By Chandan Goswami and Marko Issever

What is an EB-5 Visa ?

The U.S. government created the EB-5 Immigrant Investor Program to encourage foreign investment in U.S. businesses. In exchange for investing in a business that creates jobs for U.S. workers, foreign nationals and their families are eligible to become permanent residents of the US. The program’s name, “EB–5”, comes from the visa category for which immigrant investors apply – the Employment-Based Immigration: Fifth Preference EB-5.
While the program has evolved considerably since its creation in 1990, there are currently two ways for foreign investors to obtain an EB-5 Visa:
1. Direct investment in a new or existing commercial enterprise that creates jobs.
2. Investing capital through a “Regional Center”, a government-approved firm, that actively manages investor funds and the immigration approval process.

If you are a citizen of any country other than the United States and are looking to start a life in America, then you should consider applying for the EB-5 Immigrant Investor Program, administered by U.S. Citizenship and Immigration Services (USCIS). Participating in the EB-5 program means making a capital investment, but as soon as USCIS determines that the receiving business of your investment qualifies for the EB-5 program, then you, your spouse, and your children under 21 have a one-way ticket to obtaining a permanent residency “Green Card” from the United States. The USCIS allocates 10,000 visas every year under the EB-5 programme or Immigrant Investor Program to immigrants and their families, whose qualifying investments result in the creation or preservation of at least ten full-time jobs for US workers.

What are the requirements of EB-5 Visa?

EB-5 visa applicants are required to invest at least $ 900,000 into a Regional Center project as long as the investment is either within a high-unemployment area or a rural area in the United States. If these conditions are not met, the minimum qualifying investment becomes $1,800,000. When these funds are deployed into the economy, they need to result in the creation of at least 10 full-time jobs for U.S. workers. An investor need not worry about the timing of this job creation. Once the investor receives his conditional permanent residency status, the receiving company will have two years to generate ten or more jobs in order for the investor to change his status from conditional to permanent.

Investing capital through a Regional Center provides several major benefits to immigrants seeking U.S. residency through the EB-5 program. One of the most important advantages is the ability to count both direct and indirect jobs towards the “job creation requirement”.

Direct job creation is a result of an investment which has created and sustained ten new actual identifiable jobs over a two-year period. Under the Regional Center program, investors can also satisfy the job requirement by showing the indirect job creation from pooled funds of all investors in the project. These jobs can be created collectively or as a result of capital invested in a commercial enterprise affiliated with a Regional Center.

In other words, the investor does not need to show that he or she directly hired any employees. The burden of proving job creation is passed onto the Regional Center. The Regional Centers, in turn, hire experienced economists who perform economic analysis and prove that sufficient direct and indirect jobs are created as a result of the project.

Each EB-5 Visa applicant must invest a minimum of $1,800,000 in a job-creating venture. If the business receiving capital is located in a Targeted Employment Area (TEA) – defined as a rural area or a region with high unemployment – then the minimum investment amount is reduced to $900,000. Today, most EB-5 investment opportunities are located in TEAs.

EB 5 VISA PROCESS ( Minimum – 60 MONTHS)

Research immigration attorneys

Then decide with whom to work. Year Zero

Engage a broker dealer

Make sure the broker dealers have eligible EB-5 projects before deciding to work with them. Year Zero     

Evaluate projects

Read brochures, Private Placement memorandums, and all other supporting documents. Year Zero

Pick a project!

This should be an EB-5 eligible investment project sponsored by a particular Regional Center. Year Zero

Complete Investor Questionnaire

Year Zero

Compile source of funds documentation with attorney

Year Zero

Complete Subscription Agreement

Year Zero

Transfer funds to the Escrow Account of the project

Year Zero

Attorney files the EB-5 petition package (Form I-526) with USCIS

Stage 1 complete! Estimated wait time for approval of I-526 is 14-16 months. Fee: $3,675 Year Zero

Receive I-526 Petition approval!

16 months

Time to file more forms

If you are in the United States with a nonimmigrant visa, then file Form I-485 (Adjustment of Status). If you are overseas, file Form DS-260 at the National Visa Center and then attend interview at local US Consulate. Fee: $1,140

Wait for approval

For those in the United States, this means a 4-12 month waiting period for approval of I-485. For those overseas, awaiting an interview and receipt of EB-5 Visa could be a 6-12 month waiting period. 24 months

Receive two-year conditional green card

Start counting five years to be eligible to apply for full US citizenship. Stage 2 complete! 24 months

Reside in the U.S. for two years as a temporary resident

Not to mention you now have full rights to live and work

Attorney files I-829 Petition with USCIS to remove conditional resident status 90 days before the two year period ends. Fee: $3,750

Receive I-829 Petition approval & permanent green card

Congratulations! 54 months

Investors’ principal and return, if any, determined and distributed pursuant to the Limited Partnership Agreement.

Stage 3 complete! 60 Months

Reserve Bank of India (RBI) and Investment

A substantial amount of investment is required to become an eligible EB-5 investor. Therefore, it becomes pertinent to conduct proper due diligence of the relevant Indian Government regulations that control the ability to make an Overseas Direct Investment (“ODI”). The RBI in its monetary policy review (2015), raised the remittance limit, under Liberalized Remittance Scheme (LRS), to $250,000 per person per year that was earlier limited to $125,000 thus making it easier make an investment.  However, in July 2015, the RBI issued a circular, thereby severely restricting the ability of Indian nationals to remit funds, outside of India, to make an investment that qualifies as investor for Emigration purpose. The relevant portion of the circular is extracted herein for easy reference.

“A.7 Emigration
A person going abroad on emigration can draw foreign exchange from AD Category I bank and AD Category II bank up to the amount prescribed by the country of emigration or USD 250,000. This amount is only to meet the incidental expenses in the country of emigration. Further, this remittance is not for undertaking any capital account transactions such as overseas investment in government bonds; land; commercial enterprise; etc. No amount of foreign exchange can be remitted outside India to become eligible or for earning points or credits for immigration.“

[Please read here: https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=9899&Mode=0#7]

We should remember that the RBI circulars do not bar any one from investing abroad but the circulars and directions are aimed at creating a system of checks and balances which needs careful navigation and planning to make a legal investment.