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EB-5 Immigrant Visa

The EB-5 process allows for immigrants with one million dollars or $500,000 dollars in investment funds to obtain U.S. lawful permanent resident status if their funds – properly invested in a regional center or direct investment – create ten jobs for U.S. workers.  A regional center is a business already established and approved by the U.S. Citizenship and Immigration Service to act as a conduit of foreign investment and job creation.  A direct investment is a business created by the individual investor herself, for which a mere three percent of EB-5 investors elect to pursue.  The reason for this is that it is extremely difficult to create 10 jobs in a mere two and a-half years, which is the program requirement.  It is even more difficult as a foreign immigrant to do this without established ties to political and business leaders in the investment market, which connections are often indispensable to commercial success.  Moreover, the legal standard for proving job creation is significantly relaxed for regional centers as compared to direct investment in personal projects.

The stages of the EB-5 process

The I-526 Immigrant Petition by Alien Investor

This application serves to demonstrate to USCIS that the investor indeed has lawful funds owned by the investor at her disposal for the purpose of investment in the project and that those monies have indeed been invested in the U.S. business project.  The I-526 also demonstrates the business plan to the Immigration Service, with emphasis on the method of job creation that the business will implement.  As per an important appellate case Matter of Ho (22 I&N Dec. 206, 1998) these jobs must be described in intimate detail and the timeframe for their creation described.

Consular Processing or Adjustment of Status

Once the I-526 petition has been approved by the Immigration Service, the immigrant investor can proceed to request either an immigrant visa for herself and her family via form DS-260 at a U.S. consulate or embassy in her home country, or if she is present in the U.S. with valid nonimmigrant visa status, she can file for adjustment of status at a local USCIS office via form I-485.  Employment authorization cards can then be obtained and a conditional resident status will be awarded.  Two years later after approval of the I-829 petition permanent residency will be awarded.

I-829 Petition by Entrepreneur to Remove Conditions

This application should be filed by the immigrant investor ninety days prior to the second anniversary of her obtaining conditional permanent residency.  The mere filing of this application in a timely manner extends the conditional status by one year.  The filing receipt which is proof of the filing of the I-829 having been executed should be carried with the investor whenever she or her family travels abroad. The most important component of the I-829 is demonstrating to USCIS that the investor’s funds remained with the project in contributing to job creation for U.S. workers as per the specifications within the business plan included with the I-526 petition.  In other words, did the business do what it said it was going to do in the way it said it was going to do it?  Was the plan a success?  Making a convincing showing that this indeed did succeed as originally planned should produce a strong likelihood of approval and open the pathway to permanent residency and subsequently U.S. citizenship for the investor and his or her immediate family.

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