EB5 Investment Visa US: The Ultimate Guide 2023 with Jacob Sapochnick

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In this video, attorney Jacob Sapochnick tells you everything you need to know about the EB-5 Immigrant Investor Program in the year 2023. While there have been recent Congressional changes to the program, it is still an option for those who wish to obtain their green card through a qualifying investment.

If you would like to know more about the EB-5 Immigrant Investor Program, please keep on watching!

Did You Know? The EB-5 Immigrant Investor Program was first created by Congress in the year 1990 to stimulate the United States economy through job creation and capital investment by foreign investors. In return for their qualifying investment, investors receive conditional permanent residence in the United States, and are required to remove their conditions on permanent residence by filing Form I-829 within 90 days of their conditional green card’s expiration.

In 1992, Congress extended the program to allow for Regional Center investment, which sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.

Overview

EB-5 Investment Visa: The Ultimate Guide in 2023

What is the EB-5 investor visa?

The EB-5 investor visa allows qualifying investors (and their spouse and unmarried children under age 21) to receive conditional permanent resident status (a 2-year green card).

One of the ways in which foreign investors may qualify for the EB-5 classification is by investing through regional centers designated by USCIS based on proposals for promoting economic growth.

When investing in regional centers, investors will choose a project offered by the regional center in which they wish to invest. Typically, the projects offered for investment are real estate development projects. For regional center investment, the investor does not need to invest in a project in his or her state of residence. The investment can occur anywhere in the United States.

Additionally, regional center investment allows investors to passively invest in the project, without having to direct or manage it themselves. Regional center investment is the most common way to qualify for the EB-5 visa. In fact, 95 percent of all EB-5 investors file their cases through Regional Center investment.

Another way to qualify is by investing directly in a new commercial enterprise that you intend to direct and operate. In this case you will be managing the project yourself. Only 5 percent of EB-5 investors opt for investment in a new commercial enterprise, because it is more risky.

On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act as part of the Consolidated Appropriations Act, 2022 (Public Law 117-103), which created new requirements for the EB-5 immigrant visa category and the Regional Center Program. EB-5 immigrant visas are currently authorized under the Regional Center Program through September 30, 2027.

To qualify for the EB-5 Visa in 2023, foreign investors must (1) invest at least $800,000 in a targeted employment area (Regional Center Program) and (2) their investment must create at least 10 full-time positions. Those who wish to invest in a new commercial enterprise (that is not in a targeted employment area) must invest at least $1.05 million.

A Closer Look at the Requirements

Direct Investments in a New Commercial Enterprise

  • Minimum Investment of $1.05 million U.S. dollars (if it is not in a Targeted Employment Area)
  • Generate or maintain 10 full-time permanent jobs for qualified Americans
  • Demonstrate lawful source of your investment funds by providing documentation tracing the complete path of funds for your investment

Depending on the origin of your investment, you may be required to show bank statements, income tax returns, and salary deposits from the relevant period when you accumulated the investment funds. If some of your investment funds originated from the sale of property, then you will be required to show proof of your initial purchase of the property, and subsequent sale of the property in question, including proof of the funds arriving in your bank account directly from the buyer. Your attorney will need to review and discuss your specific source of investment funds to guide you on what documentation will be required for you to prove the lawful source of investment funds. Again, such documentation will vary depending on the source of investment.

Investment in a Targeted Employment Area

  • Minimum Investment of $800,000 U.S. dollars
  • Generate or maintain 10 full-time permanent jobs for qualified Americans
  • Demonstrate lawful source of your investment funds by providing documentation tracing the complete path of funds for your investment (see above).

EB-5 Numerical Limitations

Section 203(b)(5) of the Immigration and Nationality Act (INA), allocates 10,000 “EB-5” immigrant visas per year to qualified individuals seeking Lawful Permanent Resident (LPR) status on the basis of their capital investment in a commercial enterprise.

Concurrent Filing of I-526 Immigrant Petition and I-485 Application for Adjustment of Status

Once the I-526 EB-5 petition has been approved by USCIS, the investor and his or her family members can apply for conditional permanent residency, by filing Form I-485 Application to Register Permanent Residence or Adjust Status (if residing in the United States), or if residing abroad they may apply for an immigrant visa through their local U.S. consulate or embassy.

With the passage of the EB-5 Reform & Integrity Act of 2022, certain EB-5 investors may apply for I-485 adjustment of status, concurrently with their I-526 petition, if they are present in the U.S. in a non-immigrant visa status that does not prohibit them from applying for adjustment of status.

For investors residing in the U.S., the benefits of applying for adjustment of status concurrently with the I-526 petition is that the EB-5 investor and his or her dependent family members can live in the U.S. while they await the decision on the I-526 petition and, if the I-526 petition is approved, USCIS can then proceed to approve the conditional permanent residence applications.

Additionally, EB-5 investors and their spouses can apply for work and travel authorization, while the I-526 petition is pending.

What is conditional permanent residency?

A conditional permanent resident is one who receives a Green Card valid for two years based on the EB-5 Immigrant Investor program. To remove the conditions on your permanent resident status, you must file the Form I-829 Petition by Entrepreneur to Remove Conditions within the 90-day period before your conditional Green Card expires.

If your conditions are not removed, you will lose your permanent resident status and you will become removable from the United States.

Once the I-829 petition for removal of conditions is approved, you and your qualifying dependents will receive a 10-year permanent resident card.

EB-5 Application Process

The first step in the EB-5 application process is filing Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor with USCIS.

If an immigrant visa is immediately available to you pursuant to the Visa Bulletin, you may file Form I-485, Application to Register Permanent Residence or Adjust Status, together with your Form I-526 or Form I-526E, while your Form I-526 or Form I-526E is pending, or after your Form I-526 or Form I-526E is approved.

To make sure that an immigrant visa is immediately available to you when you file your Form I-485, you must review the Visa Availability and Priority Dates and Adjustment of Status Filing Charts from the Visa Bulletin pages on the USCIS Website.

Once Form I-526 or Form I-526E petition is approved, the investor will either:

Prior to the expiration of your 2-year green card, you will be required to file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, within the 90-day period immediately before its expiration. If approved, your conditions on lawful permanent residence will be removed, and you will receive a 10-year green card.

The current processing time of an I-526 petition is anywhere from 35 months to 50 months.

Can I get my money back from the Regional Center project?

In general, your investment funds must remain in the project for at least two years and must continue sustaining commercial activity within the Regional Center until the conditions on your green card are removed. You must read the documentation provided by the Regional Center project carefully to understand the terms and conditions of your investment, and the possibility of receiving any profit or return of investment funds. You may wish to retain independent counsel, who can explain to you the legal consequence of your Regional Center investment and who can perform due diligence for your specific project.

Changes Introduced by the EB-5 Reform and Integrity Act of 2022

One of the major changes introduced by the EB-5 Reform and Integrity Act is that previously the Regional Center minimum investment amount was only $500,000 U.S. dollars. This amount has been raised to $800,000 U.S. dollars in a Targeted Employment Area (TEA). Another major change is the ability to file the I-526 petition concurrently with the I-485 green card application.

Conclusion

The bottom line is that the EB-5 Immigrant Investor Program is a great option for those who can afford to make the required investment in a Regional Center project, or direct commercial enterprise, and who can adequately demonstrate the source of their investment funds. However, it is important to understand that the I-526 is currently taking a long time to be adjudicated, so investors should expect a lengthy waiting period. If you do not qualify for any other visas, but you have the funds to proceed with such investment, the EB-5 visa continues to be a viable option.

Contact us. If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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