EB-5 PROGRAM

What is the EB-5 Program

EB-5 stands for employment-based fifth preference visa.

  • The EB-5 Immigrant Investor Program
  • EB-5 Regional Center Investment Highlights
  • General Benefits of the EB-5 Regional Center Program
  • How to Mitigate Risks in an EB-5 Project

Specifications

What are the advantages?

A Green Card entitles you to legal permanent residency in the United States. As an investor under the EB-5 program, your spouse and unmarried children under age 21 are also eligible to acquire permanent residency in the United States under the same EB-5 application (through only one investment of $500,000 or $1,000,000 as applicable). As a permanent resident, you can live, work, and own property, and your children can attend schools anywhere in the United States.

The EB-5 Employment-Based Immigration Fifth Preference or more commonly referred to as the EB-5 Immigrant Investor Program was established under the Immigration Act of 1990 and provides an expeditious path to permanent residency and citizenship for foreign investors. The purpose of the Program is to encourage foreign investment into the United States economy by giving foreign entrepreneurs who invest in a new U.S. commercial enterprise the opportunity to permanently live, study and work in the United States. Each year, the EB-5 category sets aside a total of 10,000 visas for qualifying foreign nationals. Many immigrants seek to obtain U.S. residency through the EB-5 Immigrant Investor Program as it is faster than many other visa options and has no language or educational requirements.

The EB-5 Program requires an investment of USD $1,000,000.00 (or USD $500,000.00 in a Targeted Employment Area) in a new commercial enterprise that will employ at least ten full-time U.S. persons. The United States Citizenship and Immigration Services (USCIS) administers the EB-5 Program and under it, any foreign entrepreneur and their spouse and all unmarried children under the age of 21, are eligible to apply for a Green Card (Permanent Residence)

On average, in a typical EB-5 project the investor is approved and receives a Conditional Permanent Residency within 14 to 24 months of having applied and invested.For the duration of 14 to 24 months period after the investor’s EB-5 petition is approved, the EB-5 immigrant investor, spouse, and all unmarried children under the age of 21, can live, work and study freely in the United States. Following the period of two years of conditional permanent residency, the EB-5 investor and his/her family must then petition for removal of the conditions with form I-829 to obtain permanent residency. Once they receive their final US permanent residency status. The funds are then returned to the EB-5 investor as per their project’s investment terms. If certain conditions are met by the investor and his/her family for the years following their receipt of their conditional permanent residency, they would be eligible for a United States citizenship and passport.

A Regional Center is a federally accredited entity that seeks to promote economic growth through investment within a defined geographic area. The Regional Center designation was integrated into the EB-5 Immigrant Investor Program as a Pilot Program in 1993. There are over 1,000 Regional Centers in the US and the choice to invest in a Regional Center has several added advantages. Very similar to how a bank obtains a license to bank, a Regional Center obtains a similar license to underwrite EB-5 investors funds and place them into EB-5 projects that are qualified by the United States Federal government.

The Regional Center accepts an EB-5 investment project that meets the standards and regulations of the EB-5 Program

Most Regional Center investments are located in a Targeted Employment Area, thereby reducing the minimum EB-5 investment threshold to USD $500,000.00

The Regional Center provides the EB-5 investor with project documents including, but not limited to a Business Plan, a Project Financial Summary, Job Creation Study and Economic Impact Report, Private Placement Memorandum (PPM) and Subscription Agreement

The Regional Center helps the EB-5 investor comply with all of the regulatory and reporting requirements of the USCIS such as job creation and financial auditing to verify that the required investments have been made

Regional Centers pool funds from multiple EB-5 immigrant investors which widens the scope of individual projects

Since the Regional Center manages the EB-5 investors’ investment, the EB-5 investor may choose to live and work anywhere in the U.S., as the EB-5 investor is not encumbered with the day-to- day management responsibilities of owning and operating a business

If the petition is denied, the EB-5 investor can simply withdraw their EB-5 funds depending on the terms of the project chosen.

The EB-5 project must have their own equity as collateral or personal guaranty to make sure the developer’s interest are aligned with that of the EB-5 investors

The EB-5 project must have obtained a construction loan from a US-regulated lender (this substantially reduces overall risk

The EB-5 project developer must have issued a I-526 Denial and Refund Guaranty

The EB-5 project developer must have issued a Construction Completion Guaranty

The EB-5 project must have chosen an independent Regional Center with a reputable management team and have a solid track record

The EB-5 project must have at least a 20% job cushion (be creating 20% more jobs than required in case of a construction delay)

The EB-5 project must have a business model with a strong commercial and multi-use component in order to ensure that the business revenue is successful and sustainable

The EB-5 project must be involved in a stable market It is preferable that the project developer have a significant portion of the construction risk Eliminated

The project would ideally be “otherwise bankable” and moving forward with construction with or without EB

KEY EB-5 REQUIREMENTS

There are five key requirements for immigrant investors to successfully participate in the EB-5 program

  • Minimum Capital Requirement
  • New U.S. Jobs Requirement
  • Background Check
  • Legally Sourced Investment
  • At Risk Investment

Minimum Capital Requirement

EB-5 visa applicants are typically required to make either a $500,000 or $1 million capital investment amount into a U.S. commercial enterprise.The minimum amount of capital required for the EB-5 visa program may be decreased from $1 million to $500,000 if the investment is made in a commercial entity that is located in a targeted employment area (TEA).

New U.S. Jobs Requirement

The USCIS requires that EB-5 investments result in the creation of 10 full-time jobs for U.S. workers. These jobs must be created within the two year period after the investor has received their conditional permanent residency

Background Check

Proof that investor is not a convicted criminal, no history of financial fraud or has not previously violated U.S. immigration laws.

Legally Sourced Investment

Can clearly document the funds required to make the investment are from a lawful source. Always consult with US immigration counsel on this topic for pre-planning, options and strategies. Acceptable options include, but are not limited to, the following:

Salary | Gifts of money from family & friends | Profits made from sale of real estate | Loan

At Risk Investment

Investment must be “At Risk” (i.e. fully invested in the project) for a period of no less than 5 years.

Per U.S. law, the EB-5 investor cannot be offered any guaranteed return on or of principal, nor possess any redemption rights on capital.

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