The Investment Based Way To Secure Lawful Permanent Residence Status

Every year, Congress offers 10,000 immigrant visas to qualifying foreign investors, in exchange for their capital contributions to new commercial enterprises. Aimed at stimulating economic activity and promoting job growth, the United States Citizenship and Immigration Services (USCIS) has opened its doors with this Employment Based Fifth Preference Category (EB-5) visa, to eligible investors depending on the type, purpose, and amount of capital they are willing to provide. In one category, a successful application requires evidence of a qualifying investment of $1 million, made in a new, commercial enterprise in the U.S. by an individual, and evidence of at least 10 jobs created and other significant growth that has resulted from that investment.

Alternatively, 5,000 visas are carved out for investors who are given ample opportunities to invest their money in pre-approved programs in Regional Centers where the minimum investment is reduced to $500,000. These centers seek to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment. Individual entrepreneurs investing $1 million must demonstrate individual control of the funds invested, active investment, active management of the U.S. enterprise and investment of at least the statutory amount within a two-year conditional residence period. In particular, the investment must create 10 new full-time jobs for U.S. workers. In the case of Regional Center investments on the other hand, the job creation may be indirect and there need not be active management of the enterprise by the foreign investor. Most importantly, with both applications, investors must prove that the funds used to invest were obtained legally. This is oftentimes the most difficult hurdle to overcome.

USCIS determines whether the investor qualifies for the EB-5 visa by adjudicating an application filed on Form I-526. USCIS adjudication includes a detailed review of the sources of the investor’s funds, his family history, and other representations of the investor head of household and includes visas for his spouse and children under the age of 21. In all EB-5 cases, qualified investors receive a conditional green card valid for two years. At the end of that time the investor files another application on Form I-829 with USCIS showing that his money was “at risk” during the two-year period of conditional residency and that the jobs have been created in order to obtain permanent residence. Immigration Services will also review the Regional Center, whether it is still engaged in the same activity as when it was first created, etc. to remove the condition to the residence status and issue a full 10-year green card.