EB-5: Green Card through Investment

Under to the EB-5 Reform and Integrity Act of 2022 (RIA), investors must make a qualifying investment in a new commercial enterprise and create 10 jobs in the United States.

The standard investment amount is $1,050,000. This amount is reduced to $800,000 if projects are located in Targeted Employment Areas (TEAs), such as rural areas or areas with high unemployment. The lower capital investment applies to infrastructure projects as well.

Projects in rural areas receive priority processing from the U.S. immigration agency, U.S. Citizenship and Immigration Services (USCIS), meaning that Green Cards are approved more quickly compared to projects in other areas.

The goal of the EB-5 immigrant investor program is to encourage foreign investments in the United States that create U.S. jobs in exchange for a Green Card.

Two EB-5 investment options exist: (1) the Direct Investment Program and (2) the Regional Center Program.

In the Direct Investment Program, the investor takes an active role in management to create the required 10 U.S. jobs.

Investors may also opt for investment through a Regional Center, which is designated by USCIS, and sponsors projects. By choosing a Regional Center investment, the involvement of an investor can be narrowed down to making policy decisions. In contrast to projects involving direct investments, projects sponsored by Regional Centers can consider both direct and indirect job creation, making it easier to meet the requirement of creating 10 jobs per investor.

Investors should focus on two primary objectives: obtaining the Green Card and the return of their invested capital.

This should significantly influence whether the investor opts for the direct investment program or invests through a Regional Center. If the choice is a Regional Center, the specific Regional Center and, more specifically, the project should be carefully selected.

Treat EB-5 investments like any other business venture – there are no guarantees. Investors should seek a Regional Center with successful EB-5 projects, industry experience, and a solid track record of Green Card approvals and capital repayments.

A significant advantage of the EB-5 program is that the entire family obtains the Green Card: the investor, spouse, and unmarried children under 21. If you are in the United States with a valid visa (not ESTA or Visa Waiver), you can potentially apply for the Green Card while in the U.S. instead of going through consular processing and waiting outside the U.S. During the green card process, all applicants can obtain travel and work permits.

Before delving into the various sources of investment funds, let's walk through the four phases of the EB-5 process through a Regional Center.

(1) Researching Projects and Hiring an Immigration Attorney. Investors must research projects and hire an immigration attorney with extensive experience in the EB-5 program. The attorney will prepare a customized checklist to document the lawful source of the investment funds.

(2) Project Selection and Subscription Agreement. After choosing a project and signing the subscription agreement, the investor must invest either $800,000 or $1,050,000, depending on the project’s location.

(3) Filing the I-526E Petition. The I-526E petition must be submitted to USCIS and includes information about the project, the investor, and the lawful source of funds.

(4) Filing the I-829 Petition. Two years after receiving the Green Card, the investor must submit an I-829 petition to remove the conditions on residence, to confirm that the investment was sustained and the required 10 U.S. jobs were created.

Typical financing sources for EB-5 investments include (1) ordinary income, (2) capital gains, (3) gifts or inheritances from family or friends, and (4) loans from family, friends, or businesses.

One of the most challenging aspects of the EB-5 process is documenting the lawful origin of investment funds. Therefore, it is crucial to work with an experienced EB-5 attorney.

The first common source of funds for EB-5 investments is ordinary income. Ordinary income refers to financial resources generated by the investor or their spouse, including salaries, self-employment income, dividends from stocks, and distributions from business interests.

If the income is derived from self-employment, document the origin of the funds used to establish the business, sample contracts, invoices and purchase orders, business bank statements, evidence of dividend payouts, payroll records, business and personal bank statements, and business and personal tax returns. Document the source, accumulation, and path of the funds.

If the income is derived from employment with third parties, provide payroll records, employment contract, employment confirmation letter, employment records, tax returns, as well as bank statements showing the source, accumulation, and path of the funds.

The second common source of funds is capital gains, funds earned by the investor or their spouse through the profitable sale of an asset, such as real estate, businesses, or securities. The original investment in the asset must be documented.

For real estate, document the income used to finance the purchase. If capital gains result from flipping real estate, provide the purchase and sale agreements, asset valuations, relevant bank statements, and tax returns.

If the capital was generated from the sale of a business, trace the funds back to the original investment into the company. It is necessary to demonstrate the source of funds used to establish the business as well as tax returns and financial reports for the past seven years. Also, document the registration and legitimate business activities of the company. To confirm the sales proceeds, provide sales agreements and corresponding bank statements.

The third common source of funds are gifts or inheritances from family or friends. This is money that is given without any expectation of repayment, or funds received through a will.

When investing gifted funds, provide the gift agreement, donor documents, bank statements, financial records, and tax returns.

When investing inherited funds, the investor needs to demonstrate their rightful status as the heir to the funds or asset. Submit a copy of the will or the local intestate succession laws. Also document the original acquisition of the asset by the donor. The most reliable evidence is direct proof of the source of the donor’s assets. In cases where direct evidence is unavailable, secondary evidence, such as sworn declarations from the donor or a third party, may be submitted.

The fourth and final common source of funds for an EB-5 investment is a loan from family, friends, or businesses. This involves money borrowed at market terms by the investor or their spouse from a third party, with or without collateral.

A loan from an individual should have comparable terms to a commercial bank loan, including the requirement for the lender to have the authority to foreclosure in the event of a default. The lender should provide documents confirming the lawful acquisition of the funds and tax payments on the same.

For a business loan, submit documentation to verify the proper organization, lawful management, investor ownership and shares, financial status of the company, and the legal source of funds. This includes business tax returns and financial reports for the last seven years.

You must also prove the ownership of the collateral by the investor and its valuation. Provide evidence of how the investor acquired the assets used as collateral.

Submit relevant documents such as loan agreements, promissory notes, personal guarantees, mortgage deeds, bank statements, and personal tax returns for the most recent seven years.

The best option would be to obtain an unsecured bank loan to avoid challenges in proving the source of funds of the collateral.

One of the most challenging aspects of the EB-5 process is documenting the lawful source of investment funds, underscoring the importance of collaboration with an experienced EB-5 attorney.

Disclaimer: Information on this website is not legal advice and is for informational purposes only. You must engage your own legal counsel for legal advice.