The EB-5 Immigrant Investor Program offers foreign nationals the opportunity to obtain permanent residency in the United States by investing in a qualifying commercial enterprise that creates jobs for US workers. The USCIS Policy Manual Volume 6, Part G, Chapter 2 provides essential guidance for investors seeking to understand the requirements of the EB-5 program, with a particular focus on investor eligibility and the importance of demonstrating a lawful source of funds.

Investor Eligibility Requirements

Investment Capital Requirements

To qualify for the EB-5 program, foreign nationals must meet certain investment capital requirements. These include making a minimum investment of $800,000 in a project located in a targeted employment area (TEA) or $1,050,000 in a non-TEA project. The invested capital must be “at risk,” meaning there must be a chance of financial loss, and it must be invested in a new commercial enterprise, which is typically a business established after November 29, 1990, or a restructured or expanded business.

Lawful Source of Funds

Demonstrating a lawful source of funds is a crucial aspect of the EB-5 application process. Prospective investors must provide evidence that their investment capital comes from legitimate sources, such as:

1. Employment income: Salaries, bonuses, or commissions earned by the investor or their spouse.
2. Investment income: Profits from investments in stocks, bonds, or real estate.
3. Inheritance: Funds received as a beneficiary of an estate.
4. Gifts: Monetary gifts from family or friends.
5. Loans: Funds obtained through a secured loan, with collateral provided by the investor.

In order to satisfy USCIS requirements, investors must submit documentation that supports the lawful source of their investment funds. This may include personal and business tax returns, bank statements, proof of property ownership, loan agreements, and gift documentation.

It is essential to be aware of common issues and pitfalls that can arise when documenting the source of funds. Insufficient documentation, funds obtained through illegal activities, or funds originating from a sanctioned country can result in the denial of an EB-5 application.

Job Creation Requirements

The EB-5 program requires the creation of at least 10 full-time jobs for qualifying US workers within two years of the investor’s admission to the United States as a conditional permanent resident. These jobs can be direct (created by the new commercial enterprise) or indirect (created as a result of the new commercial enterprise’s economic impact).

Targeted Employment Area (TEA) Designation

Investing in a project located within a TEA allows investors to take advantage of a lower minimum investment amount. TEAs are either high unemployment areas, with an unemployment rate of at least 150% of the national average, or rural areas, which are not within a metropolitan statistical area and have a population of fewer than 20,000 people.

Management Role of the Investor

EB-5 investors are required to be actively involved in the management of the new commercial enterprise. Acceptable management roles include positions in limited partnerships, limited liability companies, and corporations.

Adjudication Process for Form I-526

Once an investor submits Form I-526, USCIS will review the petition and either approve or deny it. If approved, the investor and their immediate family members will be granted conditional permanent residency for two years. After this period, the investor can apply for the removal of conditions to obtain permanent residency. If the petition is denied, the investor may have the option to appeal the decision.

Material Change and its Effects on Pending or Approved Petitions

A material change is a significant alteration to the facts of a pending or approved petition that affects eligibility. Material

changes can result in the denial or revocation of an EB-5 petition. Examples of material changes include changes in the new commercial enterprise’s business plan, changes in the number of jobs created, or changes in the investor’s source of funds. Investors should be aware of potential material changes and work closely with their immigration attorney to address any issues that may arise during the adjudication process.

The Importance of Professional Assistance

Navigating the complex requirements of the EB-5 program can be challenging for investors. It is essential to seek the assistance of experienced professionals, such as immigration attorneys and financial advisors, to help ensure a smooth and successful application process. These professionals can provide guidance on assembling the necessary documentation, addressing potential issues related to the source of funds, and meeting job creation requirements.

Conclusion

The EB-5 Immigrant Investor Program offers a unique opportunity for foreign nationals to obtain permanent residency in the United States while contributing to the growth and development of the US economy. By understanding the investor eligibility requirements outlined in the USCIS Policy Manual Volume 6, Part G, Chapter 2, and with the help of experienced professionals, investors can navigate the complex EB-5 application process and achieve their goals of obtaining a green card for themselves and their family members.