EB-5 OVERVIEW

The USCIS administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors.

Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:

Established after Nov. 29, 1990, or
Established on or before Nov. 29, 1990, that is 1) Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or 2) Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs.

Job Creation Requirements

Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
Create or preserve either direct or indirect jobs.

CAPITAL INVESTMENT REQUIREMENTS

Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.

Required minimum investments are:

General. The minimum qualifying investment in the United States is $1 million.
Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.

A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.

PROCESS & TIMELINE

Application Process

1 - 2 months

Complete Investor
Reserve slot in LCR’s EB-5 project
Engage with U.S. Immigration specialist
Review confidential offering materials
Wire investment and fee to Escrow account
Submit I-526 Petition

Conditional Green Card Received

18 - 24 months

USCIS reviews I-526 Petition
Approval of Conditional Green Card
U.S. Consulate Interview (or adjustment of status)
Investor visits U.S. within 180 days of approval

Permanent Green Card Received

4 - 5 years

USCIS reviews I-829 Petition
Submit proof of creation of 10 jobs
EB-5 I-829 has an approval rate of 95%

Required Paperwork for the New Commercial Enterprise (NCE) and Job Creating Enterprise (JCE)

Once the NCE is formed, it will typically oversee a securities offering qualifying under certain private placement exemptions and similar exemptions from registration under federal and state securities laws. As many EB-5 securities offerings are private, non-registered offerings, the main disclosure document related to the deal is typically a confidential offering memorandum or private placement memorandum (PPM) that details the material terms of the EB5 investment. EB-5 investors will then subscribe to the offering by executing a subscription agreement. Once funded with EB-5 investor capital, the NCE will then make an investment in debt or equity, depending on the project structure, into the JCE through which the required ten jobs per investor will be created.
‍
The NCE and JCE are each required to submit several documents to the USCIS as part of an EB-5 investor’s application.

Among other things, the NCE is typically required to submit the following documents:
‍

• USCIS letter of regional center approval designation
• A detailed Matter of Ho-compliant business plan
• A targeted employment area (TEA) letter (if the investment is intended to be $500,000 and not $1,000,000, as discussed in detail later in this book)
• An economic report including job creation analysis showing how the required jobs will be created
• Legal offering documents including any PPM or Confidential Offering Memorandum
• Formation documents related to the NCE
• Organizational documents related to the NCE
• Subscription agreement and ancillary documents
• Escrow agreement with capital release terms (if applicable)
• Investment/loan agreement(s) between the NCE and JCE (if applicable)
• Collateral document(s) for the investment/loan
• Additional supporting documentation The JCE may be required to submit the following:
• Title deed (if the investment is a real estate transaction)
• Credible and recent market analysis or feasibility study
• Bank loan commitment (if applicable)
• Third-party appraisal (if applicable) 6
• Proof of the project sponsor’s capital commitment to the project (if applicable)
• Proof of any other capital or lending instruments to be used in the transaction
• Information on the project sponsor’s track record
• Exit strategy for the investment (loan repayment, refinancing, sale, etc.)

Please bear in mind that the lists above are not comprehensive and that each EB-5 investment project is unique and requires a custom set of documents for the project sponsor to accomplish its goals and for each investor to successfully receive USCIS approval of his or her I-526 immigration petition.
‍

EB-5 VISA