Eligibility Requirements

May I apply for the EB-5 program if I have been previously denied a visa to the US?

If you have been previously denied a visa to the US, you may still apply for an EB-5 visa. However, the reasons for the denial should be discussed prior to proceeding with an EB-5 petition. While a prior visa denial does not restrict you from applying for an EB-5 visa, the reason for the denial could factor into whether your petition and visa application are approved. This is why it is critical to work directly with an immigration lawyer who has extensive experience in dealing with visa denials. The last thing you want is to make an investment of $800,000; wait for a substantial period of time; and then have your EB-5 petition or visa application denied for a reason that should have been addressed at the beginning of the process. For example, expungement of a conviction for a crime of moral turpitude is still considered a conviction for immigration purposes and could block your immigration through EB-5. Similarly, a willful, material misrepresentation made on a previous visa application can also lead to an EB-5 refusal. This is very problematic because USCIS and consular officers have become more aggressive in reviewing past visa applications — even some dating back 10 or more years, even after the issuance of visitor visas.

Are there any minimum or maximum age limits for investors?

No, the EB-5 immigrant investor program does not require applicants to be of a certain age. However, because the investor will be signing an investment agreement, he/she must have the legal capacity to contract: usually at least 18 years old (depending on the state or have a guardian act on his behalf) and of sound mental competence.

Is it required that I have a degree of higher education to apply for the EB-5 program?

Some visas for employment-based immigration require that the applicant have at least a bachelor’s degree to apply. Other visa types are even stricter, requiring workers to have a master’s degree or equivalent work experience to qualify for entry. The EB-5 program, in contrast, does not include any education requirements. An immigrant investor who meets the investment qualifications of the EB-5 program can be granted permanent residency without having any higher education.

Do I need to speak English in order to qualify for the EB-5 program?

No, the EB-5 immigrant investor program does not require knowledge of English in order to be considered for the program.

Do I need to have earned the money for the investment myself? What are permitted sources of investment?

No. For example, the money can be a gift. The only requirement would be to show that the gifted money was legally earned, and that taxes (if applicable) were paid on the gift. Another example would be using the proceeds of the sale of real estate to fund the investment, or to take out a mortgage on real estate and use the proceeds for the investment. Stock sales, salary, dividends, interest, inheritance, legal gambling, and settlement funds are all recognized sources of investment.

If a member of the investor’s family works for the EB-5 enterprise, will this count for purposes of the job creation requirement?

Members of the investor’s family may work for the new enterprise, but they cannot be considered as one of the ten employees required for eligibility for the EB-5. Full-time employment requires a minimum of 35 hours per week.

Can qualified individuals from any country apply or are there restrictions based on citizenship?

Citizens of any country may apply for permanent residence in the US through the EB-5 investment program. As long as the applicant is able to leave his home country and has sufficient legally-earned investment capital, he may qualify.

Is it required to show that I am in good health?

In most cases, health does not factor into whether a foreign national may apply for an EB-5 visa. You may be required to report certain chronic illnesses as part of your immigration process, but only serious diseases or disorders may serve as a basis for denying a visa.

Must I have previous business experience to qualify for the EB-5 program?

No, the EB-5 program does not require that an applicant have previous business experience. While some investors do have a background in business, others may have acquired the funds to invest through another source, such as an inheritance from a family member or as a gift.

What documents are required for the EB-5 process?

While documentation is case-specific, dependent on how the investor earned the funds, in general, USCIS will require identification documentation (copies of passports), a resume, tax returns, bank statements, and business documents. After approval, the documents needed to complete the process will depend on whether the investor is consular processing through an embassy or adjusting status in the United States. The embassy will require police certificates from all members of the family at least 16 years old; medical examination results; and statutory documents, such as birth, marriage, and divorce certificates, as applicable. If adjusting status in the United States, police certificates are not required.

What fees and expenses will I incur aside from the $800,000 or $1,050,000 investment?

Besides the $800,000 or $1,050,000 investment, the regional centers require fees to cover their marketing and administrative expenses. In certain cases, these expenses can be negotiated. Legal fees vary, depending on the attorney. Government duties, medical exam expenses, courier costs, and translation can add another $5–10,000.

What is the most common reason for rejection of an EB-5 petition?

In most cases when an EB-5 visa petition is rejected, the petitioner failed to demonstrate that he/she had legally earned his investment capital. All funding used to make the required EB-5 investment must be lawfully gained through wages, dividends, legal business operations, sales, investments, or gift or inheritance of lawfully earned income. Any illegal financial gain or untraceability of all or part of the investment to a lawful source can result in a denial of the petition. Cases in which there has been tax evasion or the use of untraceable cash can also be problematic.

What is the most common reason for rejection of a petition to remove conditions?

The most common reasons for refusal of the condition removal petition are in circumstances when the EB-5 enterprise fails to create the required number of jobs or if there was a “material change” in the project between the initial petition and condition removal stages. If there has been a “material change”, another petition for the “new” project may be necessitated.

What percentage of EB-5 petitions are approved?

While statistics vary over the years, usually between 80–90% of I-526 initial petitions are approved, and between 90–99% of I-829 condition removal petitions are approved. There have been time periods where the I-526 approval rate has substantially decreased — to 60% or less. USCIS frequently publishes the approval statistics.

Where can I find more information about the EB-5 program?

Further information regarding the application process, requirements, and benefits of the EB-5 visa program can be found on the website of the US Citizenship and Immigration Services (www.uscis.gov). If you have specific questions because of the complexity of the program, you should preliminarily consult with a legal professional before deciding to proceed.