The EB5 process is commenced when the investor files a petition, Form I-526, with the USCIS (US Citizenship and Immigration Services). The petition and supporting documentation must demonstrate EB5 eligibility. The investor invests a specific amount (1million or 500K USD) in a new commercial enterprise. After approval, initially you receive a green card with a validity of 2 years. A conditional permanent resident receives a green card valid for 2 years. In order to remain a permanent resident, a conditional permanent resident must file a petition to remove the condition during the 90 days before the card expires.
Yes. The investor needs to create 10 full-time jobs within the 2-year period following the approval of the immigrant petition (period of conditional residency). The jobs should be only for US citizens, permanent residents, and certain other limited categories. But if the investment is in a regional center, indirect or direct job creation is allowed.
Indirect jobs are actualized in businesses and commercial enterprises that are associated or affiliated with an EB-5 Regional Center. Indirect jobs are typically created within businesses that supply services or goods to the EB-5 project in question.
Invest in a new commercial enterprise. The enterprise must be “new,” i.e., started after November 29, 1990, the date the law was enacted.
Any for-profit entity formed for the ongoing conduct of lawful business may serve as a commercial enterprise
“New Commercial Enterprise” does not include noncommercial activity such as owning a personal residence.
Usually 1 million USD, $500,000 in cases of investment in “targeted employment areas,” which are either rural areas or areas which experience unemployment of at least 150 percent of the national average rate.
The law requires proof that capital is invested by the petitioner. Thus, an investor-petitioner should present evidence that traces capital from the enterprise back to the petitioner as a source.
The USCIS also has required that a petitioner present evidence that the source of the capital is a lawful one. Regulations specify evidence requirements such as five years of income tax returns. The USCIS also has required evidence of the investor’s level of income. Where the investor’s funds have been received by gift or loan, substantial evidence concerning the bona fides of the donor or lender typically is required.
Currently, USCIS is taking about 21 to 26 months to adjudicate EB-5 petitions.
Another important point of consideration for citizens of India is visa retrogression.
Congress sets limits on the number of immigrant visas that can be issued each year. In order to adjust status to that of legal permanent resident, an immigrant visa must be available to the applicant both at the time of filing and at the time of adjudication. A final action date (FAD) marks the end of a “current visa” status for a country, indicating a backlog. It does not affect the project. Most countries do not have a FAD as it is current. Countries with a FAD means that an investor is only eligible for the green card (adjustment of status or consular processing) if the priority date is available.
India: Due to the dramatic increase in demand for EB-5 visas, the State Department will impose a FAD for India no later than June 2019 – it could well be earlier. Once a FAD has been imposed, Indian nationals will likely wait a long time to come to the US, even though their petitions have already been approved. So it’s better to apply ASAP.
The investor, investor’s spouse and children under 21 can immigrate with the investor. For children approaching 19-20 years of age, careful planning is required. The Child Status Protection Act (CSPA) protects the child to a limited extent by freezing their age for the period of I-526 adjudication. But you have to consider the impending backlog for India next year.When visa retrogression occurs, a complicated formula is then used to determine if the child qualifies to immigrate.