July 16, 2012

According to the immigration laws of the U.S., an investor can apply for a green card by investing $1,000,000 to a business venture. The amount of investment is lowered to $500,000 at urban areas and at targeted employment areas where unemployment rates are high.

 

There are two investment methods in the EB-5 category. First method is to invest money in investor’s own business. The investment can be either made to a new company, or by purchasing the shares of a troubled company that is already in existence. In the second method, the investor would invest the capital to a specific project at a Regional Center. Regional Center is a public or private establishment to contribute to the economy, increase production, create opportunities for work, and to create investment opportunities. Regional Centers require approval from the USCIS.

Acquiring green card through the EB-5 Visa category is a three step self-petitioning process. Investors should first file Form I-526, “Immigrant Petition by Alien Entrepreneur,” accompanied by supporting documentation. The support documentation must show that the applicant has invested or is investing the required lawfully-gained capital in a company within the U.S. and will create full-time jobs for at least 10 U.S. workers. Current processing time for I-526 is four to six months.  After approval, one still needs to adjust status through an I-485 if he/she is in the U.S. or through consular processing if he/she is outside of the U.S. Processing time is between 6 months to 1 year.

The EB-5 applicant and family members is granted conditional permanent residence for a two year period upon the approval of the I-485 application or upon entry into the United States with an EB-5 immigrant visa. Children must be unmarried and under age of 21 to be considered derivatives at the time the I-526 is filed.

According to the USCIS, the two year job requirement commences six months after adjudication for Form I-526. In other words, the investor must hire and maintain 10 jobs within six months after Form I-526 approved.

Within 90 days of the 2-year conditional green card’s expiration date, the investor must file Form I-829, “Petition by Entrepreneur to Remove the Conditions” to request removal of conditional permanent residency. The petition will be granted if the investor has fulfilled the EB-5 requirements in accordance with the business plan in the approved Form I-526 petition. Applicants remain in valid status while their I-829 petition is pending and their status must be extended automatically in one year increments until USCIS acts on petition. Failure to file Form I-829 will result in automatic termination of the conditional resident’s status and will initiate deportation proceedings. Once conditions have been removed, a full green card is granted for indefinite permanent resident status in the U.S. After five years of permanent residency (including the two conditional years), an investor may apply for U.S. citizenship.

With the end of fiscal year on September 30, 2010, USCIS announced that the agency received 1,955 Form I-526 Immigrant Petition by Immigrant Entrepreneur, and 768 Forms I-829 Petition by Entrepreneur to Remove Conditions.  Approval rates for I-526s increased to 89% from 86% in fiscal year 2009.  In 2010, the approval rate for Form I-829 Petition by Entrepreneur to Remove Conditions declined to 83% from a previous 86%. The most common reasons of I-829 denials are the investor not sustaining the investment for the entire two year conditional legal permanent status period, and not creating the required 10 full time jobs for U.S. workers. Further, ninety percent of I-526s are filed through regional centers as opposed to investment in investor's own business.

In July 2012, State Department provided the FY2012 Employment-Based Fifth preference issuance totals for the top five countries (89%), for the period from October 2011 through June 2012. These countries and their respective visa issuance numbers are; China 3,710, South Korea, 335, Taiwan 106, Venezuela 82, and Iran 69. The Department expects that the FY2012 EB-5 visa usage will be approximately 6,200.