What are the steps that lead to acquisition of lawful permanent residency under the EB-5 Pilot Program?
The process typically unfolds as follows:
- Consultation with an immigration attorney to determine investor eligibility for the EB-5 visa
- Selection of the Regional Center for investment
- Preparation and submission of I-526 petition
- Wait while USCIS review the petition
- Acquisition of conditional lawful permanent residence status through 1) adjustment of status in the U.S. from another U.S. visa type, or 2) receipt of EB-5 entry visa through overseas consulate and receipt of “green card” upon entry to the U.S.
- Removal of conditions (after 21 - 24 months) on LPR status and receipt of 10 year green card
- N-400 application for U.S. citizenship (eligibility begins five years after receipt of the first “conditional” green card)
What factors may result in an investor being deemed ineligible for a U.S. immigrant visa?
Persons who have a serious medical condition, or have been convicted of a crime, or are a threat to the security of the United States, or have previously violated U.S. immigration law may be deemed ineligible for any immigrant visa. Waivers are a possibility for most of these exclusions, but they are often difficult to obtain.
Who are eligible beneficiaries of an EB-5 visa?
The petitioner, his/her spouse, and all unmarried children up to 21 years of age.
What is “lawful source of funds”?
The EB-5 regulations require that the investor prove the invested capital was “obtained through lawful means.” Demonstrating lawful source of funds is typically the central challenge in any EB-5 petition. Extensive documentation is required to demonstrate that the funds are in fact the petitioner’s and that the money was earned or received honestly. The USCIS will need to see a “pattern of wealth” that would lead a person to believe that the petitioner, or the donor or lender of the funds, has sufficient investment funds to finance the regional center investment.
What documents are required for the I-526 petition?
There is no standard list of required documents for the I-526 petition. Petitions can vary greatly depending on the source and path of the funds for investment. Some EB-5 investments are funded by profits from a business, others by gifts from a parent, others from personal or business loan, and others from the sale of stocks. Each variant requires a different set of documents, and, even within each variant, individual circumstances can make the petitions infinitely variable. Nonetheless, you should expect to provide, at a minimum: detailed curriculum vitae, five years of tax returns, five years of bank statements, proof of ownership of a business, business licenses, five years of the business’ tax records, historical information about the source of funds, and detailed documentation of the funds moving from the source funds into the EB-5 investment. The USCIS uses a “hypertechnical” standard for I-526 review, which means that even the slightest omission or gap in the presentation of the sourcing or movement of funds can lead to a Request for Additional Evidence or an outright denial.
What is the typical waiting time for I-526 approval?
Most cases are decided by the USCIS in between four and six months.
Can I pay extra to get my petition expedited?
The EB-5 Committee of the American Immigration Laws Association has been pressing the USCIS to allow for expedited processing (less than three weeks wait for decision) available for most types of business visas, but the USCIS refuses on the argument that the cases are too complex and the review process too time-consuming for expedited processing.
What is the difference between “conditional” and “unconditional” Lawful Permanent Resident (LPR) status?
A conditional LPR has all the rights and privileges as unconditional green card holder, except the right to remain permanently on the visa (and, by implication, the right to U.S. citizenship). The conditional green card is a two year “temporary” green card which permits the U.S. government to take a second look at the lawful permanent resident to make sure that he/she is conforming with the requirements of the visa which provided the LPR status. The resident has to file an I-829 application to remove the conditions on the residency during the last three months of the 2 year card.
How much time must I stay in the U.S. after I become a lawful permanent resident?
Once U.S. permanent residence status is granted, the investor is expected to physically reside principally in the U.S. There is no specific number of days required to be present in the U.S. The U.S. system looks to travel patterns and whether the resident maintains “intent” to be a resident. Evidence of intent to reside includes owning property in the U.S, maintaining U.S. bank accounts, obtaining a driver's license, obtaining a social security number, etc.. Generally speaking, absences from the U.S. of less than six months will be excused, but the longer one goes beyond six months the greater the justification must be that the resident has not abandoned his or her U.S. lawful permanent residence. Once the resident obtains U.S. citizenship, of course, he or she can reside outside the U.S. without a problem.
What are the tax implications of U.S. residency?
U.S. permanent residents, like U.S. citizens, are taxed on their world-wide income. They also are subject to U.S. estate and gift taxes. Residency generally begins on the first day of the year that the investor is present in the United States as a lawful permanent resident. The potential problem of “double taxation” by the U.S. and the home country is avoided in many cases by tax treaties between the U.S. and foreign countries which allocate the taxes between the two countries. We strongly urge you to consult with a U.S. tax attorney and with your financial advisor before undertaking the EB-5 process.