The U.S. Congress established the EB-5 immigrant investor program in 1990 in an effort to stimulate the American economy through job creation and capital investment by foreign entrepreneurs. The formal name of the EB-5 immigrant investor program is: Employment-Based Fifth Preference visa. The basic requirement is that an investor must invest capital in a new commercial enterprise in the United States that creates or preserves at least 10 permanent full-time jobs for qualified U.S. workers within two years.
The Investment Thresholds
The investment amount is based on the geographical area where the commercial enterprise is located:
Targeted Employment Area (TEA): The minimum investment is USD 800,000. A TEA may refer to a rural area or an area experiencing high unemployment (at least 150% of the national average rate).
Non-Targeted Employment Area: The minimum investment is USD 1,050,000.
The investment capital must be “at risk” – the investor must put the capital in the business for potential gain or loss – and all funds must be proven through documentation to have been lawfully obtained. The actual capital may come from any lawful source, including the business itself, salary, investments, loans, and even gifts, as long as there is documentation showing where each dollar originated.
Invest Smartly: Direct vs. Regional Center Investment
When starting the EB-5 Visa Investments process, the investor will need to select one of two main investment models: the Direct Investment Model and the Regional Center Program, with over 90% of applicants utilizing the Regional Center model due to its passive nature as well as the ease of proving the job creation element.
1. The Regional Center Program
The Regional Center Program does allow investors to pool their investment with other EB-5 investors into a large-scale, job-creating investment generally managed by regional centers authorized by USCIS.
Passive Involvement: The investor is not required to be involved in the day-to-day management of the commercial enterprise, allowing the investor the freedom to live and work anywhere in the U.S.
Simplified Job Creation Measurement: This model provides the ability to count direct, indirect and induced jobs created by the project. It makes it much easier to satisfy the required 10 job creation per investor condition.
TEA Emphasis: Almost all Regional Center projects are set up as a TEA so they qualify for the lower, USD 800,000 investment amount.
2. The Direct Investment Model
In a Direct Investment model, the investor sets up or restructures a commercial enterprise and actively manages the business.
Active Participation: The investor is required to be active in the day-to-day operations or the policy-making of the enterprise.
Direct Job Creation Only: Only direct jobs created by the enterprise can count towards satisfying the 10 job creation requirement.
Why the EB-5 Program is Attractive to Indian Investors
Interest among Indian nationals in the U.S. investor visa program has grown considerably with the ongoing severe retrogression and years-long backlogs for applicants in the traditional employment-based categories, particularly the transition of an H-1B visa to a Green Card (EB-2/EB-3).
Shorter Wait Times and Reserved Visas
The EB-5 Reform and Integrity Act of 2022 (RIA) expanded the program by providing set-aside (for ‘reserve’) visas to the annual EB-5 allocation. The reserve categories are for investments in:
1. Rural Areas
2. High-Unemployment Targeted Employment Areas (TEAs)
3. Infrastructure Projects
Significantly, based on the most recent trends in the visa bulletin, the reserve categories are often ‘current’ for Indian nationals, indicating that there is generally no wait time for a visa number after an initial petition (Form I-526E) is approved. Thus presenting a potentially much faster and easier path toward obtaining a U.S. Green Card by investment than through the unreserved categories.
Flexibility and Freedom for the Family
With the EB-5 investor visa, the approved applicant and their immediate family (spouse and unmarried children under 21) gain the ability to live, work, and study anywhere in the United States. The non-conditionality of a specific employer or job location is a significant advantage, granting the family uncommon flexibility. Additionally, after the 5-year period of having permanent resident status, there will be an opportunity for the investor to apply for the citizenship (naturalization) of the U.S. for him or herself and their family, if they have met the required physical presence requirement.
The EB-5 Investor Process: A Step-by-Step Guide
The process of obtaining your U.S. PR through the EB-5 program consists of various important steps; each step requires sustained effort in preparation and documentation.
Step 1: Investment and Source of Funds Documentation
The investor must first choose a qualified commercial enterprise (usually a Regional Center project) and invest the appropriate amount of capital for the EB-5 Visa Investment (USD 800,000 in a TEA/Rural Area or USD 1,050,000 otherwise). The most challenging part of the application is proving the source of funds was lawful. Every rupee of the invested capital must be traced to a legal source.
Step 2: Filing the Immigrant Petition (Form I-526/I-526E)
After you file the investor’s Form I-526 (for Direct Investment) or Form I-526E (for Regional Center Investment) with the U.S. Citizenship and Immigration Services (USCIS), the investor’s petition will establish eligibility for the EB-5 program, the lawful source of the funds to be invested, and that the investment project will meet the requirements for job creation.
Step 3: Conditional Permanent Residence
Once the investor’s I-526/I-526E is approved, the investor and their family will obtain an immigrant visa if they will apply via consular processing through the U.S. Consulate or will apply for an Adjustment of Status if they are already in the U.S. on a different non-immigrant visa such as H-1B or F-1. If successfully approved, the investor and their family will be granted Conditional Permanent Residence for two years upon entering the U.S.
Step 4: Removal of Conditions (Form I-829)
The investor is required to submit the I-829 petition during the 90-day period immediately preceding the expiration of the two-year conditional Green Card. The final petition will evidence that the investor’s full investment was maintained and that the requisite 10 full-time jobs were created or saved. Upon approval of the petition, the conditions will be removed and the investor and family will be granted an unconditional (permanent) U.S. Green Card.
The Value of Professional Guidance
The EB-5 rules are complicated and have numerous requirements, especially with regard to source of funds, that must be architected properly with the best advice received from experts. To help minimize risks and ensure compliance, professional immigration attorneys and EB-5 project advisors should be consulted throughout the application life cycle.
Mitigating Risks in EB-5 Visa Investments
Although the lure of a Green Card is enticing, the EB-5 Visa Investments present fundamental financial and immigration risks that one must thoughtfully consider. The investment must be “at risk,” and does not guarantee the return of capital, or even the principal capital.
Due Diligence is Key
Savvy investing in this program means full diligence on any Regional Center or project you select. Here are the paramount due and content areas to investigate:
Integrity of the Regional Center: Review the Regional Center’s recent projects track record for prior projects rates of success of issuance of I-526E’s and/or I-829’s.
Project Structure: Familiarize yourself with the business plan of the project, the financial model, and the job creation projection method which has been verified by a qualified economist in accordance with requisite job-creation methodology. Confirm that the project is feasible, with invested funds structured and held as “at risk” for the desired period.
New RIA Protections: The EB-5 Reform and Integrity Act of 2022 created important integrity protections such as mandatory audits, increased oversight from USCIS, and increased transparency obligations required of Regional Centers, improving protections for investors.
By selecting a credible Regional Center and well-structured project, Indian investors can strengthen their likelihood of a successful outcome in the EB-5 visa program: achieving their investment goals and their family’s goal of US permanent residency.
Take the Next Step Towards Your U.S. Future
If the pathway of obtaining a U.S. Green Card through investment for you and your family aligns with your aspirations, now is the time to take action. The EB-5 Immigrant Investor Program is an efficient and safe way to obtain permanent residency in the U.S.
Ready to check out vetted EB-5 Visa Investments and start your process? You can consult with an experienced EB-5 advisor today regarding your eligibility, policy updates, and finding a project that fits your financial situation and immigration goals.
Frequently Asked Questions (FAQ)
Q1: What is the main difference between the Direct EB-5 and the Regional Center EB-5?
A: The main difference is in management involvement and job counting. The Direct EB-5 Visa Investment requires the investor to be actively involved in day-to-day management and only counts direct jobs created. The Regional Center model allows for passive investment and counts direct, indirect, and induced jobs, making the job creation requirement easier to meet.
Q2: Can my family members also get a Green Card through my EB-5 Investment?
A: Yes. The EB-5 investor visa includes the primary investor, their spouse, and all unmarried children under the age of 21. They all receive Conditional Permanent Residence simultaneously and can apply for the removal of conditions together.
Q3: How do I prove the lawful source of my investment funds?
A: You must provide clear, documented evidence tracing the funds back to their legal source. This may include five to seven years of personal and business tax returns, evidence of business ownership, salary statements, gift deeds, proof of property sales, or inheritance documents. Transparency and thorough documentation are critical for all EB-5 Visa Investments.
Q4: Does the EB-5 program guarantee my investment will be returned?
A: No. The capital investment for the EB-5 visa program must be placed “at risk” in the commercial enterprise, as required by law. This means there is no guarantee of return of capital or a profit. Investors must understand and accept the commercial risk associated with the investment.
Q5: Is there a waiting period for Indian nationals applying for the EB-5 visa?
A: For the “Unreserved” EB-5 category, there can be a waiting period (retrogression) for Indian nationals, though typically shorter than for other employment-based visas. However, for the reserved EB-5 visa investment categories (Rural, High-Unemployment TEA, and Infrastructure), the visa is often immediately available (current), offering a much faster processing timeline. The availability changes monthly and should be checked on the U.S. Department of State Visa Bulletin.
