EB5 Frequently Asked Questions

INITIAL CONSIDERATIONS

1.    What is an EB-5?
2.    What are the minimum eligibility requirements for EB-5 classification?
3.    Why should I consider seeking an EB-5?
4.    May I petition for an EB-5 if I have already submitted a petition for another immigrant classification?
5.    In an EB-5 petition, who is the petitioner, who is the beneficiary, and how many parties are involved?
6.    Do I need to live in the U.S. to petition for an EB-5?
7.    What is Form I-526?
8.    What is conditional permanent residency?
9.    What is Form I-829?
10.  What are the major differences between a direct EB-5 investment project and a regional center project?

ELIGIBILITY REVIEW STANDARDS

11.  What qualifies as an EB-5 enterprise?
12.  What is a new commercial enterprise?
13.  What is a regional center?
14.  What is a troubled business?
15.  What qualifies, generally, as a lawful source of funds?
16.  What qualifies as investment or being actively in the process of investing?
17.  What is capital?
18.  What is capital that is placed “at risk”?
19.  What qualifies under the job creation requirement?
20.  What is a qualified EB-5 employee?
21.  Is an independent contractor a qualified employee?
22.  What is full-time employment?
23.  What are job-sharing arrangements?
24.  What is the difference between a direct and indirect job?
25.  What is the job creation requirement for troubled businesses?
26.  What is a targeted employment area?
27.  What is the minimum investment amount for an investment in a targeted employment area?
28.  What are the procedure and requirements to apply for a regional center designation?

EVIDENCE AND SUPPORTING DOCUMENTATION

29.  How do I show that the enterprise in which I invested is an EB-5 commercial enterprise?
30.  How do I show that the enterprise in which I invested is an EB-5 regional center project?
31.  How do I show that I have invested or am actively in the process of investing capital?
32.  How should I document and evidence the source of funds?
33.  How do I show that the sources of funds were lawful?
34.  How much invested capital must I evidence for an EB-5?
35.  How do I evidence funds obtained as a gift?
36.  How do I evidence funds obtained through a sale of property?
37.  How do I evidence funds sourced from a loan?
38.  How do I evidence funds acquired from a lawsuit?
39.  How do I evidence funds obtained as part of an inheritance?
40.  What other evidence is useful to show a lawful source of funds?
41.  How do I evidence 10 jobs that have already been created?
42.  How do I evidence 10 jobs that have not yet been created?
43.  How do I evidence indirect job creation?
44.  How do I evidence preserved jobs for a troubled business?
45.  What should be included in a comprehensive EB-5 business plan?

PETITION PROCEDURE

46.  What forms do I need to file to petition for an EB-5?
47.  Once my petition packet is complete, where do I submit the packet?
48.  Can I file my EB-5 petition online? If so, what is the procedure?
49.  Can I file my EB-5 Form I-526 and my Adjustment of Status Form I-485 concurrently?
50.  Will I get any confirmation of receipt from the USCIS?
51.  How long does the USCIS take to process an EB-5 petition?
52.  Are Premium Processing Services available for an EB-5 petition?
53.  May I submit an application or petition for another immigrant classification at the same time that I submit my petition for an EB-5?
54.  Is there any visa backlog for EB-5?

PETITION RESULTS

55.  What types of actions may the USCIS issue after initial review?
56.  What is a Notice of Approval?
57.  What is a Request for Evidence (RFE)?
58.  What is a Notice of Intent to Deny (NOID)?
59.  What is a Notice of Denial?
60.  What may I do to respond to a Notice of Denial?
61.  May I adjust my status to permanent resident after my EB-5 is approved?
62.  How long will my EB-5 approval be valid if I am outside of the U.S.?
63.  What is the procedure for me to get my green card after the EB-5 is approved if I am outside of the U.S.?
64.  After the EB-5 is approved, can I choose between I-485 adjustment of status and consular processing of immigrant visa?
65.  What should I do during the two-year conditional permanent residency period?
66.  When do I petition to remove conditions of permanent residency?
67.  What should I include in my Form I-829 petition to remove conditions?

WHAT VISATOPIA CAN DO FOR YOUR CASE

68.  Do I need an attorney?
69.  If I retain Visatopia, what services can I expect?
70.  If I retain Visatopia, when will my EB-5 be filed?
71.  If I retain Visatopia, will my EB-5 be approved?
72.  If I retain Visatopia, who will by my attorney?
73.  If I retain Visatopia, do I need to meet with my attorney?
74.  What are Visatopia’s fees?

INITIAL CONSIDERATIONS

1.   What is an EB-5?

EB-5 refers to classification under the fifth preference category of employment-based immigration as an immigrant investor. This classification was created through the Immigration Act of 1990’s Immigrant Investor Program.

The Immigrant Investor Program was created by Congress to stimulate the U.S. economy via job creation and foreign capital investments. The pilot program started in 1992. Due to its success, the program has been renewed and reauthorized ever since. Currently, the program is due to expire on September 30, 2015, but this date may again be further extended.

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2. What are the minimum eligibility requirements for EB-5 classification?

Under INA 203(b)(5)(A), the investor is eligible for EB-5 classification if she seeks to enter the U.S. with the purpose of engaging in a new commercial enterprise in which (1) she has invested or is actively in the process of investing a certain amount of capital, and that (2) will benefit the U.S. economy and create full-time employment for at least 10 U.S. citizens, lawfully admitted permanent residents, or other immigrants lawfully authorized to be employed in the U.S. The investor must also engage in a managerial or policy-making capacity in the new commercial enterprise, unless she is investing in a regional center.

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3. Why should I consider seeking an EB-5?

Classification under EB-5 is a very attractive option for those who have the financial means to be eligible. EB-5 eligibility does not require an employer sponsor to act as the petitioner for the investor and does not require going through the labor shortage attestation process, which is usually required for other preference categories and can be a time-consuming process. In addition, there is no visa backlog for this category, priority dates are current, and the quota for EB-5 status is often higher than the number of petitioners for EB-5 classification. This means more immediate consideration and processing of an EB-5 petition.

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4. May I petition for an EB-5 if I have already submitted a petition for another immigrant classification?

Yes, but you must file a separate petition with corresponding supportive documentation and filing fees.

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5. In an EB-5 petition, who is the petitioner, who is the beneficiary, and how many parties are involved?

The petitioner is the person who is requesting the USCIS to consider and approve the petition. The beneficiary is the subject matter of, or the person who benefits from, the petition.

With an EB-5 petition, the investor is both the beneficiary and the petitioner.

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6. Do I need to live in the U.S. to petition for an EB-5?

No. You may petition for an EB-5 outside of the U.S.  After the I-526 is approved and the visa number becomes current, you may file I-485 (Adjustment of Status) to obtain a conditional green card if you are physically present in the U.S., or initiate the consular process for an immigrant visa if you are physically outside of the U.S. After you land in the U.S. with an immigrant visa, the conditional green card will be mailed to you.

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7. What is Form I-526?

Form I-526 (Immigration Petition by Alien Entrepreneur) is the initial petition that the investor must file with the USCIS for EB-5 immigration.

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8. What is conditional lawful permanent residency?

If the investor’s I-526 petition is approved, the investor and her dependents may apply for conditional two-year lawful permanent resident status. If the investor satisfies EB-5 investment amount and job creation requirements during the two-year period, she and her dependents may apply for removal of conditions. Upon approval of removal of conditions, the investor and her dependents may then apply for permanent resident status.

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9. What is Form I-829?

Within 90 days of the expiration of the investor’s conditional permanent resident status, the investor must file Form I-829 (Petition by Entrepreneur to Remove Conditions) to change status from conditional permanent residency to permanent residency. Processing occurs within 90 days of either filing Form I-829 or the associated interview. The investor will still have valid status during the processing time. The investor must demonstrate that she has fulfilled the requirements for EB-5 immigration according to what was petitioned for two years prior in Form I-829. If the petition to remove conditions is approved, the investor may then continue to live in the U.S. as a permanent resident for an indefinite period of time.

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10. What are the major differences between a direct EB-5 investment project and a regional center project?

A direct EB-5 investment project requires investment in and job creation through a commercial enterprise located anywhere in the U.S. A regional center project, however, requires investment in a new commercial enterprise affiliated with a regional center, or in a troubled business within a regional center.

For direct EB-5 investment projects, the job creation requirement may be satisfied by directly creating 10 new jobs. For regional center projects, however, the requirement may be satisfied by directly or indirectly creating 10 new jobs, which in some cases may be easier to satisfy.

A direct EB-5 investment project usually requires the investor to live in the location of investment and to have involvement in day-to-day operations and management. A regional center project does not require its investors to live in the location of investment or be involved in day-to-day operations and management. More investor control over day-to-day operations and management may be a positive or negative attribute of the investment depending on the investor’s goals.

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ELIGIBILITY REVIEW STANDARDS

11. What qualifies as an EB-5 enterprise?

An EB-5 investor may be eligible an EB-5 if she invests in one of three enterprises: (1) a new commercial enterprise, (2) a regional center, or (3) a troubled business.

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12. What is a new commercial enterprise?

A commercial enterprise is defined as any for-profit activity created for ongoing conduct of lawful business, which may include a sole proprietorship, a limited or general partnership, a holding company, a joint venture, a corporation, a business trust, or any other business entity. Businesses may be publicly or privately owned.

A new commercial enterprise is a commercial enterprise that was either established after November 29, 1990, or established on or before November 29, 1990 and is (1) purchased and restructured in a way that is similar to the creation of a new commercial enterprise, or (2) expanded via the investment to the point where a 40% increase in net worth or number of employees results.

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13. What is a regional center?

A regional center is a USCIS-approved designation for enterprises that propose economic growth (e.g., improved regional productivity, increased domestic capital investments, creation of jobs) in a particular geographic area.

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14. What is a troubled business?

A troubled business is a one that (a) has existed for at least two years, (b) has incurred a net worth loss over the two-year period immediately prior to the investor’s priority date on her Form I-526, and (c) the loss has been measured to be at least 20% of the business’ net worth prior to the claimed loss. Successors to a troubled business will be considered to have been in existence for however long the business they succeeded was in existence.

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15. What qualifies, generally, as a lawful source of funds?

The first requirement for EB-5 eligibility requires investment or being actively in the process of investing capital from a lawful source.

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16. What qualifies as investment or being actively in the process of investing?

To be actively in the process of investing, the investor must have more than just an intent to invest or future investment plans without any commitment. Any capital obtained by unlawful means (e.g., fraud, theft, etc.) will not be considered capital. In adjudicating this requirement, the USCIS applies a “reasonable” standard.

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17. What is capital?

Capital refers to cash, inventory, equipment, or other tangible property and cash equivalents. Capital may not be borrowed by the enterprise and is measured at fair-market value in U.S. dollars. Debt secured by the investor’s assets, however, may also constitute capital if she is personally and primarily liable. The debt must not be secured by any of the new commercial enterprise’s assets.

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18. What is capital that is placed “at risk”?

Capital funds must also be placed “at risk,” meaning the investor must bear at least some level of risk in making the investment with the goal of yielding a return. This means that if an investment agreement contains a redemption clause guaranteeing any part of the investor’s investment to be repaid in full, the respective part of the investment will not be considered at risk. This also means that any part of the agreement that guarantees future ownership of a specified asset of the new commercial enterprise does not fall within the scope of being “at risk.

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19. What qualifies under the job creation requirement?

Generally, the investor must consider several aspects to the second requirement for EB-5 eligibility in counting whether the investment has created or preserved 10 jobs, including: (1) qualified employees, (2) full-time employment, (3) job-sharing arrangements, (4) direct and indirect jobs for regional centers, and (5) troubled businesses.

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20. What is a qualified EB-5 employee?

A qualified employee is a U.S. citizen, permanent resident, or other immigrant authorized to work in the U.S. The individual may be a conditional resident, a refugee, an asylee, or under suspension of deportation. A qualified employee does not include the investor, any foreign nationals with nonimmigrant status or who are not authorized to work in the U.S., or the investor’s spouse, son, or daughters.

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21. Is an independent contractor a qualified employee?

Independent contractors are not employees and do not count towards the job creation requirement. Whether a worker is an independent contractor or employee turns on three primary factors: (1) behavioral control, or the right of the business to direct or control how work is conducted through supervision, training, or other means; (2) financial control, or whether the business has a right to direct or control the business and finances behind the worker’s job; and (3) type of relationship, or how the worker and business owner view their relationship. More behavioral or financial control by the business over the worker suggests an employer-employee relationship.

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22. What is full-time employment?

Full-time employment entails employment of a qualifying employee in a position that requires a minimum of 35 hours per week. Full-time employment also includes employment of a qualifying employee created indirectly from the investment. Employment should be permanent, not temporary or seasonal.

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23. What are job-sharing arrangements?

Job-sharing arrangements exist where two or more qualifying employees share a full-time position that amounts to a minimum of 35 collective hours per week. The full-time position must be permanent and constant. The two or more qualifying employees sharing the job must be permanent and must share the benefits associated with any permanent, full-time position. These benefits may include worker’s compensation and unemployment premiums by the employer for the position.

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24. What is the difference between a direct and indirect job?

If the investor invests in a regional center, she may count direct and indirect jobs towards satisfying the job creation requirement. A direct job is an identifiable job for qualified employees within the commercial enterprise in which the investor directly invested capital. An indirect job is a job that was demonstrably created collaterally or as a result of capital invested by the investor in a commercial enterprise associated with an authorized regional center.

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25. What is the job creation requirement for troubled businesses?

If the new commercial enterprise is, however, a troubled business, the requirement to create or preserve 10 jobs does not apply. Instead of the 10-job requirement, the investor must preserve jobs and provide evidence that the number of employees will remain at least at the same level as it was before the investment for at least two years.

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26. What is a targeted employment area?

A “targeted employment area” is an area that is (1) a rural area outside the boundary of any city or metropolitan area that has a population of 20,000 or more, or (2) an area experiencing an unemployment rate that is at least 150 percent of the national average rate at the time the investment is made.

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27. What is the minimum investment amount for an investment in a targeted employment area?

If an investor qualifies as an investor in a targeted employment area, she may satisfy the first requirement with an investment of $500,000.

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28. What are the procedure and requirements to apply for a regional center designation?

If the investor seeks to apply for a regional center designation, she must file Form I-924 (Application for Regional Center Under the Immigrant Investor Pilot Program) along with supporting documents. The investor must define the specific geographic area that the regional center serves, as well as provide a thorough description of how the investor’s investment will create jobs and encourage further investment.

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EVIDENCE AND SUPPORTING DOCUMENTATION

29. How do I show that the enterprise in which I invested is an EB-5 commercial enterprise?

Evidence demonstrating the establishment of an enterprise should include either the articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership, joint venture agreement, business trust agreement, or another type of organizational document for the enterprise.

Evidence should also include any required certificates allowing the enterprise to conduct business in the specific state or city. If not required, the beneficiary must include a statement from the respective authority stating that such a requirement does not exist.

Finally, evidence should show that the required amount of capital ($1,000,000 or $500,000) has been transferred to an existing business and that the investment resulted in or will result in a substantial increase in net worth and the number of employees. This may be demonstrated through stock purchase agreements, investment agreements, certified financial reports, payroll records, a business plan, and other similar documentation of the investment and its effects.

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30. How do I show that the enterprise in which I invested is an EB-5 regional center project?

A regional center is an economic unit, public or private, that is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. An EB-5 regional center is designated by the USCIS based on an application that meets certain requirements.

An EB-5 regional center can usually be defined by two aspects: (1) the geographic area it encompasses; and (2) the industry clusters it covers. Regional centers may consider direct jobs, indirect jobs, and induced jobs in its job creation calculation. To enjoy the privileges of a regional center project, the invested project must be located within the defined geographic area and industry. The project must be supervised by, or administered by, or associated with a USCIS designated regional center.

A regional center must include at least five pieces of supplemental information in its proposal: (1) a description of how the regional center focuses on a specific geographical region in the U.S. and how it will promote growth through more export sales, better regional productivity, creation of jobs, and more domestic investment of capital; (2) a description of how the regional center will create indirect jobs through increased exports; (3) a statement about the amount of sources of capital that have been invested in the regional center, along with a plan for promotional efforts; (4) a predictive statement about how the regional center will have a positive impact on the regional and/or national economy through increasing household earnings, increasing demand for certain services, etc.; and (5) feasibility studies, foreign and domestic market analyses for the specific good or service, multiplier tables, or other forecasting tools. The investor should also include a letter from the USCIS designating the regional center.

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31. How do I show that I have invested or am actively in the process of investing capital?

To show that the you have invested or are actively in the process of investing capital, you should provide thorough, detailed evidence that includes bank statements showing amounts deposited into the enterprise’s business account; documentation of assets that have been purchased for use in the enterprise, such as invoices, sales receipts, purchase contracts, etc.; documentation of property transferred from abroad for use in the enterprise, such as commercial entry documents, transit insurance policies, etc.; documentation of money transferred to the enterprise for shares of stock; and documentation of borrowing secured by the beneficiary’s personal assets, such as loan or mortgage agreements, security agreements, promissory notes, etc. These documents should also include any relevant wire transfer receipts, deposit receipts, and bank statements. Ultimately, all evidence submitted should clearly demonstrate lawful paths of funds used to invest in the enterprise, as well as a pattern of income that is consistent with an ability to invest the required amount of money.

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32. How should I document and evidence the source of funds?

You must provide evidence of the source of funds used towards the enterprise. The evidence should focus on tracing where the funds originally came from. If you obtained the funds in their entirety on your own, then you need only evidence your acquisition of those funds including any relevant documentation. If, however, you obtained funds as a gift, through a sale of property, by a loan, from lawsuits, or from an inheritance, you should provide additional documentation of the sources of those funds.

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33. How do I show that the sources of funds were lawful?

To show that the sources of funds were lawful, the law requires that the investor provide either foreign business registration records; 5 years’ worth of filed corporate, partnership, and personal tax returns; evidence identifying other sources of capital; or documentation of any relevant pending court cases or judgments.

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34. How much invested capital must I evidence for an EB-5?

You need only show where and how you obtained the minimum $500,000 or $1,000,000 required for EB-5 eligibility. Proof of any other income or money obtained is unnecessary.

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35. How do I evidence funds obtained as a gift?

If all or part of the funds were obtained as a gift, you should include evidence such as any gift tax returns, documentation of the transfer of funds from the donor to you as a gift, a statement from both parties to the gift, and documentation of how the donor obtained any funds gifted to you (e.g., income tax returns and salary reports with respect to the donor and her funds).

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36. How do I evidence funds obtained through a sale of property?

For any funds obtained through a sale of property, you should include documentation such as any deeds, purchase agreements, or closing statements; any relevant business bank account statements or registration documents; proof of transfer of funds; any relevant tax returns; documentation of transfer of title; and any letters or statements regarding the sale and purchase of the property.

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37. How do I evidence funds sourced from a loan?

If all or part of the funds were sourced from a loan, you should include evidence such as promissory notes, loan agreement documents, and the lender’s income tax returns. As previously mentioned, the loan must not be secured by the new commercial enterprise.

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38. How do I evidence funds acquired from a lawsuit?

For any part of the funds acquired from a lawsuit, such as divorce-related funds or other civil or criminal judgments, you should include evidence such as settlement documents, relevant judgments or decrees, documentation of monetary remedies or compensation, and a detailed statement of the nature and resulting obligations of the lawsuit.

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39. How do I evidence funds obtained as part of an inheritance?

If all or part of the funds were obtained as part of an inheritance, you should include evidence such as the grantor’s death certificate, thorough documentation or a detailed statement of the relationship between you and the grantor, the grantor’s estate settlement, and any inheritance tax receipts.

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40. What other evidence is useful to show a lawful source of funds?

Additional evidence should include organizational documents for all businesses in which you are involved, showing your role within the business’ structure and ownership, as well as auditing and evaluation reports by an accountant for any businesses in which you have a substantial interest.

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41. How do I evidence 10 jobs that have already been created?

If you have already created the 10 qualifying jobs, the EB-5 petition must include relevant tax records, Form I-9’s, and other evidence and documentation of the 10 qualifying employer-employee relationships.

Job creation in regional center scenario is based on economic model.  It can consider direct jobs, indirect jobs, and induced jobs.

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42. How do I evidence 10 jobs that have not yet been created?

If you have not yet created 10 qualifying jobs, the EB-5 petition must include a comprehensive business plan that outlines the strategy and need for employing at least 10 employees within the next 2 years, including estimates of hiring dates and timelines. A comprehensive business plan should be “Matter of Ho compliant,” which means the business plan should include at least:

  • A description of the business, its products and services, and its objectives;
  • An analysis of the relevant market, competitors (including their strengths, weaknesses, products, and pricing structures), and the target market;
  • A list of required permits and licenses;
  • A description of the production or manufacturing process, including materials and suppliers;
  • Any contracts with suppliers or distributors;
  • A marketing strategy, including pricing and advertising;
  • The business’s organizational structure and experience requirements for personnel;
  • The business’s staffing requirements and hiring strategy; and,
  • Sales, cost, and income projections;

A comprehensive business plan should also aim to include:

  • A detailed schedule for business development and a corresponding detailed development budget;
  • A timeline for the business or project to reach specific milestones or overcome certain hurdles;
  • A description of how the EB-5 investment will directly translate into the creation of the forecasted jobs;
  • The amount, source, form, terms, and planned use of EB-5 investments and non-EB-5 investments or capital commitments;
  • Indicate the location of the business or project, as well as the location of job creation;
  • Evidence of the proposed location meeting the definition of a targeted employment area, if applicable;
  • Evidence of a purchase or lease at the business or project’s location;
  • Verifiable evidence of industry standards and how sales, cost, and income projections were reached; and,
  • Reasonable projections of demand and pricing based relevant market analysis.

21 months after the conditional permanent resident status is granted, you must file Form I-829 (Petition by Entrepreneur to Remove Conditions) to change your status from conditional permanent residence to permanent residence. This petition should include evidence that 10 qualifying jobs have been created, evidenced by payroll records, W-2 forms and other tax-related documents, and properly completed Form I-9’s.

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43. How do I evidence indirect job creation?

For regional centers, the job creation requirement may be satisfied by both direct and indirect jobs through revenue generated from increased exports from the regional center. Indirect job creation may be demonstrated through an economic impact analysis, evidencing the direct effects and indirect effects of the project. The analysis should include as much concrete documentation and evidence as possible, showing that market research suggests that similar projects or businesses produced indirect results similar to those proposed by the investor. Other methods, such as multiplier tables and feasibility studies, may be used to show that 10 or more jobs will be created by the business.

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44. How do I evidence preserved jobs for a troubled business?

For troubled businesses, you must include evidence that the number of existing employees is at and will be at the same level before any investment was made for a period of at least two years. Evidence may include tax records, Form I-9’s, or other relevant documentation of the qualifying employees, or a comprehensive business plan.

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45. What should be included in a comprehensive EB-5 business plan?

A comprehensive business plan should be “Matter of Ho compliant,” which means the business plan should include at least:

  • A description of the business, its products and services, and its objectives;
  • An analysis of the relevant market, competitors (including their strengths, weaknesses, products, and pricing structures), and the target market;
  • A list of required permits and licenses;
  • A description of the production or manufacturing process, including materials and suppliers;
  • Any contracts with suppliers or distributors;
  • A marketing strategy, including pricing and advertising;
  • The business’s organizational structure and experience requirements for personnel;
  • The business’s staffing requirements and hiring strategy; and,
  • Sales, cost, and income projections;

A comprehensive business plan should also aim to include:

  • A detailed schedule for business development and a corresponding detailed development budget;
  • A timeline for the business or project to reach specific milestones or overcome certain hurdles;
  • A description of how the EB-5 investment will directly translate into the creation of the forecasted jobs;
  • The amount, source, form, terms, and planned use of EB-5 investments and non-EB-5 investments or capital commitments;
  • Indicate the location of the business or project, as well as the location of job creation;
  • Evidence of the proposed location meeting the definition of a targeted employment area, if applicable;
  • Evidence of a purchase or lease at the business or project’s location;
  • Verifiable evidence of industry standards and how sales, cost, and income projections were reached; and,
  • Reasonable projections of demand and pricing based relevant market analysis.

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PETITION PROCEDURE

46. What forms do I need to file to petition for an EB-5 immigration?

The investor’s EB-5 petition package should include the following forms and documents:

  • Form I-526 (Immigration Petition by Alien Entrepreneur);
  • Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative);
    • Only required if the investor is represented by an attorney.
  • Petition letter; and,
    • The petition letter acts as a comprehensive summary of the investor’s evidence and the reasons why the evidence demonstrates that the investor meets the requirements for EB-5 eligibility.
  • Supporting documentation, which may include:
    • Business plan, including a market impact analysis, marketing strategy, structural organization, etc.;
    • Evidence of job creation, including W-2’s, I-9’s, employment offer letters, salary reports, etc.;
    • Evidence of lawful capital and  investment, including personal income tax returns, bank account statements, transfer documents, etc.;
    • Business registration documents, which may include articles of incorporation, licenses, permits, etc.; and,
    • Business financial documents, which may include bank account reports, cash flow analysis, etc.

If the investor is applying for regional center designation or requesting approval of an amendment to a previously designated regional center, the investor must file Form I-924 (Application for Regional Center under the Immigrant Investor Pilot Program) along with supporting documents.

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47. Once my petition packet is complete, where do I submit the packet?

You may submit your petition packet along with its applicable fee to the USCIS Dallas Lockbox facility for USPS deliveries, or the USCIS I-526 processing department for express mail or courier deliveries.

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48. Can I file my EB-5 petition online? If so, what is the procedure?

You may file your EB-5 petition online through the USCIS ELIS system. E-Filing’s benefits are that you may pay your fees with a credit or debit card, or directly through your checking or savings account, and you will receive immediate confirmation that you application has been received by the USCIS.

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49. Can I file my EB-5 Form I-526 and my Adjustment of Status Form I-485 concurrently?

No. You may not file Forms I-526 and I-485 concurrently. You must include a copy of the Notice of Approval with Form I-485 showing that your Form I-526 was approved.

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50. Will I get any confirmation of receipt from the USCIS?

Yes. You will get a Notice of Receipt usually within 1 to 2 weeks after submission.

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51. How long does the USCIS take to process an EB-5 petition?

An EB-5 petition generally takes about at least 3 to 9 months to process, depending on the case, the USCIS Service Center, and the Immigration Officer processing the case.

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52. Are Premium Processing Services available for an EB-5 petition?

No. Premium Processing Services are not available for EB-5 petitions.

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53. May I submit an application or petition for another immigrant classification at the same time that I submit my petition for an EB-5?

Yes, but you must file a separate, corresponding petition with applicable documentation and filing fees.

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54. Is there any visa backlog for EB-5?

As of February 2014’s visa bulletin, all countries are current and do not have a backlog. But due to the fact that most of the EB5 quota was consumed by investors from Mainland China, it is projected that there may be a visa backlog for Chinese investors in the future.

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PETITION RESULTS 

55. What types of actions may the USCIS issue after initial review?

The USCIS may issue one of four possible actions after initial review: (1) Notice of Approval, (2) Request for Evidence, (3) Notice of Intent to Deny, or (4) Notice of Denial.

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56. What is a Notice of Approval?

A Notice of Approval indicates that the USCIS has reviewed and approved your petition.

At this point, if you are currently in the U.S. under another status, and if you have not already concurrently filed for an adjustment of status, you may do so by filling out Form I-485. If you are not currently in the U.S under another status, you may apply for a visa to enter the country.

After you receive a visa through either adjustment of status or through a foreign consulate, you will have a two-year status as a conditional permanent resident. You, your spouse, your unmarried children under 21 years old at the time the petition was filed may all receive conditional permanent resident status, which is valid for 2 years.

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57. What is a Request for Evidence (RFE)?

A Request for Evidence indicates that the reviewing USCIS Immigration Officer is requesting additional evidence to address and support specific parts of the petition.

You may have up to 84 days after the date of the decision to respond. If you do not respond within the prescribed period, your petition may be denied. Once the USCIS receives your response to an RFE, further action will generally occur within 60 days, but may take longer. You should ask for an update if none is provided by the USCIS within 60 days.

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58. What is a Notice of Intent to Deny (NOID)?

A Notice of Intent to Deny indicates that the reviewing USCIS Immigration Officer is giving notice that he or she will deny the case unless you provide certain extra documentation.

You may have up to 84 days after the date of the decision to respond. If you do not respond within the prescribed period, your petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer. You should ask for an update if none is provided by the USCIS within 60 days.

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59. What is a Notice of Denial?

A Notice of Denial indicates that the USCIS has reviewed and denied your petition.

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60. What may I do to respond to a Notice of Denial?

You have 30 days after the date of the decision to file one of three responses if you so choose: (1) appeal, (2) motion to reconsider, or (3) motion to reopen.

An appeal is appropriate if you believe the USCIS’ denial was incorrect or wrong. A motion to reconsider is appropriate if you want another Immigration Officer to review the case. A motion to reopen is appropriate if you have evidence that was absent in the original application or response to an RFE that existed at the time of original filing.

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61. May I adjust my status to permanent resident after my EB-5 is approved?

Usually you may file Form I-485 to adjust your status after your EB-5 petition is approved if the visa priority date for EB-5 classification on the most recent visa bulletin is current.

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62. How long will my EB-5 approval be valid if I am outside of the U.S.?

Theoretically speaking, your EB-5 petition approval can be valid for unlimited duration, but its validity will likely depend on the proposed investment and business plan.  In practice, the sooner you initiate the consular process once your visa priority date is current, however, the better.  After the National Visa Center send you the processing fee bill payment notice, you have to respond it in one year.  Otherwise, your request for consular processing of immigrant visa will be regarded as abandonment.

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63. What is the procedure for me to get my green card after the EB-5 is approved if I am outside of the U.S.?

Consular processing is a means through which you may apply for an immigrant visa after your petition is approved at a U.S. consulate overseas.

If your petition is approved and you are not already in the U.S., the USCIS will send your approved petition to the Department of State National Visa Center. The National Visa Center will send you a notice of receipt. When visa numbers are available or about to become available for your classification, the National Visa Center will send you another notice indicating when you must submit immigrant visa processing fees and supporting documentation. Supporting documentation may include the original Notice of Approval; a copy of your filed petition; Notice of Receipt; a valid passport; criminal history, police, military, or prison records; birth certificate; marriage certificate; and birth certificates of children.

When fees and supporting documentation have been received, the National Visa Center will send you a packet of forms and instructions. Upon submission of those forms, the National Visa Center will send you an appointment letter including instructions for the medical exam and indicating when you must appear at a designated U.S. consulate for an interview. After the interview, the consular office will review your application and either grant your visa or request the USCIS to reconsider or revoke your petition.

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64. After the EB-5 is approved, can I choose between I-485 adjustment of status and consular processing of immigrant visa?

Yes. If your petition is approved and you are already in the U.S., you may choose between applying for an adjustment of status, or going to your country of birth or establishing residency abroad and initiating consular processing, assuming that visa numbers are current for your classification. To apply via consular processing, you must mark that option in your I-140 form or you must file Form I-824 (Application for Action on an Approved Application or Petition) with the USCIS to request that the petition gets sent to the Department of State National Visa Center.

The primary benefit of consular processing is that it is often quicker than an application for adjustment of status. Consular processing tends to take about six months. An application for adjustment of status, however, can take about six months to one year to process.

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65. What should I do during the two-year conditional permanent residency period?

The investor must demonstrate that she has fulfilled the requirements for EB-5 status according to what was petitioned for two years prior in Form I-526.

For new commercial enterprises, the investor should create the new commercial enterprise, invest the total required funds, sustain her investment, and ensure that the investment can be credited with the creation of 10 direct jobs.

For regional center projects, the investor should make and sustain the total required capital investment in accordance with the business plan, and ensure that the investment can be credited with the creation of 10 direct or indirect jobs.

For troubled businesses, the investor should make and sustain the total required investment funds and ensure that the investment can be credited with the preservation of at least 10 jobs.

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66. When do I petition to remove conditions of permanent residency?

Within 90 days of the expiration of the investor’s conditional permanent resident status, the investor must file Form I-829 (Petition by Entrepreneur to Remove Conditions) to change status from conditional permanent residency to permanent residency. Processing occurs within 90 days of either filing Form I-829 or the associated interview. The investor will still have valid status during processing time.

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67. What should I include in my Form I-829 petition to remove conditions?

The investor must demonstrate that she has fulfilled the requirements for EB-5 status according to what was petitioned for two years prior in Form I-526.

For new commercial enterprises, the investor should include evidence that she created a new commercial enterprise (e.g., organizational documents, tax returns), invested the total required funds, and sustained her investment throughout the two years prior (e.g., bank statements, financial statements, business licenses, tax returns, invoices). She should also include evidence of the investment creating 10 direct jobs through payroll records, tax documents, employee tax I-9 forms, and other documentation.

For regional center projects, the investor should include evidence that a capital investment was made in accordance with the business plan, the investor invested the total required funds and sustained her investment throughout the two years, and that the investment can be credited with the creation of 10 direct or indirect jobs.

For troubled businesses, the investor should include documentation of the business (e.g., organizational documents, tax returns), evidence that the total required investment funds were made and sustained, and evidence of the investment preserving 10 jobs through payroll records, tax documents, employee tax I-9 forms, and other documentation.

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WHAT VISATOPIA CAN DO FOR YOUR CASE

68. Do I need an attorney?

Needless to say, filing a petition for an EB-5 can be daunting and confusing. Although there have been successful approvals of petitions by unrepresented individuals, Visatopia will ensure that your petition is filed efficiently and is at its strongest when it reaches the reviewing immigration officer’s hands.

Four features distinguish Visatopia from other firms:

  1. Our exceptional legal credentials, extensive knowledge, and breadth of experience enable us to outmatch our major competitors’ services;
  2. Our contingent flat fees, free initial consultation, and encouragement of open client communication without ever getting charged are all ways in which we keep ourselves accountable to our clients and deliver the best possible results at lower costs;
  3. Our policies of promptness and diligence allow us to provide a personal, attentive, and strategized approach in our clients’ immigration matters; and,
  4. Our firm is by immigrants and for immigrants. We are committed to our clients’ successful immigration and, accordingly, provide all-encompassing services to our clients to ensure that we take care of our clients from start to completion.

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69. If I retain Visatopia, what services can I expect?

For the EB-5 process, you can expect at least the following services from Visatopia:

  1. Advise whether an EB-5 is appropriate for your immigration plan;
  2. Guide you in collecting and organizing the proper “lawful source of investment fund” documentation and evidence to enhance your application;
  3. Assist in drafting comprehensive business plan;
  4. Document translation;
  5. Review, edit, and refine relevant documentation to best strengthen your application;
  6. Draft a probative petition letter that cohesively presents the strength of your case along with its supporting evidence;
  7. Provide frequent updates and communication;
  8. Submit your complete application, after your review and approval, to the appropriate USCIS Service Center;
  9. Track your case and update you on the processing status of your case;
  10. Ensure that you respond to any additional requests for evidence or information related to your case;
  11. Provide guidance on whether an appeal or motion is appropriate if your case is not approved; and,
  12. Follow through with work related to appeals and motions if you choose to pursue those routes.

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70. If I retain Visatopia, when will my EB-5 be filed?

Visatopia strives to handle its clients’ immigration matters with the utmost integrity, care, and professionalism. We also have stringent policies of promptness and diligence, which allow us to provide a personal, attentive, and strategized approach in our clients’ immigration matters.

How quickly we file your case depends on the complexity of your case and how long it takes to obtain all supporting documentation. Once all supporting documentation has been collected, you can expect your petition to be fully prepared and filed in about 1 week.

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71. If I retain Visatopia, will my EB-5 be approved?

Visatopia cannot guarantee that your petition will be approved, but our 95% approval rate illustrates our exceptional legal credentials, extensive knowledge, and breadth of experience at the firm.

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72. If I retain Visatopia, who will by my attorney?

You will have one primary attorney personally handling your case. However, by retaining Visatopia, your matter will benefit from the knowledge, experience, and expertise of all of our high-caliber attorneys and clerks. All petitions are reviewed by a senior attorney before filing to ensure that your case meets Visatopia’s high standards of quality, accuracy, and persuasive strength.

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73. If I retain Visatopia, do I need to meet with my attorney?

No. You may participate in your initial consultation and the entirety of your case via any form of communication, including e-mail, phone, video conferences, fax, and mail.

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74. What are Visatopia’s fees?

We will provide a fee quote to you after evaluating your case and situation. We are committed to beating all major competitors’ rates while outmatching their services.

Visatopia’s attorneys’ fees can be paid in two installments: half upfront as an initial retainer fee, and the remaining half as a contingent fee that is due upon your case’s approval. Our contingent flat fee, as opposed to an hourly rate, is designed to keep us accountable to our clients and to deliver the best possible results. For some selected cases that pass our evaluation, we can even provide a “money back” guarantee if the case is not approved.

We never charge our clients for phone calls, e-mails, or meetings. We encourage frequent, open communication with our clients.

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Read more about EB-5 status and Visatopia’s EB-5 services:

Links to more EB-5 information and memos: