How to Obtain a US EB-5 Visa

US Investment Visa in Thailand
EB 5 Visa

The EB-5 visa is a special visa for the USA, which allows immigrants and their immediate family to permanently settle in the country if they meet certain requirements regarding financial investment. To qualify, they would need to invest a minimum of $1.8 million in a new commercial business in the United States that will employ at least 10 American workers. However, if they invest in a mostly rural area with high unemployment, known as a targeted employment area (TEA), then the minimum investment threshold drops to $900,000.

The EB-5 program essentially offers wealthy investors, their spouses, and children under the age of 21 a way to obtain a green card and live legally within the US, provided that their investment meets the specific criteria for the (required) investment period.

For temporary stays in the US for the purpose of investment, the E-2 Visa may be more appropriate, and for foreign companies looking to send employees to the US for work but not investment, the L-1 Visa may be more appropriate.

The EB-5 Visa scheme is fully open to Thai investors wanting to relocate to the US and obtain their green card.

Options for Investment for EB-5 Applicants

The EB-5 program offers two options to foreign investors. The first is a direct investment in a new commercial enterprise that meets the immigration criteria of jobs and capital at risk (as described above). This investment requires direct management and supervision by the investor in their new commercial enterprise.

The second option is a pilot project authorized by the USCIS that enables investors to passively invest. These projects are headed by USCIS-approved regional centers and allow investors to pool capital into larger projects as long as the minimum criteria of 10 new jobs per investor are created in the project. Under the regional center pilot project, investors can live anywhere in the US, as long as their capital is invested in a viable project. Investment in regional center projects has a lesser requirement regarding active management in the business.

How to Apply for EB-5 Visa

Before you begin your application, it would be very prudent for you to employ the services of an experienced immigration attorney. Considering both the sums of money and the amount of documentation involved in an application for an EB-5 visa, it would be unwise to try and do everything yourself. Here we will outline the steps involved in obtaining your EB-5.

1. Select Your Investment

The first step is to identify and select an investment project or vehicle that meets the qualifying criteria for the EB-5 visa to be granted. You have the right to open a new commercial enterprise anywhere in the US as long as your investment qualifies. Or you can invest in a project developed by a “regional center” and choose to live anywhere in the US. A regional center is a third-party organization approved by the government that highlights and sponsors job creation opportunities within a geographical area. They will be able to tell you what investment opportunities there are within their area which will meet the criteria for the visa.

You can find a list of government-approved EB-5 investment regional centers here.

You should select your investment opportunity carefully, just as you would with any financial investment, and not be blinded by the fact that you are getting a green card. Otherwise, you may end up selecting a potentially poor investment which could result in the loss of some or all of your capital.

2. Set Up the LLC and Transfer the Funds

Once you have chosen your preferred investment, the next step would be to sign a subscription agreement, which is a request to join a new partnership or a newly formed limited liability company. Once the agreement has been accepted, then you will be required to transfer the required funds into a nominated escrow account. This will likely need to be done with the assistance of an immigration attorney.

3. Submit Your I-526 Petition

The next step is called the I-526 petition, where an immigration attorney will file documentary proof that you have invested, and that the investment is suitable for the EB-5 scheme. There are numerous checks and balances that will need to be undertaken by your nominated immigration attorney such as proving:

  • The funds used were obtained lawfully
  • The investment opportunity is genuine
  • The business plan is credible
  • The area of investment is categorized as a TEA, if applicable

Note that the processing time for the I-526 is considerable, and at the time of writing is more than 1 year.

4. Obtain Conditional Permanent Residency

Following approval of your I-526 petition, you can then obtain conditional permanent residency in the US by submitting form DS-260 to your local American embassy (if living abroad), or by using the change of status form I-485 if you are already in the country. Both of these applications require the provision of documents, the payment of a submission fee, and then a significant wait for the submission to be approved. Once approved, then you can travel to the United States under the terms of your conditional residency. Note that at this stage, it is likely that you will be required to attend a consular interview.

5. After 2 Years, Submit Your I-829 Petition and Obtain Permanent Residency

Providing that the investment criteria were met for the first two years, then the applicant should be eligible to file their I-829. If successful, this results in an Adjustment of Status which will give them, their partner, and any children under 21 years old green cards with ten-year eligibility (they can be renewed indefinitely).

In the filing of the I-829, the investor must demonstrate that the funds were at risk for the investment period and that the 10 jobs were actually created. There is a significant filing fee of $3750 plus an additional fee of $85 to cover the cost of the biometric assessment procedure. Note that approval of an I-829 petition is a very slow process, with a historical turnaround time of more than three years. However, investors are permitted to stay under the conditional residency as long as the investor has the evidence of filing within the specified time prior to the expiration of the conditional green card.

Once the I-829 Removal of Conditions is approved, you have the right to live in the USA indefinitely, and five years after you are first issued with conditional residency, you will then have the option to become full a US citizen with all the relevant rights and entitlements that come with it.

Required Documents for EB-5 Visa Application

Various documents will be required to be submitted at different stages of the application. Note that you may be required to have the documents officially translated into English and verified if they are not in English already. Your immigration attorney will be able to advise you on what you will need and what will be acceptable, but you will at least need:

  • Identity documents such as a passport, ID card, birth certificate, marriage and divorce certificates if applicable, and birth certificates of any children if applicable.
  • Financial documents including bank statements, tax returns, proof of ownership of any substantial assets plus documentary proof of where your funds have come from.
  • Proof that the investment you are making meets the criteria for the EB-5 Visa.
  • Police clearance check and certificate. Also, any legal documents pertaining to your criminal history, if applicable.

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Ken Graham
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Partner, Siam Legal International

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Linda Pringpuangkeo
Senior US Visa Consultant
Siam Legal International

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