Application Process

On october 11, 2023, the US Citizenship and Immigration Service (USCIS) provided their long-awaited guidance about the EB-5 investment timeframe in EB-5 Reform and Integrity Act of 2022 (RIA) to satisfy the “at risk” requisite of the EB-5 visa. For pre-RIA investors, the sustainment period is the two years of their Conditional Residence. For post-RIA investors is “two years from investing” However, the start of this two-year clock is ambiguous, needs further clarification, and expectations to receive EB-5 capital back in two years is unrealistic as this depends on the terms of the Partnership Documents and when the Project gets liquidity. Also, their interpretation is non-binding, is not yet in the USCIS Policy Manual and is likely to be challenged in courts

In order to complete the EB-5 process and become a permanent U.S. resident, foreign investors must work through the following steps:

Step 1, USCIS Form I-526E, Immigrant Petition by Regional Center Investor. This is your first official step in the EB-5 process after completing your Accredited Investor Questionnaire, choosing a project, signing all of the documents to subscribe to a Regional Center project, and placing your funds in escrow with the project. The I-526E petition is submitted to the USCIS by your immigration attorney along with supporting documentation that clearly demonstrates that your investment and the project meets all EB-5 requirements.

If you already residing in the U.S. under certain visas (H1-B, L-1, E-2, F-1, etc.), you may expedite receiving your EB-5 benefits with a “Concurrent Filing”, as explained below.

Note: If you are doing your own direct investment and will manage your own business, you will need to file Form I-526, Immigrant Petition by Standalone Investor instead of an I-526E Form.

Step 2A, Adjustment of Status (Form I-485). After receiving approval of the I-526E petition, investors already residing in the U.S. may submit a completed application to Register Permanent Residence or Adjust Status (Form I-485) to the USCIS.  

Under the new EB-5 Reform and Integrity Act of 2022 (RIA), EB-5 investors with legal presence in the US may file a Form I-485 Application for Adjustment of Status either at the same time as filing the initial EB-5 petition (Form I-526E) or any time thereafter.

You may also file for a work permit (Form I-765, Application for Employment Authorization) and get your Employment Authorization Document (EAD) in as little as 3 months to 6 months. Likewise, you may also file your application to travel (Form I-131, Advance Parole) while your I-526E is being processed.

To be eligible for concurrent filing, the petitioner and their dependent family members must reside in the United States with a legal visa that allows for Adjustment of Status (AOS). While most non-immigrant visa holders can apply for AOS, come exceptions include visitors on a visa waiver and those from countries facing visa retrogression.

Applicants holding “dual intent” visas like H1-B or L-1 may file the Form I-485 at the same time as their I-526E petition. However, those on visas without immigrant intent should first consult their immigration attorneys to learn if they’re eligible to submit a Form I-485.

Once the applicant receives approval for their I-526E Form., the form I-485 will be reviewed and approved in 6-12 months. The applicant then receives the Conditional Cards, valid for two years.

Step 2B, Consular Processing: When an EB-5 investor who is outside the U.S. or is unable to adjust status in the U.S. receives their I-526E Petition approval, they  then need to undertake consular processing to receive their immigrant visa. After the I-526 approval, the National Visa Center (NVC) sends a fee invoice (currently $445 USD). The investor must then provide civil documentation for themselves and immediate family members and complete Form DS-260. Once the fees are paid and documents submitted, the NVC schedules a U.S. Consulate interview, dependent on visa availability based on the investor’s (or their spouse’s) nationality.

The Consulate’s role in this process is to evaluate the investor’s admissibility to the U.S., reviewing criminal history, past visa records, health status, etc. The consular interview doesn’t re-evaluate the I-526E petition, but the officer may ask about the EB-5 investment and project specifics. It’s crucial for the investor to be well-prepared for the interview, often with assistance from an immigration attorney.

This consular processing generally takes between 3 to 12 months, depending on the specific consulate. After receiving the immigrant visa, the investor must enter the U.S. within six months to begin their two-year conditional residency period. Once they enter the U.S., they will receive their Conditional Cards.

Step 3, USCIS Form I-829 – Petition by Investor to Remove Conditions. Within the last 90 days of the  2-year Conditional Residency period, investors must file an I-829 Petition with the USCIS to have conditions removed from their Green Card and establish permanent residency. With this petition, the investor must demonstrate that the investment was sustained throughout the two-year conditional period and that job creation requirements were achieved by the project. During this process, the investor is aided by their chosen Regional Center in providing the requested documentation. Upon approval of the I-829 application, full permanent resident status is given to the investor, his or her spouse, and any  unmarried children under the age of 21 included in their I-526E petition

If you are located outside the U.S. when your I-526E Petition is approved, you will need to wait for a notification from the U.S. Consulate in your home country to prepare the necessary documents for your visa interview. This procedure is designed to ensure that the investor and their family undergo medical, police, security, and immigration history checks before the EB-5 immigrant investor visas are granted. During the interview, the consular officer may inquire about these matters, as well as review information provided on the I-526E Petition, including asking the investor to summarize the details of their immigration investment.

Family members have the option to conduct their interviews in different countries. The typical interview location is based on the country of origin or where the family has established ties. It is common for one family member, such as a student studying in the U.S., to be located in a different country. In this case, the student does not need to return to their country of origin; they can adjust their status in the United States at a USCIS district office, provided that the EB-5 investor’s visa has already been approved.

An Escrow Bank Account is a legally established holding account with a reputable bank. This type of account is often utilized in transactions involving real estate, businesses, and personal property. To meet the requirements of the EB-5 program, an investor must transfer the capital investment of $800,000 USD or $1,050,000 USD to the project’s Escrow Account prior to submitting their I-526E Petition for an EB-5 visa. As part of the application process, the investor needs to demonstrate that the investment has been made in the United States. Typically, proof of the invested capital includes wire transfer receipts and Confirmation of Funds letters from the bank or the Regional Center. It is important to note that reputable projects will not release your funds from the Escrow Account until USCIS has issued a formal receipt notice for your petition.

The initial cash deposit from the investor is placed in an Escrow Bank Account. When an Escrow Bank Account is established, the funds continue to belong to the investor. The Regional Center and bank has an agreement with the investor that allows the funds to be released from the account only after a third-party fund administrator certifies that the funds will be released to solely fund EB-5 project expenditures and at the time the investor’s I-526E petition has been filed with the USCIS.

Concurrent filing allows certain EB-5 investors who are legally present in the U.S. to obtain a Green Card without needing to leave the country. It also permits them to access the work and travel benefits associated with their EB-5 Visa even before it is officially issued.

This new provision enables EB-5 investors with legal status in the U.S. to file Form I-526E (Regional Center Immigrant Investor Petition) simultaneously with Form I-485 (Application for Permanent Residence or Adjustment of Status). They can also submit Form I-765 (Application for Employment Authorization) and Form I-131 (Application for Travel Document).

Through concurrent filing, these investors can apply for adjustment of status alongside their EB-5 petitions, eliminating the need to wait for approval of the I-526E petition. This development is significant for foreign nationals looking to transition from non-immigrant visas to permanent residency without leaving the U.S.

Furthermore, the EB-5 concurrent filing process is generally more streamlined compared to the consular visa process abroad, which often experiences substantial delays.

EB-5 investors holding “dual intent” visas, which serve both immigrant and non-immigrant purposes (such as H-1B or L-1 visas), are allowed to file Form I-485 concurrently with their I-526 petition.

This provision also applies to individuals who entered the U.S. through the Visa Waiver Program (ESTA), crew members on C-1/D visas, and J-1 visa holders.

However, EB-5 investors from countries facing visa retrogression, such as China and India, cannot take advantage of the concurrent filing option in the EB-5 program unless they invest in an EB-5 category designated as “Current” in the Visa Bulletin.

We recommend consulting with your immigration attorney to determine your eligibility for concurrent filing for adjustment of status.

EB-5 investors can apply for U.S. citizenship after being a Lawful Permanent Resident (LPR) for a minimum of five years, with the two-year Conditional Permanent Residency (CPR) period included in this timeframe. Essentially, this means counting five years from the date of receiving your Conditional Green Card.

To qualify for naturalization, the investor must be at least 18 years old, maintain continuous residence and physical presence in the U.S., and possess the ability to read, write, and speak basic English. Additionally, they must demonstrate good moral character, have a solid understanding of U.S. history and government, adhere to the principles of the U.S. Constitution, and show a willingness to take the Oath of Allegiance.

Generally, EB-5 investors should refrain from being outside the U.S. for more than 180 days in any given year without consulting legal counsel. Because the requirements for naturalization can vary based on individual circumstances, it is advisable for EB-5 investors to seek guidance from an immigration attorney.