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30 November 2010

What is the EB-5 program?

(As published on 10/29/2010 in Epoch Times (in Chinese) as part of an ongoing series addressing general immigration questions posed by readers.)

The Immigrant Investor Program, also known as “EB-5,” was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by immigrant investors by creating a new commercial enterprise or investing in a troubled business. There are 10,000 EB-5 immigrant visas available annually. In 1992 and regularly reauthorized since then, 3,000 EB-5 visas are also set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

There are two distinct EB-5 pathways for an immigrant investor to gain lawful permanent residence for themselves and their immediate family—the Basic Program and the Regional Center Pilot Program. Both programs require that the immigrant make a capital investment of either $500,000 or $1,000,000 (depending on whether the investment is in a Targeted Employment Area [TEA] or not) in a new commercial enterprise located within the United States. TEA is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.”

The new commercial enterprise must create or preserve 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident (CPR).

I want to invest $500,000.00 in an area, but there is no regional center there. How long does it take for a regional center to be established in the mid-America?

What are the requirements for me and my company to meet to get my permanent status?

The target case processing time is four months for new regional center proposals and for amended regional center proposals for approved regional centers.

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The organizers of a regional center seeking the regional center designation from USCIS must submit a proposal showing:

  • How the regional center plans to focus on a geographical region within the United States, and must explain how the regional center will achieve economic growth within this regional area;
  • That the regional center’s business plan can be relied upon as a viable business model stating market conditions, project costs, and activity timelines;
  • How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan;
  • The amount and source of capital committed to the project and the promotional efforts made and planned for the business project.
When making an investment in a new commercial enterprise affiliated with a USCIS-designated regional center under the Regional Center Pilot Program, an immigrant investor may satisfy the job creation requirements of the program through the creation of either direct or indirect jobs. Notably, an immigrant investing in a new commercial enterprise under the Basic Program may only satisfy the job creation requirements through the creation of direct jobs.
  • Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
  • Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor.
How long does it take for me to immigrate to America once I apply for EB-5 immigration visa?

What's the requirement? What document do I need to provide?

I have a 22-year old son and a 17-year old daughter. Can both of them come to the U.S. once my immigration status application is approved? If my 22-year old cannot come with me, how long will it take for him to come to the U.S.?

Acquiring lawful permanent residence (“Green Card”) through the EB-5 category is a three step self-petitioning process. The target case processing time is five months for Forms I-526 and I-829.
  • First, a successful applicant must obtain approval of his or her Petition for an Alien Entrepreneur (Form I-526). 
  • Second, he or she must either file an I-485 application to adjust status to lawful permanent resident, or apply for an immigrant visa at a U.S. consulate or embassy outside of the United States. The EB-5 applicant (and their derivative family members) is granted conditional permanent residence for a two year period upon the approval of the I-485 application or upon entry into the United States with an EB-5 immigrant visa. 
  • Third, a Form I-829 Petition by an Entrepreneur to Remove Conditions must be filed 90 days prior to the two year anniversary of the granting of the EB-5 applicant’s conditional Green Card. If this petition is approved by USCIS then the EB-5 applicant will be issued a new Green Card without any further conditions attached to it, and will be allowed to permanently live and work in the United States.
The processing time for these filings is of approximately five to six months.

Please note that the Application for Regional Center under the Immigrant Investor Program (Form I-924) effective is effective Nov. 23, 2010, and the filing fee is of $6,230.

Where can I find more information about this program?

To learn more about the EB-5 immigrant investor program, please refer to these links:
You may also visit http://www.uscis.gov/ or call 1-800-375-5283.

30 Comments:

At November 30, 2010 at 8:00:00 PM EST , Anonymous Anonymous said...

0 Comments so far indicate the interest in this program. US will be better off fixing the EB2/Eb3 programs instead.

 
At December 1, 2010 at 2:12:00 PM EST , Anonymous Brian Su said...

EB-5 program creates new jobs around the country

 
At December 1, 2010 at 5:25:00 PM EST , Anonymous Anonymous said...

@anonymous: true, enough said. I agree, not too many know about or are interested in this program. See also:
http://lawblog.legalmatch.com/2010/12/01/how-to-purchase-u-s-citizenship-eb-5-immigrant-investor-visa/

 
At December 1, 2010 at 9:28:00 PM EST , Anonymous Anonymous said...

It's very unfortunate that USCIS saying more about EB-5 than EB3 or EB2.

US will be better off fixing EB3/EB2 backlogs.It's not a rocket science that needs extraordinary brains to fix EB3/EB2 issues.It just requires a common sense and willingness to help skilled people and their families.

Please USCIS, it's high time that something is worked out to fix EB3/Eb2 issues and provide relief to the unfortunate ones.

 
At December 2, 2010 at 10:01:00 PM EST , Anonymous Anonymous said...

@ USCIS Blog Team

Well, it is now December 2, 2010 let's see if this agency will stick to what it posted on 03 May 2010.

Please respond blog team, and stop ignoring this request, it is now the third (3rd) time I have asked this question, with no response. Please update us, thank you.

"03 May 2010
Suggestions from Beacon Readers

Over the past few weeks, readers have written in with a number of comments. We wanted to take a moment to address five of the most frequent suggestions.

1) Combine EAD and AP into one document and issue for 3 years.

USCIS is in the process of developing a combination work authorization (EAD) and Advance Parole (AP) card. An announcement regarding this combination card will be made later this year"

 
At December 6, 2010 at 12:22:00 PM EST , Anonymous Anonymous said...

The people on line on EB3-India is for past 10 to 12 years, We already paid this much amount.as SSN and TAX and medicare, and 401K and buying cars. Please fix the EB-3 and EB immigrant backlogs first Then talk about the EB-5. All in EB-3/EB2 India are eligible (whoever applied on 2001 to 2005) to get a green card now. Please do need ful USCIS

 
At December 6, 2010 at 5:42:00 PM EST , Anonymous Paul Mulligan said...

This is a very good resource on the eb-5 visa program. To find out more details about the program, follow the link in the previous sentence.

 
At December 8, 2010 at 9:21:00 PM EST , Anonymous Anonymous said...

USCIS Blog: Please respond...

Are EB3/EB2 pending AOS applicants eligible for this EB-5 program?

Whom should we contact to get more information about this program?

 
At December 16, 2010 at 11:43:00 AM EST , Anonymous Anonymous said...

I am very happy to see USCIS is getting serious about EB-5. We are losing serious investors to Canada because their EB-5 Equivalent process is much easier, faster, and Canadian authorities give it a high priority. In the current economic situation USCIS needs to be all over this program making it easier for investors to invest in US and make the process fast/easy. I am not talking about Regional Center investment, but $1-5million dollars type investment. We recently lost a $14million dollar investment to Canada because the investor felt the US process is elaborate, lengthy, and the USCIS staff do not understand how to handle these applications/petitions. This alone was at least 20 jobs that we lost to Canada. I only hope by seeing this Blog USCIS gets very serious about this program and in fact try to attrack investors to USA.

 
At December 16, 2010 at 11:55:00 AM EST , Anonymous Anonymous said...

USCIS Blog Team & Director Office-

The new process changes are really helping the immigrant community. Are there any changes coming up for the below areas:-

1. Pre-adjucation Filing for Pending I-140 Approved applicants? Will you allow them to file for EAD and AP21 in the process of waiting for visa numbers to be allocated?

2. Any efforts to scrutinize the porting of Eb3 applicants to Eb2 Applicants?

3. Any efforts to find the employers who are filling for Eb2 applications for dummy projects? We have seen a bigger trend for people to port from Eb3 to EB2 based on dummy/fake documents causing the Eb2 numbers spiked really high. The Eb2 Category is for REALLY EXCEPTIONAL ability people but now EB3 Folks are joining with False data (Premium) Processing getting into the Line. Please Scrutinize the I-140 premium processing for EB2 Atleast.

4. Any efforts to reduce the backlog of EB2 ( highly skilled) applicants waiting?

5. Any efforts to reduce the backlog for processing of H1b ( Anywhere from 3-4 months) currently.

6. Any efforts to electronically accept the Applications and responses(RFE) like most of the consulate office ( USA consulate in India) is doing to reduce the effort of Mailroom routing and data entry level errors/efforts.

 
At December 19, 2010 at 5:53:00 PM EST , Anonymous Anonymous said...

Dear sir/madam,

As we know that the plight of employment based highly skilled immigrants who are stuck in 5 to 10 years of visa line usually goes unheard. Please see below two paragraphs I have quoted from a proposal made by Gary Endelman and Cyrus D. Mehta to solve this crisis of priority date which can not only provide relief to the principal applicants but also to their spouse (http://cyrusmehta.com/news.aspx?SubIdx=ocyrus20103925436). I strongly believe that a supportive action of USCIS will go a long way in not only improving the life of these legal immigrants but also aid the economy of United States. Merry Christmas!!!


"Third, the authors propose that we should count only the principal beneficiaries of I-140 or I-130 petitions and not family members under the employment or family-based quotas. There is nothing in INA § 203(d) that explicitly provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be given numbers. This ambiguity in INA § 203(d) provides the Executive with an opportunity to exclude family members against the employment or family quotas, which could potentially resolve the priority date crisis significantly.

Finally, Endelman and Mehta also propose that existing ameliorative provisions that Congress has specifically passed to relieve the hardships caused by crushing quota backlogs be interpreted in a way that reflects the intention behind the law. For example, § 106(a) of the American Competitiveness in the 21st Century Act allows an H-1B visa holder on whose behalf a labor certification has been filed 365 days prior to the maximum time limit to obtain an H-1B visa extension beyond the six years. §106(a) ought to also allow the spouse of an H-1B who is also in H-1B status to be able to obtain extensions beyond the six years without having his own labor certification. This used to be allowed, but, since a restrictive interpretation of the USCIS in 2005 that only allowed dependent H-4 spouses to get the benefit of the extension, is no longertolerated for spouses who have their own H-1B status and the USCIS has retracted.Now,both spouses need to have labor certifications filed on their behalf to obtain the benefit of 106(a), which is not necessary and absurd.The statute itself has more flexibility and speaks of “any application for labor certification …in a case in which certificationis required or used by the alien to obtain status under section 203(b) of such Act." Under this interpretation, the H-1B husband who does not have his own labor certification can still use his H-1B wife’s labor certification on a derivative basis to file for adjustment of status.This interpretation is very much in keeping with spirit of AC 21 which is to soften the hardship caused by lengthy adjudications and we certainly have that now with respect to China and India, as well as worldwide EB-3.The current interpretation placed upon AC 21 Section 106(a) is contrary to the intent of Congress. It is not enough to say that the H1B spouse for whom a labor certification has not been filed can change to non-working H4 status. Given the backlogs facing India and China in the EB-2, as well as worldwide EB- 3, it is simply unrealistic and punitive to deprive degreed professionals of the ability to work for years at a time but force them to remain here to preserve their eligibility for adjustment of status."

 
At December 21, 2010 at 12:15:00 AM EST , Anonymous Anonymous said...

Great job USCIS...

There is an increase in indiscriminate filing of EB petitions by various off-shoring companies. The scrutiny that USCIS has increased resulting into an Audit has sent these firms running for cover for unethical recruitment practices. Many of them don’t put any real effort to recruit local talent.
Please streamline and strengthen this scrutiny so that only genuine applicants apply and the backlog is eliminated

 
At December 21, 2010 at 7:05:00 PM EST , Anonymous Anonymous said...

USCIS Please scrutinize the EB2 and EB1 filings closely…

Companies are grossly misusing these categories by filing people under Advanced Degree category using foreign degrees which are easy to come by….

 
At December 21, 2010 at 10:34:00 PM EST , Anonymous Anonymous said...

@ USCIS

This is a great program. However not many people have the needed capital.

On the other hand E2 visa is an option for less capital. Can u tell if E2 visa requires non immigrant intent. If I140 is filled on my behalf can that be an obstacle.

 
At December 22, 2010 at 10:17:00 AM EST , Anonymous Anonymous said...

10+ years waiting for Employment Based Immigrants,and no end in sight. How unfair it is to see illegal's DREAM ACT on those lawmaker's table. This is America's immigration system.

 
At December 26, 2010 at 6:39:00 PM EST , Anonymous Basement Renovations said...

EB-5 program will surely create new jobs in the country and will definitely help the jobless people

 
At December 27, 2010 at 11:47:00 AM EST , Anonymous Anonymous said...

Why don't USCIS accept applications like it did in July 2007? This way you would have pool of applications to processed which are already completed the first two stages. This would also help to get more application and know the real backlog. Why USCIS is looking at DOS and they are looking at USCIS. THis is kind of vicious cycle.

 
At December 30, 2010 at 7:09:00 PM EST , Anonymous Anonymous said...

Please delink the EB process from the employer. Let people gain green cards by proving their own merit (either through their work, education, research etc). USCIS can give weightage for each of these credentials

Employers are misusing the EB process for meeting their greedy needs

 
At January 9, 2011 at 3:38:00 PM EST , Anonymous Anonymous said...

Many of the India based IT outsourcing firms advertise US recruitment drives and reject resumes at the resume stage or after first round of interview itself esp. for experienced positions in US….Citing no reasons for such rejections. Such employers then go-ahead and petition USCIS for new green cards citing lack of qualified labor so that they can import employees at a lower cost. How is this justifiable? This is happening rampantly even now….

 
At January 11, 2011 at 4:43:00 PM EST , Anonymous Anonymous said...

All the EB-2 India guys are Fraud USCIS.. especially those entered the US around 2007 2008 from India deny any immigrant visa to them. EB2 applications should be freezed and Eb-3 backlog should be cleared first they are the real Bright Tech skilled educated people.

 
At January 17, 2011 at 2:48:00 PM EST , Anonymous Anonymous said...

I agree with Anonymous on January 11th....

All the EB2-India guys in 2007 2008 should be treated as EB3....there was a massive filing of EB2s during this period when USCIS was liberal with approvals....

Even now certain large IT companies are filing 100 GCs per quarter to improve their numbers in US....

 
At January 30, 2011 at 9:32:00 AM EST , Anonymous Anonymous said...

Tri-Valley University Immigration scam...

This is a classic case of how thousands of underqualified students paid several thousand dollars to sham university in California to gain entry into US.. and work illegally here…this is one of several such scams operating and are exploited by unscrupulous individuals…There are several IT companies as well which act as shops to send people to US by taking money from people…

There are several IT body shops and other companies in the US which recruit only the OPT and CPT students for running their business...this helps them by paying significantly less to these students who don’t have to pay taxes…

 
At January 30, 2011 at 3:51:00 PM EST , Anonymous Anonymous said...

Tri Valley..online forum...

Please see this online forum (link below)...It clearly points that the students are culpable…they broke law knowingly…they should be held guilty

http://www.trackitt.com/usa-discussion-forums/h1b/512950847/tri-valley-university-cpt-opt/page/1

 
At April 14, 2011 at 11:44:00 PM EDT , Anonymous Anonymous said...

I'm highly skeptical of these foreign do gooders, highly skeptical!!!

 
At May 2, 2011 at 6:13:00 PM EDT , Anonymous Anonymous said...

I'm a Canadian and establish a business in California 5 years ago. Now the business is doing well, with 20 employees. Although my initial investment is only $100,000, the current value of my investment (equity) is over 2 million. Am I qualify for a EB-5 or it has to be a new business?

 
At November 2, 2011 at 11:59:00 AM EDT , Anonymous Anonymous said...

All those students enrolled in Tri valley Univ are very well aware about the university being Sham and knowingly tried to maintain their status to save money they earn working illegally. Now most of them are planning to cross the border to obtain new I-94 and some were already issued new I-94. All these people deserve a punishment and should be sent back without any mercy, make them start the entire process from beginning and get a valid visa. People are still working illegally out there.

 
At November 28, 2011 at 11:42:00 PM EST , Anonymous Anonymous said...

I'm highly skeptical of these foreign do gooders, highly skeptical!!!

 
At January 11, 2012 at 2:20:00 AM EST , Anonymous NURSING informatics said...

I love to read your article. This is the perfect blog for those who want to know about this topic. Thanks for posting.

 
At July 5, 2013 at 11:22:00 AM EDT , Anonymous Anonymous said...

This are the main points that should be scrutinized: § 106(a) of the American Competitiveness in the 21st Century Act allows an H-1B visa holder on whose behalf a labor certification has been filed 365 days prior to the maximum time limit to obtain an H-1B visa extension beyond the six years.

§106(a) ought to also allow the spouse of an H-1B who is also in H-1B status to be able to obtain extensions beyond the six years without having his own labor certification.

The statute itself has more flexibility and speaks of "Any application for labor certification in a case in which certificationis required or used by the alien to obtain status under section 203(b) of such Act." Under this interpretation, the H-1B husband who does not have his own labor certification can still use his H-1B wife's labor certification on a derivative basis to file for adjustment of status.


APX Consulting

 
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