How to Obtain a US EB-5 Visa | Siam Legal International

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 certain, mostly rural areas with high unemployment, known as targeted employment areas (TEAs), 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.

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 for investors to passively invest and is developed by USCIS-approved regional centers allowing the projects to pool investor 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.

Traditionally popular with immigrants from China, South Korea, Taiwan, and the UK, immigrants from these four countries alone have comprised over 80% of applications to the scheme, with many applicants also hailing from Vietnam, Nigeria, India, Brazil, and Mexico. The scheme is of course also open to Thai investors wanting to relocate to the US and obtain their green card.

How to Apply for EB-5 Visa

At the consideration stage, it would be very prudent for the applicant 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.

Select Your Investment

The first step is to identify and select an investment project or vehicle which 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 the green cards and thus end up selecting a potentially poor investment which could result in the loss of some or all of your capital.

Set Up the LLC and Transfer of 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, and once the agreement has been accepted, then you would be required to transfer the required funds into a nominated escrow account. This would need to be done with the assistance of an immigration attorney.

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 which will need to be undertaken by your nominated immigration attorney such as proving that the funds used were obtained lawfully, that the investment opportunity is genuine with a credible business plan, and proof that 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 a year.

Obtain Conditional Permanent Residency

Following approval of the applicant’s 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 the applicant is 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 the applicant will be required to attend a consular interview.

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

Providing that the investment criteria were met for the two years, then the applicant should be eligible to file their I-829, which if successful results in the removal of the conditional status and 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 are approved, the applicant has the right to live in the USA indefinitely, and five years after they were first issued with conditional residency, they will then have the option to become full US citizens with all the relevant rights and entitlements that come with it.

Required Documents for EB-5 Visa

Various documents will be required to be submitted at the 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. Passport, ID card, birth certificate, marriage (and divorce) certificate if applicable, birth certificates of any children.
  • 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 the applicant's criminal history, if applicable.
  • Any additional paperwork which our immigration attorney specifies.

Please contact us for more details. We’ll be happy to help.

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