EB-5 Immigrant Investor Visa, How to Apply

What is an “EB-5 Immigrant Investor Visa”?

The EB-5 Program is an immigration program that offers foreign investors the opportunity to gain permanent residency in the United States by making an investment in a U.S. business. 

The investor must make a minimum investment of $800,000 in a U.S. business that creates or preserves at least 10 full-time jobs for U.S. workers. 

In addition, the investment must be “at risk”, meaning that the investor is able to lose the entirety of their investment if the business fails.

You can apply for an EB-5 visa for yourself, your spouse, and any unmarried children who are under 21.

An EB-5 application is a “self-petition,” meaning you sponsor yourself for a green card. This is different from being sponsored by an employer. In those circumstances, your employer (the petitioner) files an immigration application on your behalf (the beneficiary). Here, because you apply for permanent residency without a sponsor, EB-5 applications are considered self-petitions. 

EB-5 Immigrant Investor Visa requirements

There are four basic EB-5 eligibility criteria for investors to apply for this type of visa:

1. Investment of capital
2. Capital must be invested into a commercial enterprise
3. Commercial enterprise must be “new”
4. Use of invested capital to create jobs or, if the commercial enterprise was “troubled” to save jobs.

Let’s discuss each EB-5 requirement in detail.

Investment of capital

The law requires an investor to have invested or be in the process of investing the required capital.

The required capital is $1,050,000.

The required capital is reduced to $800,000 if the business is principally operating in a “targeted employment area” (TEA).

The capital invested must be “at risk”. Simply transferring funds into account of enterprise does not satisfy the “at risk” requirement.

Investors must prove actual and intended uses of capital that will be used for job creation and profit-generating activity. 

The capital investment requirement largely depends on the investment location.

Investment location

There are two types of investment locations:

• Targeted employment area (TEA), and 
• High-unemployment area. 

Targeted employment areas (TEA) can either be:

• Rural areas, or 
• Areas with a high unemployment rate. 

A rural area is defined as an area with populations of less than 20,000.

High-unemployment areas are defined as locations that have experienced unemployment at 150 percent of the national average.

Commercial enterprise must be “new”

The necessary investment includes an investment in a “new commercial enterprise” in the U.S.

A commercial enterprise is any for-profit activity formed for the ongoing conduct of lawful business. 

The establishment of a new commercial enterprise may consist of:

1. The creation of an original business (formed after November 29, 1990);
2. The purchase of an existing business (formed before November 29, 1990) and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results; or
3. The expansion of an existing enterprise (formed before November 29, 1990) through the investment of the required amount, so that a substantial change in the net worth or number of employees results from the investment of capital. 

Substantial change means:

• 40 percent increase in the net worth, or
• 40 percent increase in the number of employees

Commercial enterprises include:

• A sole proprietorship
• Partnership (whether limited or general)
• Holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business)
• Joint venture
• Corporation
• Business trust
• Limited liability company 
• Other entity, which may be publicly or privately owned

Use of invested capital to create jobs

To successfully obtain an EB-5 visa, investors must show a relationship between the capital investment and the creation of at least 10 new full-time jobs.

The EB-5 enterprise must create full-time employment for at least 10 U.S. employees who are:

• U.S. citizens
• Green card holders, or
• Other immigrants authorized to be employed 

The following individuals cannot count as employees for purposes of EB-5 new jobs creation criteria:

• Investor
• Investor’s spouse
• Investor’s sons and daughters
• Any other individuals who hold nonimmigrant visas (for example, H-1B visa)

Full-time jobs

Jobs must be created for at least 10 employees (not independent contractors), on a full-time basis (minimum 35 hours a week).

 Combinations of part-time jobs will not qualify the EB-5 requirements.

 The jobs must be created within 2.5 years of the I-526 petition approval.

Direct Investment vs Regional Center

The capital required for EB-5 application can be invested in two ways:

• Direct investment
• Regional Center investment

Direct investment is an independent entrepreneurial venture that will create qualifying employment positions for 10 U.S. workers. 

Investors can also meet the EB-5 requirements by investing in a new commercial enterprise that is affiliated with a regional center. 

Regional center is a public or private entity that has received regional center designation from USCIS. 

A regional center can be connected to a new EB-5 enterprise as general partner or licensor.

Currently, there are 640 approved regional centers in the U.S. 

The list of approved regional centers can be found on the official USCIS website.

How to apply for EB-5 Immigrant Investor Visa

There are three steps to apply for an EB-5 Immigrant Investor Visa. 

Step 1. Filing as a Standalone Investor or a Regional Center Investor. 

1. Standalone Investors: file a Form I-526. These are investors that invest directly into a new commercial enterprise
2. Regional Center Investors: file a Form I-526E. These are investors investing in a Regional Center program. 

Step 2. Await approval. Then, file either a DS-260, Application for Immigrant Visa and Alien Registration (if you are located outside the U.S.) OR file a I-485, Application to Register Permanent Residence or Adjust Status with USCIS (if you are located in the U.S.) You will receive a conditional two-year green card.

Step 3. Within the 90-day period before the expiration date of your conditional green card, file an I-829, Petition by Investor to Remove Conditions on Permanent Resident Status.

Let’s discuss each application process in detail.

Step 1: Initial filing as standalone or regional center investor

During this first step, the investor prepares Form I-526 or I-526E and gathers evidence showing that the investor meets the EB-5 requirements. 

Investor must submit the proof of meeting the following requirements: 

• “Investment” requirement 
• Proof that the source of the investor’s funds is “lawful”
• Path of the fund from the source to investor and on to the new commercial enterprise is clear
• Job creation requirement (detailed business plan showing when an how the jobs will be created if they have not already been created)
• Commercial enterprise into which the investor has invested must be “new”

You can see the detailed checklist of required documents below in this article.

Concurrent filing of I-526 or I-526E with permanent resident application in the U.S. (Form I-485). Some investors are eligible to file the permanent residence application in the U.S. (Form I-485) at the same time as they file Form I-526 or I-526E with USCIS. 

Only investors who have “visa immediately available” can file these two applications at the same time (or “concurrently”). 

To determine if an investor can file the application “concurrently”, check the U.S. Visa Bulletin. 

Find the most recent bulletin and scroll down to the “Employment-Based Preference Cases”. 

There, you will need to find your country of birth and your EB-5 category. 

If the category for your country of birth says “C” (“C” stands for Current), it means that you might be eligible for concurrent filing in the U.S. 

Keep in mind that concurrent filing is available only for investors lawfully present in the U.S. on a nonimmigrant visa.

Immigration law is complex, so we recommend investors interested in an EB-5 visa to consult an EB-5 immigration lawyer first. 

Making even a small mistake in the EB-5 visa application process can lead to denial.

Step 2: Filing for conditional permanent residence status

Investors who have Form I-526 or I-526E approved can move to the second step of the process – filing for conditional permanent resident status. 

There are two options available:

1. Consular Processing (if you reside abroad)
2. Adjustment of Status (if you are present in the U.S. on a visa)

Consular Processing

If you are located outside the U.S. and need to apply for a visa to enter the U.S. as an EB-5 investor, you will be undergoing the so-called “Consular Processing”. 

Consular Processing means that you will be applying for the immigrant visa at the U.S. Embassy/Consulate in your country of residency. 

After your Form I-526 or I-526E is approved, USCIS will forward the approved petition to the National Visa Center (NVC). 

NVC will then send you an email and/or letter with instructions. 

In these NVC instructions, you can find your online immigrant visa application login information.

You will need to fill out Form DS-260 (Immigrant Visa Electronic Application) and submit your supporting documents. 

Once your NVC application is approved, the U.S. Embassy/Consulate will schedule an interview that you and your family members need to attend in person. 

If the interview goes well, you will be issued an immigrant visa that allows you to enter the U.S. and become a conditional permanent resident.

Adjustment of Status 

For those investors who are present in the U.S. on a nonimmigrant visa (for example, B1/B2 visa), “Adjustment of Status” option might be available. 

This means you have some other type of nonimmigrant status that legally allows you to be in the United States.

The “Adjustment of Status” application means that you request USCIS to “adjust” your status from nonimmigrant status to immigrant status.

• For example, if an investor is physically present in the U.S. on an E-1 (treaty trader) visa, they can apply for a green card in the U.S.

When investors submit their “Adjustment of Status” application in the U.S., they can also apply for an Employment Authorization Document (Form I-765) that will allow them to be lawfully employed in the U.S. while their green card is being processed.

You can find the checklist of required documents for Step 2 below in this article.

When your permanent residency application is approved (either Consular Processing or Adjustment of Status) you will be granted conditional permanent residence status. 

Any family members (spouse or unmarried children under 21) will also obtain conditional green cards.

“Conditional” green card means that your permanent residency is approved for 2 years only. 

The U.S. government imposes restrictions on EB-5 investors to verify later in the process that the EB-5 enterprise indeed created 10 jobs for U.S. workers and met all other requirements. 

To remove conditions you will need to file a separate application with new evidence of your EB-5 eligibility.

Step 3: Removing conditions and applying for a 10-year green card 

The last step of the EB-5 process consist of filing:

• Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status
• Proof that the funds have been invested and jobs have been created.

When you file an I-829, you are requesting the U.S. government to remove conditions on your permanent residence and obtain a 10-year green card.

You must submit an application to remove conditions (Form I-829) within the 90 days immediately before the expiration date of your 2-year conditional green card.

Failure to file Form I-829 on time and insufficient evidence of your continued EB-5 eligibility might result in denial and your permanent residence will not be extended. 

You and your family members might be placed in deportation.

To successfully obtain a 10-year green card, the EB-5 investor must demonstrate the following:

• The capital was invested or in the process of investing in a new enterprise;
• Investment capital was sustained in the enterprise;
• 10 jobs were created (or will be created within a reasonable time) as a result of the investment.

EB-5 Immigrant Investor Visa checklist of documents

The general checklist of required documents for each EB-5 application step is provided below.

All documents in foreign languages must be translated into English

Checklist of documents required for Step 1. Filing Form I-526 or I-526E

Checklist of documents required for Step 2. Filing DS-260 or I-485

Checklist of documents required for Step 3. Filing Form I-829

EB-5 Immigrant Investor Visa cost

Below you can find the filing fees associated with each step of the EB-5 Visa application process. 

STEP ONE FEES

• Form I-526 – $3,675 filing fee

• Form I-526E – $4,675 filing fee

STEP TWO FEES

• Form DS-260 – $325 filing fee/per applicant
• Form I-485 – $1,225 (age 14-78)/per applicant

STEP THREE FEES

• Form I-829 – $3,750 + $85 biometric fee per each applicant

LEGAL FEES

• Legal fees (if you decide to hire an immigration attorney to file your application) – varies, $15,000 to $25,000 on average

You can find the most current EB-5 filing fees using the Fee Calculator on the USCIS official website.

EB-5 Immigrant Investor Visa processing time

The EB-5 Immigrant Investor Visa processing time varies and largely depends on the following factors:

• Location and type of investment (rural, high unemployment or infrastructure investments)
• Investor’s country of birth
• Current U.S. Visa Bulletin priority dates, and
• Current USCIS processing time

The EB-5 processing time can take anywhere between 5 years to 10 years to complete.

Investors from China and India can experience even longer waiting periods compared to nationals of other countries.

However, the processing time varies depending on many factors, so each EB-5 application waiting timeline is unique.

To get a better understanding of how long it will take you to immigrate to the U.S. on EB-5 visa, you need to:

1. Check the current U.S. Visa Bulletin. Visa Bulletin gets updated monthly, so you need to use the most recent one. Find your country of birth and your EB-5 category. Letter “C” means that there’s no waiting line for your EB-5 permanent residence application. Once Form I-526 or I-526E is approved, investors can immediately apply for a green card. If there’s a particular date posted for your category, it means that only applicants that filed their petitions before that date will be allowed to apply for green cards. This date is called “Priority Date”. Your priority date is the date USCIS received and registered your Form I-526 or I-526E.
2. Check the current USCIS processing times. Choose your form, your category and click on “Get Processing Time”. The processing time you see online is an average processing time. It can take less or more time to get your application processed. 

Other Visa Options for Investors & Entrepreneurs

For some investors EB-5 visas can take many years to get approved, so anyone interested in immigration to the U.S. can consider the following nonimmigrant and immigrant visa options.

• Nonimmigrant visa allows you to stay in the U.S. temporarily 
• Immigrant visa allows you to stay in the U.S. permanently

If you have a valid nonimmigrant visa, it allows you to stay in the U.S. while your EB-5 application is pending.

Nonimmigrant (temporary visa) options are:

• International Entrepreneur Rule (IER)
• E1/E2 (traders or investors)
• L-1A (intracompany transferees) – executives or managers
• H-1B
• L-1B
• TN
• E-3
• O-1
• F-1 (student visa)
• B1/B2 (business and tourism)

Immigrant (green card) options are:

• EB-1C (multinational executives or managers)
• EB-1A (extraordinary abilities)
• EB-1B (outstanding professors or researchers)
• EB-2 National Interest Waiver

If you are eligible for any immigrant visa, then you don’t have to file an EB-5 application at all. 

Also, some immigrant categories might have shorter waiting lines compared to EB-5.

EB-5 FAQs

1. What is the Eb-5 Immigrant Investor Program?

The EB-5 immigrant investor program is a visa program created by the United States Congress to stimulate the United States economy via job creation and foreign investor capital investments. 

The EB-5 Program was first created in 1990. Congress went on to create the Immigrant Investment Program (or Regional Center Program) which gives EB-5 visas to foreigners who invest in commercial enterprises that are associated with USCIS approved regional centers with proposals that promote economic growth. 

Investors can apply for permanent residency or green card status in the U.S. for themselves, their spouse, and any non-married children under 21.

You must self-petition your EB-5 visa application. 

2. What are the Requirements to Qualify for an Eb-5 Visa?

There are two requirements to qualify for an EB-5 Visa. 

First, you must make the necessary investment in a new commercial enterprise. 

Second, you must plan to create or preserve 10 permanent full-time jobs for qualified United States workers. 

3. Are There Any Residency Requirements for EB-5 Investors?

Green card holders may travel outside the U.S., and temporary or brief travel usually does not affect their permanent resident status. 

If you leave the U.S. for too long or indicate in another way that you do not intend to make the U.S. your permanent home, the U.S. government may determine that you have abandoned your permanent resident status. 

To maintain permanent resident status in the U.S. green card holders must predominantly reside in the U.S. 

There’s no fixed number of days a year a permanent resident has to reside in the U.S. 

For example, if your trip outside the U.S. was between 180 and 365 days, your permanent residence will be scrutinized by the CBP (Customs and Border Patrol) officers upon your return to the U.S. 

Very often when a permanent resident spends more than 1 year outside the U.S., CBP will look into permanent residency abandonment. 

The following factors might be taken into consideration when deciding if green card holders have abandoned their permanent residency:

• Intent when leaving the U.S.
• Employment abroad
• U.S. business affiliations
• Ownership of residence or property holdings in the U.S.
• Payment of U.S. taxes
• Length of time resided in the U.S.
• Community ties in the U.S.
• Maintenance of a bank account, club memberships, or other social ties within the U.S.
• U.S. residence of other immediate family members (spouses, children, parents) during the period of absence.

You can use your green card as a travel document for returning to the U.S. if you have not been abroad for a year or more. 

If you need to stay outside the U.S. for more than 12 months, you should apply for a re-entry permit (Form I-131, Application for a Travel Document) before leaving the U.S. 

An approved re-entry permit is valid for up to two years. 

Having a re-entry permit does not guarantee that you will be admitted to the U.S. when you return, but it can make it easier to show that you are returning from a temporary visit abroad.

4. What is the Minimum Investment Amount for the Eb-5 Program?

The minimum investment amount required for the EB-5 program is $800,000 if invested in a so-called “Targeted Employment Area”. 

Targeted employment areas (TEA) include rural areas (an area with populations of less than 20,000 people) and high-unemployment areas (locations that have experienced unemployment at 150% of the national average). 

If you want to invest in any location outside of the targeted employment area, the minimum investment amount is $1,050,000.

5. How Long Does the Eb-5 Visa Application Process Take?

The processing time for EB-5 visas varies, depending on the following factors:

• Backlog in the government agencies that process EB-5 applications 
• Your country of birth 
• Your EB-5 investment category (rural or high unemployment area, infrastructure project)
• Current U.S. Visa Bulletin schedule
• Incorrect forms or missing documents. You will delay the processing of your EB-5 application if you do not provide the complete information on immigration forms and fail to provide all the required documents. Your application must strictly match the eligibility criteria to be approved. 

On average, it can take anywhere between 5 to 10 years to get an EB-5 visa approved. This is an estimated timeline based on the current USCIS processing times and U.S. Visa Bulletin schedule. However, it can take less or more time to get your EB-5 visa approved.