What is the difference between EB-5 and the E-2 Visa?
The E-2 Investor visa is a temporary visa that can be prolonged indefinitely, with investment sums starting at approximately $100,000 (depending on the business). Only nationals of countries that have bilateral investment treaties qualify for the E-2 visa. The main disadvantages are that the status is temporary (unlike a green card), the investor must work in the company and reside where the company is located, and the status can be forfeited if the business experiences financial difficulties.
For how long is the green card valid under the EB-5 program?
The investor and dependents receive a conditional, 2-year green card. During the three-month period before the expiration, a petition is submitted to the USCIS requesting the removal of the condition. The condition will be removed upon a showing that the investment has been made; there were no material changes in the investment as planned at the initial petition stage; and that ten jobs were created by the investment. After the condition is removed, a new ten-year, unconditional green card is issued.
How does the EB-5 program differ from L-1A/EB-13 visas (manager/executive transfer)?
With an EB-5 visa, you obtain a green card for permanent residence in the United States. The green card is conditional. If the investment is made through a Regional Center, the investment may be passive — not requiring daily oversight — and the investor and his family may live, work, or study where they wish.
The L-1 visa is a temporary, work visa for an executive or manager, which has the following disadvantages: 1) requires prior employment in a related company overseas; 2) may never result in permanent residence; 3) has time limits (up to 5–7 years), 4) has to be extended periodically, requiring additional filings with the USCIS and an embassy abroad; 5) a related foreign company must continue to operate while the executive or manager is in L status; and 6) ties the holder to the company in which he or she is working. If the company lays off the employee, his status is lost.
While the L-1 visa can be a first step to a green card through the EB-13 petition process, USCIS has recently cracked down on L-1 extensions and EB-13 green card petitions for managers and executives of small businesses, requiring more subordinate employees to qualify. The advantage of the EB-13 petition is that if it is approved, the green card is unconditional.
For a more detailed comparison of EB-5 and L-1A/EB-13 categories, see the Business Immigration section of our website.
How long does the EB-5 application process take?
In general, the process takes 1–2 years. Petitions are reviewed usually within 9–18 months. After the petition is approved, it is forwarded to the overseas consulate or local USCIS for further processing and final visa issuance/conditional permanent residency approval. As of 2015, the EB-5 country quota for China has been exhausted and nationals of China are subject to additional waiting periods.
How many EB-5 visas may be issued per year?
There are 10,000 EB-5 visas available to qualified aliens each year. This includes visas for principal applicants and dependent family members (spouse, unmarried children under 21).
If I am already in the US on a work visa, is it necessary to return to my home country in order to obtain an EB-5 visa or permanent residence?
No. In order to obtain permanent residence in the US under the EB-5 program, you do not need to return to the country of your citizenship. You and the members of your family may apply to adjust status while in the United States. However, there is no concurrent filing of the EB-5 I-526 petition with an application to adjust status, i.e., it is necessary to have the EB-5 petition approved first, and only then can an application to adjust status be submitted.
What is the minimum investment required for the EB-5 program?
An investment of at least $1,000,000 is required. If the investment is made in a targeted employment area, the minimum requirement is $500,000.
Will my investment in a Regional Center project be returned if my petition is denied by USCIS?
It is important to understand the terms of the agreement to ensure a refund. Many Regional Center projects use specially-created escrow accounts in which your investment is frozen until your application is approved by the USCIS. Your money remains in that account and is not used for investment purposes unless and until your application is approved. In the event that your petition is denied, your investment will be returned to you. Other Regional Center projects use escrow accounts which permit the release of funds — or a portion — after a certain number of investors have had their petitions approved. In the event of an I-526 petition denial, they are obliged to return your funds. Some Regional Center projects do not use escrow accounts, but may be obliged to return the funds in the event of a refusal. Some escrow agreements may cover I-526 denials but not visa denials. Other agreements may require a refund within a certain period of time, or when a new investor is found, or “as soon as commercially practicable”. Certain agreements may only refund the $500,000, but not the administrative expenses.
How does the US investment program differ from 2nd passport programs?
2nd passport programs offered by countries such as St. Kitts enable an investor to “buy” a passport immediately, without going through an intermediate “green card” phase. Depending on the country, these passports usually allow for visa-free travel to dozens of countries. A US green card, while facilitating the receipt of a visa to many countries, does not allow for visa-free travel if the holder is a national of a country for whom visas are required.