Last updated: Dec 01, 2022
Given the EB-5 immigration process is extremely complex and drawn-out, AIIA has compiled an overview of every step in the immigration process including details about what investors can expect and what assistance from third-parties they may wish to seek out. For new EB-5 immigrant investors, we recommend going through EB-5 Basics before reading through this page.
If you are in the United States on an existing non immigrant visa select “US Resident” on the table of contents or else select “Non US Resident” to see the step by step breakdown of the immigration process.
Step 1: Is EB-5 right for you?
It is important for a future immigrant to the United States to gauge whether the EB-5 Immigrant Investor Program is a good fit in comparison to other programs before investing. Although the path to permanent residency through investment in a commercial enterprise seems like an easy trade-off, the EB-5 journey requires investors to take on a considerable amount of risk. Past EB-5 investors have had varied experiences with EB-5 and it is important for future immigrant investors to have a clear understanding of the program’s advantages and disadvantages. With that goal at its core, the American Immigrant Investor Alliance was created by and for EB-5 investors to provide straightforward, unbiased information.
Investors must be mindful of whether their financial situation qualifies them for the EB-5 program as most investment issuers require the full investment amount to be available for investment with meticulous source of funds documents verified by an immigration attorney BEFORE filing their petitions.
Step 2: Begin your EB-5 Process
Research EB-5 projects
Selecting an investment project is one of the most crucial steps in the EB-5 process requiring careful consideration and professional assistance. In many cases, an EB-5 investment specialist can help identify potential projects, conduct due diligence, and answer important financial questions about various EB-5 projects. During the due diligence period, potential investors can weigh the benefits of investing:
- With an EB-5 project sponsor – that does all the legwork of creating a project that can use either
- Regional Center EB-5 model, where the investment issuer pools your investment in a New Commercial Enterprise (NCE) with other investors and invests the combined funds in a large-scale project
OR - uses the Direct EB-5 model for a single investor in a specific business.
- Regional Center EB-5 model, where the investment issuer pools your investment in a New Commercial Enterprise (NCE) with other investors and invests the combined funds in a large-scale project
- In their own Direct projects – By putting together business plans, other documents and creating their own Commercial Enterprise.
Additionally, investors may wish to consider investing in projects located within a designated Targeted Employment Area (TEA) which allows a minimum investment of $800,000 to qualify rather than $1,050,000. Simply put, TEA is either: 1) a rural area, or 2) a high unemployment area. These TEA projects may grant special benefits in addition to the lower investment amount such as prioritized processing of the initial petition and access to set-aside visas allocated to minimize visa waiting times for backlogged countries (historically China, India and Vietnam). In some cases, a government entity solicits EB-5 investments to develop public infrastructure on the federal, state, or local level, and the investment minimum is also $800,000 regardless of whether the infrastructure is constructed in a TEA.
Project due diligence is a critical step in choosing your project and includes evaluation of various factors such as risks, job creation, market situation, and track record of the investment issuer. Since the vast majority of EB-5 applicants invest in Regional Center projects, the immigration process listed below will mostly focus on the EB-5 Regional Center path and may differ for Direct investment. To understand how exactly the EB-5 Regional Center model differs from the Direct EB-5 model, please refer to this page.
Initial consultation and retention of attorney
We highly recommend that potential investors consult an experienced EB-5 immigration attorney to evaluate their case and verify their understanding of the immigration process and timelines before choosing to move forward with EB-5. The main tasks an attorney can guide you through are:
- Initial evaluation of investor’s suitability for EB-5 (admissibility, SOF, timeline, aging out children, etc)
- Approve and agree with client concept for SOF (sources, available documentation, etc)
- Review client’s SOF documents and verify compliance to USCIS policies.
- Prepare and file investor’s petition (I-526E) to U.S. Citizenship and Immigration Services (USCIS).
AIIA provides a list of immigration attorneys who offer initial complimentary consultations. They can give a general idea of whether EB-5 provides a viable path for potential investors to receive green cards in the U.S. based on their country of birth, qualification for other visa types, immigration history, current visa status in the U.S., and other factors. Attorneys will also share the expected timeline for each phase in the EB-5 process and can help put together an immigration plan that works for your specific situation.
However, it is worth noting that immigration attorneys are neither at liberty to help investors select a project nor to share any investment risks, but they can advise investors on the immigration process and may inform on immigration risks related to specific projects.
Once investors decide to pursue the EB-5 program, they may retain an immigration attorney and begin collecting documents for preparing their petition. This process can take anywhere from a few weeks to months depending on the complexity of the specific case and the amount of documentation provided to the attorney.
Source of Funds
The preparation of the EB-5 case requires investors to prove the lawful source of all invested funds. Investors may use various sources to fund their investment, including gifts, business earnings, salary savings, etc. All these operations must be documented to prove lawful origination of the investment amount and administrative fees collected by the project issuer. The documentation required for this step may be extensive. Your immigration attorney will help evaluate potential sources of funds, identify the simplest source to use, and advise on the required documentation. Investors located in foreign countries with currency-transfer restrictions or where certain documents are harder to acquire may benefit from working with foreign intermediaries who have localized and specialized knowledge in these matters.
Step 3: Finalize project selection and wire funds
After an investor has prepared their source of funds documentation with an attorney, verified their qualification for the EB-5 program, selected an EB-5 project, and reviewed and signed the project documents, the investor may transfer the investment funds to the NCE’s escrow or directly into the NCE’s bank account depending on the terms of the offering.
Once funds have been sent to the NCE, the investment issuer will provide a receipt of the transfer. The receipt and the countersigned documentation are included in the petition which is filed by the immigration attorney. I-526E petition consists of the following parts:
- Investor’s personal information and official documents
- Source of funds documents for the invested capital
- Wire transfer receipts from remitting the investment
- Investment project information (provided by Investment Issuer)
- Countersigned project offering documents
Immigration attorneys typically oversee any incoming or outgoing records of the investment, must be informed on all transactions, and ideally approve of every step as is is crucial to the success of the immigration process.
Step 4: File I-526E Petition
The Form I-526E petition is the first filing in the immigration process and is submitted to the USCIS for adjudication which can take anywhere from one to three years or even longer.
For RC investors, project related documents will be prepared and provided by the investment issuer. The petition must also include the government filing fee. The USCIS still requires paper filings for many immigration benefits, including the I-526E petition, so the immigration attorney must print the forms and all supporting evidence and mail a physical copy to the USCIS. Typically within two weeks of filing, the USCIS issues a receipt notice by mail confirming receipt of the I-526E petition. Investors can track the progress of their cases online using the receipt number found on their receipt notice but tracking information is limited and updated infrequently. In order to avoid unnecessary delays, many attorneys may recommend using a U.S. mailing address such as the attorney’s office or the residence of a family member rather than a foreign address.
Once the I-526E petition has been filed, investors currently residing in the U.S. on certain types of non-immigrant visas may immediately file their I-485 petitions to adjust their status to that of a lawful permanent residence. This option enables them to obtain their work authorization even when their I-526E petition is pending. This option is discussed in more detail below.
The I-526E petition itself may remain pending for many years with no further updates before it is processed by the USCIS. If there is a significant delay in processing of your I-526E petition, we recommend going through our immigration process support.
Step 4.5 Concurrent Filing of I-485 (available ONLY for investors residing in the U.S.)
EB-5 investors physically present in the U.S. on certain non-immigrant visas may file their Form I-485 application for adjustment of status concurrently with their I-526E petition. The adjustment of status changes a foreign national’s non-immigrant status to lawful permanent resident (green card) status. Prior to the enactment of the EB-5 Reform and Integrity Act in March 2022, EB-5 investors could not file their I-485 application until they received their I-526 approval, nor could they avail of any other immigration benefits including in particular authorization to work in the U.S and travel with smooth reentry into the U.S. Applicants are now able to concurrently file both the I-526E and I-485 granting them the right to apply for these benefits even if their I-526E is pending.
Investors hoping to file their I-526E and I-485 concurrently must, however, satisfy another important criterion: their country of birth must be listed as “current'' for visa issuance according to the Visa Bulletin. If their country of birth does not have the “C” status, individuals from that particular nation would NOT be eligible for concurrent filing due to the visa backlog because they have no EB-5 category visas available. Investors born in over-filed EB-5 countries (such as China, India or Vietnam) should pay particular attention to this requirement since they could be subject to a visa backlog.
Temporary Work and Travel Authorization
The main benefit of concurrent filing is that applicants can file for work and travel authorization even when adjudication of forms I-526E and I-485 is pending. The two benefits are explained below.
Form I-765 is an application for work authorization meant to provide investors with temporary ability to work before receiving their conditional green card. Approval of form I-765 grants investors with an Employment Authorization Document (EAD) which gives them access to the U.S. job market. Given that the process for I-485 approval can take a long time (see Step 6), the I-765 form provides investors with a means of finding employment and financially sustaining themselves and their families in the meantime.
Form I-131 is an Advance Parole (AP) application which authorizes an investor to receive travel documents allowing them to leave and enter the country without compromising the I-485 application. With advance parole, an investor waiting for the conditional green card can continue to travel to and from the U.S. as a temporary resident.
These two benefits (work and travel authorizations) may sometimes be combined into one document known as the “combo card.” Note that the work authorization and the travel authorization are both temporary and need to be renewed every two years.
Pre-Existing Visas
When an investor files the I-485 application with the USCIS, the immigration attorney should be consulted to determine how to maintain the underlying nonimmigrant visa and immigrant status. Some nonimmigrant visa holders are eligible to depart the United States without risking their adjustment of status application. For other visa holders, departing the country before receiving their advance parole documents may cause their I-485 application to become “abandoned”. In the event they do leave the U.S. the I-526E status will remain unchanged but the I-485 application will be considered abandoned and will have to be refiled.
Receipts
After filing both forms I-131 and I-765, the investor should have a total of four receipts in their possession (or expect to obtain all four once the I-485, I-131, and I-765 receipts have been processed). Any dependent family members should have three additional receipts in their possession: the I-485, I-131, and I-765. Although the processing times for the I-131 and I-765 vary, once both forms are approved by the USCIS, investors will often receive both their Advanced Parole and Employment Authorization Document in a single document called a “combo card”.
While these forms remain pending, investors should receive a request from the USCIS to set up a biometrics appointment for the collection of physical identification data. Additionally, investors residing inside the U.S. are required to file form I-693, an application for a medical exam conducted by a USCIS approved “civil surgeon”.
Step 5 (recommended): Join AIIA
Investors and prospective investors at all stages in the EB-5 process are welcome and encouraged to join AIIA’s thriving member community. For investors who have filed their I-526E, AIIA members can offer invaluable insider guidance into the EB-5 immigration process. As a nonprofit organization dedicated to investor advocacy, we pride ourselves on hosting a growing community of over a 1000 immigrant investors from across the globe who are enthusiastic about sharing advice, industry news, and lived experiences with one another. Our member communities offer a wealth of resources on processing times, EB-5 industry news, and all other updates relevant to an investor in the EB-5 program. Outside of our supportive investor community, joining AIIA as a member grants you access to our immigration and investment process support pages, one on one access to industry professionals, and many more exclusive member benefits. Investors and immigrants invested in learning more should visit our membership page.
Step 6: I-526E Approval
When adjudicating an investor’s I-526E petition, USCIS can either approve the petition, or issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). An RFE or NOID can be issued based on an investor’s source of funds documents, the EB-5 project documents, or both. If an RFE or NOID is issued, the investor has an opportunity to provide documentation clarifying any issues raised by USCIS. If the documentation is sufficient to establish the investor meets all eligibility requirements, then USCIS will approve the I-526E petition. RFEs and NOIDs have to be addressed in writing by your attorney without delay.
If an investor had previously filed the I-485, that application should receive its approval after approval of the I-526E. This will allow the foreign investors to retain the ability to work, travel, and attend school anywhere in the US as a Lawful Permanent Residents (LPR). Individuals with an approved I-485 can apply for work authorization without sponsorship from their employer, or even choose to not work at all.
Step 6.5: Immigrant Visa Processing at a U.S. Embassy or Consulate (for Investors Outside the U.S.)*
*varies by country of residence, consulate interview availability, and visa bulletin status
Applicants living outside the U.S. or those who are not eligible to adjust status through the I-485 must apply for an immigrant visa at a U.S. Embassy or Consulate. To obtain an immigrant visa, applicants must submit Form DS-260 online, provide personal documentation, obtain police clearance certificates from foreign countries where they have resided, complete a medical examination, and finally, attend a visa interview at the U.S. Embassy or Consulate.
Investors who intend to file the DS-260 will receive an I-526E approval notice (most likely form I-797: Notice of Action) which will trigger a copy of the I-526E petition to be sent internally from the USCIS to the National Visa Center (NVC). When the NVC receives the petition, it issues all investors a “welcome letter” which contains their case number, invoice ID and the information of all family members planning to immigrate with the main investor. At this point, the NVC will contact applicants with a fee bill for the immigrant visa processing fees and request the submission of personal documentation. It currently takes an average of 60-90 days from the time an I-526E petition is approved for the NVC to issue a fee bill and send a link to complete Form DS-260. Directly following submission of this form, an investor can begin sending the USCIS copies of their civil documentation for approval.
Only after a DS-260, all civil documents, and associated processing fees have been submitted will the NVC begin evaluating the investor's petition.
Consular Interview Process
After Form DS-260 has been submitted and NVC deems the applicant’s file to be “documentarily qualified”, they will be eligible to schedule a consular interview. Every month, U.S. Consulates abroad will send the NVC their availability to interview a specific number of potential immigrants in that month. According to this schedule, the NVC will schedule a consular interview with the immigrant and send relevant files to the U.S. Embassy or Consulate. These interviews are scheduled on a monthly basis.
The consular post will provide instructions for completing the medical examination shortly before the immigrant visa interview. For the medical exam, the U.S. consulate will refer investors to a “Panel Physician” approved by the U.S. Department of State. A medical examination can only be scheduled after the consular interview has been scheduled.
Typically, a consular interview involves reviewing an investor’s immigration history, source of funds, plans for residency, project details, and the current project status. Applicants must be prepared to answer questions about these topics during the interview. A qualified EB-5 immigration attorney can also identify any other issues that may arise during the interview. AIIA offers virtual interview preparation to AIIA members undergoing consular processing in order to ensure all members are adequately prepared for their interview.
If the immigrant visa is approved and all U.S. Immigrant Fees to the USCIS are paid, the consular officer will collect the applicants’ passports and will issue immigrant visa stamps inside. The investor and all family members can then enter the U.S. together or the principal applicant can enter first followed by the others. They become conditional lawful permanent residents starting on the date they are admitted to the U.S. with their immigrant visa and their green cards will be mailed to them shortly thereafter.
Step 7: Receive Conditional Green Card
Non-U.S. Residents
Upon entering the U.S. with the immigrant visa and being officially admitted as an immigrant, they will gain the status of Lawful Permanent Residents. The USCIS will then issue conditional green cards for the investor and his admitted dependents. The investor’s 2-year conditional permanent resident status begins from the date the investor is admitted to the U.S.
U.S. Residents: I-485 Approval
I-485 approval means that an investor's adjustment of status was successful, and they are now considered conditional permanent residents. The USCIS will issue conditional green cards (CGCs) to the investor and their family. Attorneys advise to list their office address for any communication with USCIS to make sure all documents reach the recipients.
Step 8: Conditional Residency Period
The conditional green card is valid for two years. This two year period is called the Conditional Residency Period. This CGC offers all of the same rights and privileges as a permanent green card. The EB-5 investor and their family members on the petition are now considered Lawful Permanent Residents.
Step 9: Filing I-829 Petition
Within a period of 90 days prior to the expiry of the conditional green card, investors, with the help of their attorneys, must file Form I-829 “Petition by Investor to Remove Conditions on Permanent Resident Status.” This document removes the conditional nature of their permanent resident status. Generally, by the form I-829, the applicant must prove that the funds invested in the NCE were spent according to the business plan provided in the I-526 petition and that the investment has led to the creation of at least ten jobs.
Upon filing of the I-829, the USCIS will issue an investor a receipt form I-797 which extends the investor's conditional residency for another two years. If this form expires while an I-829 is pending, investors can file for an I-551 stamp on their passport which extends conditional residence by another year. From this point, investors can continue to extend their conditional residence until the I-829 is approved.
During extended conditional residency, investors will continue to enjoy the same benefits of a lawful permanent resident. Even if their project is left uncompleted, investors may still receive their permanent green card provided the EB-5 requirements have been met. As long as the at-risk investment was maintained throughout the conditional residency period, jobs were created, and the money invested was spent according to the previously filed business plan, the investor will still be eligible for approval of the I-829 petition and receipt of green card.
Step 10: I-829 approval. Permanent Green Card issued
After the I-829 is approved, the Permanent Green Card is issued. At this point, the EB-5 immigration process is completed. The USCIS will issue permanent green cards to the investor and their eligible dependents. Furthermore, after 4 years and 9 months of LPR status (starting from the conditional residency period of two years), investors are eligible to apply for U.S. citizenship.
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
Acronyms
CGC- Conditional Green Card
EAD- Employment Authorization Document
LPR- Lawful Permanent Resident
NCE- New Commercial Enterprise
NOID- Notice of Intent to Deny
NVC- National Visa Center
RFE- Request for Evidence
TEA- Targeted Employment Area
USCIS- United States Citizenship and Immigration Services