S. immigration lawyer to understand the various laws, rules and regulations for EB-5 visa. Some of the most important pre-application tasks to take during the EB-5 visa process, include planning for the investment and working with a specialized U.S. immigration lawyer to understand the various U.S. immigration laws, rules and regulations surrounding the EB-5 visa process for the USA and its impact on other non-immigrant or immigrant visa petitions, among others. This is especially important because business decisions that can make sense in the investment and business world do not necessarily comply with U.S. immigration law for purposes of the EB-5 Visa as specific transactions are highly regulated or prohibited under U.S. immigration law. Even more, if the foreign investor has applied for other visas or had other visas in the past for the United States, the EB-5 visa process can impact or be impacted by these other visa petitions the investor has or had in the past. Note that the EB-5 visa process is complex, highly regulated and is interconnected with other immigration benefits.
Find a suitable business or project to invest in. A second important pre-application step during the EB-5 visa process is to find a business or project to invest in that is suitable for the investor. The investor has the option of making a direct investment in a business by starting a new business in the United States or purchasing an already existing business or investing in an already existing business, including a franchise business. For example, the investor can buy a McDonald’s franchise or a shared office space/co-working space business. Another option for the investor is to invest in a Regional Center Project. Regional Center Projects are designated by U.S. Citizenship and Immigration Services to raise investments for larger projects such as hotels or resorts. However, please note that U.S. Citizenship and Immigration Services even though it approves certain Regional Center Projects, it does not endorse the business activities of any regional center project, does not guarantee compliance with U.S. securities laws or minimize or eliminate risk to the investor, and can remove the certification of the any Regional Center Project. Offering for investment made by the Regional Center Project operators are subject to United States securities laws and it is recommended for potential investors to seek professional advice when making any investment decisions.
Have a comprehensive EB-5 compliant business plan. The third important pre-application step is to have a comprehensive EB-5 compliant business plan that shows how the business will create at least 10 full-time jobs for U.S. workers.
Summary pre-application steps during EB-5 Visa Process for USA
To summarize, a foreign investor should take the following pre-application steps during the EB-5 visa process for USA:
- Consult with a U.S. immigration lawyer about the EB-5 visa requirements, immigration history, investment compliance and deployment of capital.
- Select a suitable business or project to invest in.
- Comprehensive EB-5 complaint business plan.
The three major application steps involved in the EB-5 Visa Process for USA
All the pre-application tasks and planning lead to three major steps involved in the EB-5 Visa process for USA: the immigrant petition for alien investor, 2-year conditional green card and removal of green card conditions.
Step 1: Immigrant Petition for Alien Investor
In order to prepare and file the Immigrant Petition for Alien Investor with U.S. Citizenship and Immigration Services, the foreign investor must complete all pre-application tasks discussed above but most importantly engage an experienced U.S. immigration lawyer from the beginning to assist with the EB-5 immigrant visa case. EB-5 visa petition is complex, require an extensive amount of information and documentation that is in line with U.S. immigration laws and other EB-5 rules and regulations. Generally, you and your immigration lawyer will work from the start on planning the immigration case, compiling proper documentation needed for a successful EB-5 immigrant visa petition, reviewing any limitations under current U.S. immigration laws and regulations, selecting a suitable business or regional center project to invest in, selecting professional services for any financial due diligence and expert opinions and getting a comprehensive EB-5 compliant business plan, among others.
Once the case has been planned and the documentation is available, conforming, and ready, your attorney will prepare the Immigrant Petition for Alien Investor together with the supporting documents and file it with U.S. Citizenship and Immigration Services (USCIS). The USCIS processing time for the Immigrant Petition for Alien Investor is approximately 16 months, but the processing can take less or more time depending on the volume and country of citizenship. However, in general, Chinese applicants have to wait longer than other investors from other countries for USCIS to process their EB-5 Immigrant Petition for Alien Investor.
After USCIS receives and reviews the application for EB-5 immigrant visa (Immigrant Petition for Alien Investor), USCIS can approve the application and issue an Approval Notice, request more evidence in the EB-5 immigrant visa case and issue a Request for Evidence, intend to deny the application and issue a Notice of Intent to Deny or, in extremely rare cases, USCIS can deny the application without first sending a Request for Evidence or Notice of Intent to Deny to the foreign investor.
Step 2: 2-Year Conditional Green Card via Adjustment of Status or Consular Processing
If after review USCIS approves the EB-5 Immigrant Petition for Alien Investor and sends out an Approval Notice, the investor can apply for a conditional green card for the United States once the date the petition was filed is current. Because the investor is not required to employ full-time 10 U.S. workers at the time of filing the Immigrant Petition for Alien Worker, the investor applies for a conditional green card after the EB-5 petition is approved. The condition on the green card is that the EB-5 business will create 10 full-time jobs for U.S. workers within 2 years from the date the investor obtained the conditional green card.
The investor can apply for the conditional green card through adjustment of status, if the investor is physically present in the United States, or consular processing at a U.S. Embassy or Consulate abroad, if the investor is not physically present in the United States and selected consular processing on the EB-5 Immigrant Petition for Alien Investor. The adjustment of status is processed with USCIS and the processing time is approximately 6 months. Obtaining the conditional green card through consular processing is done through the U.S. Embassy or Consulate abroad and usually takes approximately 6 to 12 months.
Upon successfully completing the adjustment of status or consular processing, the investor receives a conditional green card that is valid for 2 years and comes with the same rights and privileges as for any unconditional permanent resident of the United States. With the 2-year conditional green card, the investor has the time to work on the business and hire at least 10 full-time U.S. workers as required by EB-5 visa regulations before the investor can remove the conditions and get a green card for the USA that has no conditions.
Step 3: Removal of Green Card Conditions to become Unconditional Permanent Resident of the United States
The removal of green card conditions is the final step in becoming a permanent resident of the United States through the EB-5 visa process. During this final step, the investor must send U.S. Citizenship and Immigration Services a petition to remove conditions on the green card withing 90-days of the expiration date on the 2-year conditional green card. In other words, 90 days prior to the expiration of the conditional green card, the investor must petition USCIS to remove the green card conditions and become an unconditional permanent resident of the United States.
To remove the conditions, the investor must show with the petition that he or she maintained the required investment in the business, has fulfilled all other requirements of the EB-5 visa program and hired at least 10 full-time U.S. workers.
The USCIS processing time for removal of conditions on the green card and issuance of a permanent green card is approximately 6 months.
How can Malescu Law assist?
Our experienced immigration lawyers in Miami, Florida can assist you with planning, strategizing and reviewing the EB-5 visa case, preparing documents and filings throughout the EB-5 visa process for USA, selecting professionals for EB-5 business plan and financial due diligence and others.
Malescu Law P.A. – Immigration Lawyers