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EB-5 Immigrant Investor Program

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.


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