EB-5 Basics

The main objectives of the program include providing employment opportunities to U.S. citizens and stimulating the American economy with foreign direct investment. The program has historically been used to raise money for American industry in times of economic distress, such as during the early 1990s recession (which led to the birth of the program) and in the 2007-08 financial crisis (when the Regional Center program became prominent). In exchange for assisting with these economic objectives, qualifying investors and all eligible family members can avail the opportunity to receive green cards.

Although the EB-5 program is sometimes advertised as or mistakenly interpreted as an easy way for the wealthiest to immigrate to the U.S., it is intended and has been availed by investors from a variety of economic backgrounds.

Regardless, it is important to note the entire EB-5 process from start to finish can take an investor and eligible family members several years to complete. Completion, in this case, means receiving unconditional green cards and the investment capital back. During this time, an investor and family members may move to the U.S. on a conditional green card, or adjust their status from a nonimmigrant status if they are already present in the U.S. To complete the journey to unconditional green cards, an investor must demonstrate the investment has fulfilled the requirements set by the U.S. Citizenship and Immigration Services (USCIS). Any investor must take the time to fully understand the whole immigration process, the EB-5 project structure, and all associated risks before embarking on the EB-5 journey towards permanent residency.

Where does AIIA fit into all of this?

AIIA is a non-profit organization of EB-5 investors from around the globe dedicated to informing, educating, and advocating on behalf of all EB-5 investors. While some of us have successfully completed the process, having earned our unconditional green cards and recovered our investment capital, others have received only one, and some unfortunately neither. While a few have been defrauded, others have faced mounting delays with their immigrant petitions,and most of us have struggled our fair share throughout the process. This is why, as fellow investors and stakeholders in the EB-5 world intending to share lessons from our own journeys, encourage you to thoroughly go through the resources AIIA has put together to evaluate the risks before you make your decision.

Immigration via an “At-Risk” Investment

All over the world, several countries offer immigration via investment programs, often referred to as “golden visa programs”, sharing similarities but with one major difference from the EB-5. At its very core, the EB-5 program requires a foreign national to make an “at-risk” Investment in a U.S. commercial enterprise. As the U.S. government does not offer or underwrite any EB-5 investments, the program shares many common risks with other private investments. By definition, there can be no guarantee on the return of investment to the investor. Any project which guarantees a return on an investment, such as purchasing real estate, a guaranteed pay out, and so forth, violates the “at risk” requirement of the EB-5 program and thus disqualifies investors from the benefits of the program. Such deals, often found online or pitched to investors, guarantee assets in return for investments and are oftentimes seeking to defraud investors by appearing to mitigate the risk inherent in the EB-5 process.

Even though funds must remain at risk, this does not mean the EB-5 investment must be unnecessarily risky. Risks can be mitigated by proper deal structures by the issuer and traditional due diligence by the investor. Due diligence for projects is an extensive process and investors can utilize Foreign intermediaries or EB-5 Private Placement Consultants registered with the Financial Industry Regulatory Authority, or FINRA, who are experienced in vetting EB-5 Investments.

In addition to the possibility of not receiving your investment capital back at the end of your investment period, an investor may face immigration risks such as extremely delayed processing times or even complete petition denials due to poorly filed documentation, incriminating evidence, or similar reasons. As delayed processing by the USCIS or external global events directly affects the timeline between filing I-526 and receiving conditional green card(s), investors may struggle with time-sensitive conditions, such as family planning, employment offerings, and children “aging out” of visa eligibility. Such risks can be mitigated by an experienced EB-5 immigration attorney who can better assess an investor’s overall application and suggest suitable strategies.

Important to note, while funds may be returned with a substantial degree of interest in a typical non-EB-5 Private Equity Investment scenario, traditional EB-5 projects tend to have minimal returns for investors apart from their potential immigration benefits.

Parties Involved in the EB-5 process

Foreign Intermediaries

A foreign intermediary, otherwise referred to as an “overseas agent”, is an intermediary who connects foreign investors to investment issuers looking to raise EB-5 capital. Agents can also provide insight into investment opportunities and the immigration process, assist documenting source of funds, and help with foreign remittance and local tax compliance. Consulting with a foreign intermediary is often the starting point for many immigrant investors, especially those living outside the U.S. who may prefer to work with someone local to overcome language and cultural barriers.

Agents are typically compensated via a commission from the project. Due to the fact these agents typically conduct businesses outside the U.S., and therefore outside of the U.S. Securities and Exchange Commission’s (SEC) jurisdiction, legal oversight surrounding their representations, methods and project proposals is limited. We has put together a list of foreign intermediaries from different countries who support AIIA’s mission of advocating for and safeguarding the interests of EB-5 investors globally.

Investment Specialists

EB-5 investment specialists, also known as Private Placement Consultants, help investors conduct due diligence on EB-5 projects by evaluating a potential project’s risks and rewards, job-creation predictions, offering documents and a variety of relevant factors. These specialists can offer unbiased investment advice about EB-5 projects, and will even help an investor select a project which corresponds with the investor’s immigration and investment goals. Essentially, the specialist acts as an auditor who will conduct due diligence on project offerings for investors while also helping investment issuers and developers raise EB-5 capital.

Unlike foreign agents, investment specialists are required to comply with the laws and rules laid out by the SEC and must be registered with FINRA which is an independent, non-governmental regulator for all securities firms doing business with the U.S. public. FINRA-registered representatives are charged by the U.S. Congress to protect investors by making sure the securities industry operates fairly and honestly, and have to undergo a thorough background check before they can advise on EB-5 investments. Another notable advantage of using Private Placement Consultants is they can often show investors EB-5 projects which are not easy to find online.

These professionals are required to be independent from any other parties involved in the EB-5 process. If they are associated with any related party, they are required to disclose such association to their clients, the EB-5 investors. To further assist you in your decision-making, we have compiled a list of investment specialists based on feedback from AIIA members who have utilized their services, as well as their support of AIIA’s mission.

Immigration Attorneys

Immigration attorneys act as an investor’s trusted representatives when going through the immigration process. They assist investors with filing all immigration paperwork submitted to the USCIS, preparing source of fund documentations, and reviewing project offering documents, while disentangling the involved intricacies.

Their primary role is to ensure a project is structured to meet the strict requirements of the EB-5 program and prepare immigration petitions including supporting documentation to be filed with the government agencies, guide the investors in immigration matters, and find solutions to problems which may arise throughout the course of the EB-5 process. Important to note, however, is that they will typically handle only the immigration technicalities and cannot advise investment related matters. AIIA has put together a list of experienced and trusted EB-5 immigration attorneys who can guide investors through their immigration process.

Securities Attorney

Investors may choose to hire separate attorneys specializing in financial securities to evaluate legal documents pertaining to the use of investors’ funds, including project structuring, compliance with relevant securities laws, and any protections offered to investors against financial loss. Although they are not necessary to the EB-5 process, they can be incredibly helpful at evaluating project documents further. When signing any operating or offering documents, a securities attorney can give an investor foresight into any contractual red flags.

Some securities attorneys can provide insight to existing investors as well, such as in a scenario where an investor’s funds have been mismanaged by an issuer or any other party in the process.

Investment Issuers

Investment issuers are companies which sell securities to fund their internal operations. Put simply, they oversee the investment process and handle an investor’s funds throughout the immigration process. Investment issuers most often take the role of managing the fund which collects investment capital from multiple EB-5 investors and conducts all business with investors. In fact, any typical offering documents for a project will be signed between an investment issuer and an investor rather than an investor and the project developer directly.

Developers

A project developer can be an individual or a corporation in charge of developing the EB-5 project. This party oversees all direct project management such as construction, obtaining permits, and so forth. In certain cases, a developer may own and operate the project and raise EB-5 capital as the issuer for their own project.

EB-5 Projects

Investors seeking EB-5 visas are required to invest their funds into a New Commercial Enterprise (NCE) for a specified period of time. Generally, investors have two choices when choosing how to invest their funds:

1. The majority of EB-5 investors invest in a project through an investment issuer where the issuer takes on putting economic analyses and contractual documents together as well as ensuring compliance with SEC regulations, vetting developers and project oversight. Generally, investors tend to prefer this investment option as it does not require them to be actively involved in the day to day operations of the project.
2. Alternatively, an investor can create their own EB-5 projects or invest in a troubled business, thereby involving a more direct investment into the project. While the investor cannot actively run the business until they are legally allowed to work in the U.S., they can hire someone to manage this enterprise in the meantime. This option is favored by entrepreneurs looking to build labor-intensive businesses.

New Commercial Enterprises

A New Commercial Enterprise (NCE) is the entity which the investors must send their money to. When using the Direct investment model, the money invested must be spent by the NCE to hire employees needed to fulfill the terms of the EB-5 program. In the Regional Center model, the NCE is where all project investors ‘pool’ their money before it is invested either in the form of a debt or an equity offering into another entity which will then spend the money to create jobs on behalf of the NCE.

Regional Center vs Direct Investments

This section seeks to introduce the broader differences between the two kinds of EB-5 project. For investors seeking a more in-depth understanding of EB-5 Regional Center projects, AIIA has compiled an unabridged guide to the Regional Center project structure.

In 1993, in order to make the program more accessible, the U.S. legislature created the Regional Center (RC) Program, which allowed investment issuers to pool investment funds from multiple investors into a singular project. The purpose of the RC program was to concentrate the economic impact of an EB-5 project by allowing pooled investment projects to be erected in specific geographic areas. All in all, this benefits the investors by utilizing flexible job creation requirements and benefits the developers and business owners by allowing for larger, more expensive projects to receive EB-5 funding.

In contrast, a Direct Investments is structured differently as the NCE and the project being developed are essentially the same and the investor sends the investment directly into the project’s business fund. However in a RC model, several investors will send their investments into a pooled fund, the NCE, which is managed by the Investment Issuer (also known as the NCE Manager). The NCE then invests the money into a separate development project which creates all jobs on behalf of the NCE, also known as the Job Creating Entity (JCE). This distinction can be difficult to grasp for investors just entering the EB-5 world. Therefore, AIIA recommends reading our EB-5 Regional Center Projects page for detailed breakdowns of NCEs and JCEs complete with visual aids for clarity.

Job creation in pooled investment projects through RCs is divided amongst all investors in a project. For example, say there are ten investors in one project. Because each investor’s green card status is contingent on the creation of ten jobs, this pooled project must create at least 100 jobs (ten investors x ten jobs = 100 jobs necessary for all investors to receive a green card).

Private Placement Memorandum and other offering documents

Under the U.S. Securities Law regulations, all EB-5 investment issuers must present investors with an offering document called the Private Placement Memorandum (PPM) which outlines all parties involved in a transaction, the terms and conditions of the investment, project description, associated investment risks, and any protections which may be afforded to an investor. The PPM also contains detailed information about how an investor’s money will be spent, how the required jobs will be created per investor, repayment and other terms. The Subscription Agreement and Operating Agreement are signed by the issuer and the investor.

In some cases, issuers and developers may promise perks or alternative repayment clauses to investors verbally. However, if these verbal promises are not specifically mentioned in the PPM, they are illegitimate claims and have no legal weight. Therefore, investors should review their project’s PPM extremely carefully before signing in order to ensure the terms which an investor assumes apply to their investment are actually memorialized within the PPM. We encourage all potential investors to conduct project due diligence on their own or through an independent third party.

EB-5 Visa Advantages and Benefits

Although, in the end, all green card holders stand on an equal footing in terms of benefits, there are several reasons why the EB-5 might be a better route to pursue for foreign investors looking to immigrate to the U.S.

Many applicants choose to invest through EB-5 given the excruciatingly long wait periods for other employment-based visa programs such as the EB-2 and EB-3. Similarly, others under nonimmigrant visas such as H-1, L-1 and F-1 seek to avoid the large number of restrictions which come with such categories. The EB-5 program provides a direct pathway to green card status and removes the need for consistent visa renewals. Especially for many families, EB-5 is a way to mitigate the emotional stress of renewing a nonimmigrant visa.

EB-5 Requirements

Investors must be aware of the following key EB-5 requirements :

1. Investor must be admissible to the U.S. in accordance with the Immigration and Nationality Act. Some of these factors may include inadmissible crimes, past immigration record and unlawful presence, health status, among other qualifications.
2. Sources for investment capital must be documented, legitimate and verifiable. This is why it is vitally important for investors to retain an experienced immigration attorney who will ensure the source of funds are eligible for EB-5.
3. Investment must be invested in a qualified EB-5 project that utilizes the investor’s funds to create at least ten new jobs.

EB-5 Investment Amounts and Costs

The EB-5 program stipulates a minimum investment threshold for investors to qualify. The minimum investment varies depending on the location of the project which is receiving the investment capital. If the project location falls within a Targeted Employment Area, the minimum investment threshold is lower - $800,000. A Targeted Employment Area, otherwise known as a TEA, is an area with boundaries drawn by the Office of Management and Budget based on the most recent census data. These boundaries distinguish between areas considered “rural” based on their population size or areas which have “high employment”, totalling 1.5 times the national average, These areas target rural and high unemployment areas to incentivize job creation and stimulate local economies.

For projects not located in a rural area or TEA, investors must contribute a minimum of $1,050,000 to the project of their choice. Infrastructure projects also qualify for the lower investment of $800,000 even if the project is not located in a TEA. This capital must remain invested in the chosen project until the conditional residency period of the investor has been completed.

In addition to the invested capital, EB-5 investors should expect to incur other expenses for legal assistance, filing fees, and other administrative costs. These upfront expenses are in addition to the minimum capital investment. Note that these costs are typical for EB-5 projects from investment issuers. For investors seeking to create their own projects, click here.

Other Important Considerations

Redeployment

PPMs will often have a “redeployment” clause which must be reviewed carefully. What it essentially implies is if a project is ready to repay investors before they have finished the minimum required period of time their money must remain invested or if the project repays earlier than initially promised, an investor’s capital could be reinvested into another project. Redeployed funds are managed by the investment issuer and can be shuffled into new commercial enterprises with or without the investor’s consent depending on the specific language of the PPM.

The investment issuer usually holds a monopoly over the investor’s funds during this time and may sometimes opt to reinvest them into a project with higher returns but far higher risk portfolios. In many cases, the investor will have little to no say in how their investment is redeployed.

Country Caps

U.S. immigration programs receive the most immigration petitions from large, densely-populated nations, especially countries like China, Vietnam and India. Although the EB-5 program is meant to provide a faster path to permanent residency than other employment based visas, applicants from these countries may encounter longer wait times because of an immigrant quota called a “country cap”. Essentially, the country cap ensures no single nationality occupies more than 7% of the total number of foreign nationals accepted into the EB-5 program.

If over 7% of the total visa pool is occupied by investors from one country, that country will experience a “visa backlog.” Even though investors can still apply to the program, they are not eligible to receive a green card until all applicants before them have received their green cards. Investors from backlogged countries may wish to check the USCIS visa bulletin regularly to see if their country of residence is currently experiencing a visa backlog. Investors who invested in an NCE prior to the program lapse in July 2021 will be included under the “unreserved” category and are subject to longer wait periods than new applicants. If the visa bulletin shows a “C” for an investor’s country, this means their country of birth does not currently experience a visa backlog, and their visa category is considered “current”. However, due to the USCIS’s notoriously slow processing times, countries with a large number of applications awaiting processing may already have an impending backlog which is not reflected in the visa bulletin.

Aging out

If investors plan to include their children in their EB-5 petition, they must pay attention to the USCIS’s age requirements for dependent family members. In the early days of EB-5 to be considered a dependent child for immigration purposes, the USCIS considered the age of an immigrant petitioner’s child as less than 21 years old when the visa petition was approved. However, drawn out and unpredictable processing times lead to many investors filing for an immigrant petition long before their child is 21, only for the child to turn 21 before the visa petition is approved.

To remedy this, the Child Status Protection Act (“CSPA”) was passed in 2002 granting investors the ability to “freeze” a dependents age when filing an immigration application. Freezing the dependent’s age does not change the definition of a “child” but allows children at risk of aging out to use a “CSPA age” which is calculated by subtracting the amount of time it took for immigrant petition approval from their age at the time of visa approval subtracted by the amount of time it took for the visa petition to be approved.

(Age when Immigrant Petition is Approved) - (Time for Immigrant Petition Approval) = CSPA Age

For CPSA benefits to apply to a dependent, investors must seek to acquire lawful permanent resident status within a year since visas have become available to them. They may choose to satisfy “Sought to Acquire” requirements by filing a DS-260 or an I-485 form to the appropriate department, paying the immigrant visa fees to the DOS, or other actions recognized by the U.S. government. If the investors failed to satisfy any of these requirements, their child’s age will be re-calculated next time the visa category becomes current, meaning the child could age out before they are available to file for LPR status again.

For some investors, extraordinary circumstances may qualify them for CSPA benefits. However, to qualify for CSPA after a child turns 21, an investor must demonstrate circumstances which directly impacted an investor’s ability to “seek to acquire” their conditional green card. Circumstances which the USCIS has qualified for this exemption include:

• Illness and serious mental/physical disabilities
• Death
• Ill or incapacitated legal counsel
• Ill or incapacitated immediate family members
• Petitions which were refiled with USCIS with corrections

Tax Planning

Before prospective investors file their EB-5 petitions, they must keep in mind they will become liable to pay U.S. taxes on their global income upon receiving the original green cards. There may be additional taxes beyond income tax and capital gains tax which an investor may need to pay, especially for any inheritance, gifts, etc. For a complete guide on U.S. taxes, please refer to AIIA’s Tax Guide for EB-5 investors.

FAQ

Do I need the full amount of money ready before I start my EB-5 process?

It is highly advisable investors have the full investment amount required by the EB-5 program ready to invest and have the full documentation of how these funds were sourced in preparation for filing an I-526 application. Insufficient investment amounts or incomplete documentation may cause the USCIS to issue RFEs or denials which could be detrimental to an investor’s case.

Can I borrow money or get a loan to fund my EB-5 investment?

Yes, however you must be able to prove how you acquired this loan.

Can money gifted by a parent or other relative be used for an EB-5 investment?

Yes, as long as the relationship between the individuals is documented and the donor can prove his source of funds on the gift.

Does the money used for EB-5 have to come from outside the U.S.?

No, it is common for immigrants living in the US on non-immigrant visas to use their U.S. based earnings for their EB-5 investment. However, it may be easier to document US sourced funds.

Can my spouse or child or the main applicant for the EB-5 visa?

Yes. Many foreign nationals choose to have their spouse or child as the main applicant and keep themselves off the application. However, if a child is the main applicant, the parents cannot be added as dependents later.

Will I receive all my money back after I finish the EB-5 immigration process?

This is an “at risk” investment so there can be no guarantee the investor will receive some or all of their money back. The key to secure investment here is project due diligence. Due diligence for projects is a thorough process and investors should never disregard it because it will help them pick a project which meets their risk profile, unless they are prepared to run all financial and background checks themselves.

What are the types of EB-5 projects out there? How do I find reliable EB-5 projects?

EB-5 projects assume many different business models and operate within many different industries. Typical EB-5 projects include:

• Hotels and motels
• Residential buildings
• Mixed-use retail
• Sports stadiums and Entertainment venues
• Restaurants
• Agricultural developments
• Manufacturing
• Biotech and medical technologies
• Casinos
• Convention centers
• Office buildings

Investors can utilize Foreign intermediaries or FINRA registered EB-5 Private Placement Consultants who will have access to a range of EB-5 projects and are experienced in vetting EB-5 Investments.

What is the return on investment on a typical EB-5 project?

Typically, the entire investment amount is expected to be returned to the investor, and in addition a certain portion of the interest. In an RC sponsored project, the interest is split between the investor and the investment issuer, oftentimes not split proportionally as the issuer will usually take a hefty cut. The market average ranges from 0.25% - 2% per year. Interest can be accrued or current and is often paid annually.

How long do I have to wait to move to the United States after I apply for my EB-5 visa?

Investors applying for EB-5 from outside the U.S. must wait until their I-526 has been approved and a consular interview has occurred before moving to the U.S. Investors should factor-in 2-3 years at the very minimum. However, the new EB-5 Reform and Integrity Act of 2022 gives investors hope that processing times will be reduced.

Is there any benefit to applying for EB-5 while already in the US on a non-immigrant visa?

Investors on a valid non-immigrant visa are eligible to concurrently file for their adjustment of status through an I-485 application while residing in the U.S. The main benefit of applying for EB-5 while residing in the U.S. is receiving immigration benefits such as work and travel authorization much sooner than compared to an investor who is applying for EB-5 outside the United States. More information on this is available on our immigration process page. Investors must consult with their immigration lawyer before they make any decisions in this respect.

Can I enter and exit the US while my EB-5 visa application is pending?

Yes. Investors should speak to their immigration attorneys to be prepared on what to say at immigration checkpoints if asked about their pending EB-5 petition.

What is the difference between a conditional green card and a permanent green card?

A conditional green card is just like a normal green card except it expires after two years, at the end of an investor’s conditional residency period. Towards the end of the conditional residency period, the investor must file a petition to have the conditions removed.

Once I get my green card do I have to live and remain in the US? How much time do I need to spend in the United States?

To keep one’s status, an EB-5 investor needs to pay attention to the physical presence requirements imposed on all green card holders. If an investor needs to be out of the U.S. for an extended period of time, they should work with their immigration attorney to file a Re-entry Permit (Form I-327).

Does my project need to be completed to qualify for my green card?

There is no connection between project completion and receiving your green card. Each case is different but generally an investor can receive a permanent green card as long as the funds were spent properly and all the required jobs were created in accordance with the project section of the immigrant petition. Adjudication of permanent green card application (Form I-829) is therefore not dependent on project completion but rather the extent to which the requirement of the EB-5 investment was met by the project developer and investment issuer.

When will my EB-5 investment be returned to me?

Investors are eligible to receive their money back at the end of their conditional green card period. Whether or not the project developer returns their investment funds depends on the success of the project and repayment terms listed in the offering documents. It is important for investors to conduct their due diligence before they invest to ensure they are making the right financial decision.

Can I create and invest in my own business and get the EB-5 visa?

Yes - Investors are able to create and invest in their own business in order to obtain the EB-5 visa, referred to as a “Direct Project”. As long as the business is able to create at least 10 new jobs, a new business owned by the investor is valid for the EB-5 program. However, for a number of practical reasons, this option could be incomparably more burdensome and expensive compared to a passive investment in a ready-made RC project.

If I already own a business in the United States, can I invest in it instead of another EB-5 offering?

In some cases, investors may be eligible to invest in their own pre-existing business as part of the EB-5 program. However, investors must follow strict procedures which separate their investment funds from their business funds. Investors cannot “forego investing” by keeping their own funds in their bank account. We recommend speaking with EB-5 immigration attorneys that specialize in helping investors with Direct projects.

Can I buy a home or apartment in exchange for an EB-5 visa?

NO! A fundamental component of an EB-5 investment is that the qualifying investment must remain “at risk’ for the entirety of an investor's immigration process. There can be no guarantees of capital repayment, nor any assets promised to the investor in exchange for an investment. If a project requires an investor to buy real estate in their project in order to qualify for EB-5, the project is most likely attempting to scam investors.

Is the minimum EB-5 investment going to change?

Yes, in 2027. The new Reform and Integrity Act passed in March 2022 stipulates that the investment amount will increase every five years when the program is renewed in order to keep up with inflation rates.

Would my global income and assets be taxable in both my country of origin and in the United States?

The United States requires its residents to report taxes on their global earnings. EB-5 investors usually become liable to U.S. taxes after receiving their conditional green cards, and thus will be taxed for incomes earned domestically and abroad. There are tax treaties between the U.S. and other countries which, if used appropriately, could help investors avoid double taxation or reduce tax liabilities. It is important for EB-5 investors to consult with tax professionals and conduct effective pre-immigration tax planning. For a complete guide on U.S. taxes, please refer to AIIA’s Tax Guide for EB-5 investors.

Forms

I-526E - Immigrant Petition by Regional Center Investor
I-485 - Application to Register Permanent Residence or Adjust Status
I-131 - Application for Travel Document
I-765 - Application for Employment Authorization
DS-260- Immigrant Visa and Alien Registration Application
I-829 - Petition by Investor to Remove Conditions on Permanent Resident Status
I-327- Permit to Reenter the United States for Lawful Permanent Residents

Acronyms

CGC- Conditional Green Card
CSPA- Child Status and Protection Act
EAD- Employment Authorization Document
FINRA- Financial Industry Regulatory Authority
JCE- Job Creating Entity
LPR- Lawful Permanent Resident
NCE- New Commercial Enterprise
NOID- Notice of Intent to Deny
NVC- National Visa Center
PPM- Private Placement Memorandum
RC- Regional Center
RFE- Request for Evidence
SEC- Securities and Exchange Commission
TEA- Targeted Employment Area
USCIS- United States Citizenship and Immigration Services