Loune-Djenia Askew Esq.
Oct 2, 2023
This EB-5 Immigrant Investor Program is known as EB-5 for the name of the employment based fifth preference visa that participants receive. On March 15, 2022, President Joe Biden signed the EB-5 Reform and Integrity Act of 2022. This Act establishes a special fund known as the EB-5 Integrity Fund. USCIS administers the EB-5 Program. Under this program investors (and their spouses and unmarried children under twenty-one (21)) are eligible to apply for lawful permanent residence
This EB-5 Immigrant Investor Program is known as EB-5 for the name of the employment based fifth preference visa that participants receive. On March 15, 2022, President Joe Biden signed the EB-5 Reform and Integrity Act of 2022. This Act establishes a special fund known as the EB-5 Integrity Fund. USCIS administers the EB-5 Program. Under this program investors (and their spouses and unmarried children under twenty-one (21)) are eligible to apply for lawful permanent residence if they:
Make the necessary investment in a commercial enterprise in the United States
Plan to create or preserve ten (10) permanent full-time jobs for qualified U.S. workers.
About the EB-5 Visa classification
EB-5 was created by Congress to stimulate the U.S. economy through capital investment by foreign investors. All EB-5 investors must invest in a new commercial enterprise that was established:
After November 29th, 1990
On or before November 29th, 1990, that was: purchased and the existing business was restricted or reorganized in such a way that a new commercial enterprise results; or Expanded through the investment, resulting in at least 40% increase in the net worth or number of employees.
How to apply
File Form I–526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor.
After an approved Form I-526 or I-526E petition either:
-File DS-260, Application for Immigrant Visa and Alien Registration, with the U.S. Department of State to obtain an EB-5 visa abroad and seek admission to the U.S; or
-File Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS to adjust to a conditional permanent resident within the U.S. If approved, USCIS will grant conditional permanent residence to the EB-5 investor and derivative family members for a two-year period.
File Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, within a 90-day period immediately before the second anniversary of your adjustment of status or admission to the United States as a conditional permanent resident.
If USCIS approves this petition, USCIS will remove the conditions from your lawful permanent resident status and from that of any dependent you include.
Job Creation Requirements
An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least ten (10) qualifying employees.
For a new commercial enterprise not located within a regional center, the new commercial enterprise must directly create the full-time positions to be counted
For a new commercial enterprise located within a regional center, the new commercial enterprise can directly or indirectly create the full-time positions. Up to 90% requirement for regional center investors may be met using indirect jobs.
In the case of a troubled business, the EB-5 Investor may rely on job maintenance.
The investor must show that the number of existing employees is or will be, no less than the pre investment level for a period of at least two years.
A troubled business is one that has been in existence for at least two (2) years and has incurred a net loss during the 12 or 24 month period before the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20% of the troubled business’ net worth before the loss.
A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including a conditional resident, temporary resident, asylee, refugee, or a person residing in the U.S. under suspension of deportation.
Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. Jobs that are intermittent, temporary, seasonal, or transient do not qualify as permanent full-time jobs. However, jobs that are expected to last two years are generally not considered intermittent, temporary, seasonal, or transient.
Department of Homeland Security (“DHS”) will use the EB-5 Integrity Fund to:
Conduct investigations based outside the U.S.
Detect and investigate fraud or other crimes
Determine whether regional centers, new commercial enterprises, job-creating entities and immigrant investors comply with U.S. immigration laws
Conduct audits and sites visits; and
Conduct other activities that DHS deems necessary.
For more information, contact our office at Askew & Associates, P.A. by calling 954-546-2699.
*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns.