FREQUENTLY ASKED QUESTIONS

  • What are the benefits of having a Green Card?

    Some of the benefits of a U.S. Green Card include:

    • All legal permanent residents under the EB-5 Investor Program enjoy the same rights and benefits as every other lawful resident of the United States.
    • The U.S. is a safe harbor for your family as well as for your personal and business assets. Any member of your family with a Green Card can enter the United States at any time and stay as long as he or she wishes.
    • EB-5 investors holding Green Cards have access to the United States for personal, trade and business purposes.
    • Permanent residents travel to the U.S. without the need of a visa.
    • EB-5 investors may work, live, or own their own businesses anywhere in the United States.
    • The U.S. has internationally recognized colleges and universities for both undergraduate education and graduate study. As a permanent resident, EB-5 investors can benefit from lower tuition costs associated with U.S. residency.
    • The cost of living in the U.S. is less than most large industrial nations. Consumer goods, services, and housing are significantly less expensive than comparable services and goods in most other countries.
    • Students may work in the U.S. while they attend college and then continue to work afterwards, enabling the student to pay for part of his education and to work while attending graduate and postgraduate studies.
    • The U.S. provides many financial, social and education entitlements – public schools, health and medical attention, social security, and education.
    • The Investor has the ability to bring other family members to the U.S. after proper application, and can obtain U.S. citizenship after 5 years of residing in the U.S.
    • The permanent residency requires no renewal or re-application. Other U.S. non-immigrant visas, such as E-2 and H may never result in permanent residency, have time limits, and require additional filings with USCIS or Department of State.
  • What is the EB‐5 Immigration Program?

    EB-5 stands for Employment Based Immigration 5th Preference. It was introduced in 1990 under the Immigration Act for the purposes of granting Green Card to non-American citizens across the world. The U.S. grants 10,000 visas every year under this program with quota of 700 visas reserved for each country.

  • Which U.S. Government agency administers the EB-5 visa program?

    The program is administered by the U.S. Citizenship and Immigration Service, aka USCIS.

  • Where can I find a copy of the relevant laws and regulations to study?

    The statute and regulations can be accessed via the U.S. Citizenship and Immigration Service (USCIS) website at www.uscis.gov.

  • Can any foreign citizen apply to the EB-5 Program and receive a Green Card?

    Yes. You do not need to have any prior business or educational experience in order to qualify for the EB-5 Program. You do not need to speak or read or write English. But you must be able to invest a minimum of $500,000 of “white money” into a qualified EB-5 project, be able to prove the lawful source of funds for this capital, and that project must create 10 jobs for qualified U.S. workers.

  • Which family members can receive a Green Card through an EB-5 investment?

    The investor, spouse and all unmarried children under the age of 21 are eligible to receive Green Cards through a single $500,000 EB-5 investment.

  • At what age does my child stop qualifying to emigrate with me to the U.S. through EB-5?

    Any child over the age of 21 at the time of the I-526 visa petition is considered to be an adult and is therefore not allowed to accompany the principal EB-5 investor as a dependent child. If the EB-5 investor files the I-526 before the child turns 21, and if there is no waiting list for EB-5 visas, then it may be possible for the child to remain with his parent’s EB-5 investor’s visa process. One should consult a U.S.-based immigration attorney for more clarity on this issue.

  • If I am a parent filing for an EB-5 Green Card and my kids are over 21, how can they get a Green Card without additional investment?

    A parent who obtained a Green Card through EB-5 could file an immigrant visa petition for family reunification for a child who is over 21 and unmarried. However, this process involves a wait of at least 7 years for children born in India. Alternatively, if the adult child marries a Green Card holder or U.S. citizen, he or she would be eligible for a marriage-based Green Card. The fastest way for adult children to get a Green Card is for them to file their own separate EB-5 petitions, if funds are available.

  • What will happen if the applicant had previously been rejected for an L‐1, E‐2, B, or another U.S. visa?

    Rejection per se in the past does not disqualify the applicant, unless the reasons are related to immigration fraud.

  • What are the options to invest under EB‐5?

    There are two main ways —

    i) The Direct Investment Route - The Direct Investment Route is appropriate only for aspiring immigrants who wish to set up their own businesses in the U.S., which will create at least 10 direct jobs.

    ii) The Regional Center program - The Regional Center program is safer, faster and far more hassle free. Job creation is easier, as the project can count indirect as well as direct job created. It requires a minimum investment of $500,000, as well as payment of an Administrative Fee of around $50,000 and legal fees of up to $30,000. Under this route you need only invest in a project approved for the purpose by USCIS. Nothing else is required.

  • What is an EB-5 Regional Center?

    An EB-5 Regional Center is an organization, designated and regulated by USCIS, which facilitates investment in job-creating economic development projects by pooling capital raised under the EB-5 program. EB-5 projects must affiliate with a Regional Center.

  • How are EB-5 investments affiliated with Regional Centers structured?

    EB-5 investments that are affiliated with EB-5 Regional Centers are made through private placements - the sale of securities to a small number of investors. A private placement memorandum is developed that details the investment offering, including detailed explanations of the project that will be funded along with disclosures of risk and material information consistent with all applicable federal and state laws. The economics of the project related to EB-5 specifically – the expected job creation – are also detailed in the memorandum. In some cases, the issuer of the private placement memorandum is an EB-5 Regional Center itself. In other situations, the issuer is business entity that will be receiving the investment funds and is affiliated with a Regional Center.

  • Are EB-5 Regional Center financing options cheaper for companies than other sources of capital?

    Yes. EB-5 funding is a lower cost form of capital than domestically available alternatives, which is the main reason that Regional Centers and EB-5 project developers go to the effort and expense of raising money from large numbers of foreigners.

  • What is the minimum required amount of capital required to apply for an EB-5 visa?

    When investing through a Regional Center, the minimum capital investment requirement is $500,000 when you select a project in a designated rural area or Targeted Employment Area (TEA). For other projects not meeting these criteria, the capital investment requirement is $1 million. For obvious reasons, virtually all projects are located in TEA’s and require only a $500,000 investment.

  • What is a Targeted Employment Area (TEA)?

    A TEA is a geographic area in the U.S. which is either rural (has a population of less than 20,000), is not part of an urban area, or has an unemployment rate that is 150% of the national average.

  • Does the U.S. Government guarantee that you will get your $500,000 back?

    No. USCIS only vets Regional Centers and EB-5 projects for their job creation capabilities. EB-5 investments must be “at-risk” just like any other types of investments and any sort of guarantee is prohibited. Therefore, a regional center that guarantees the return of the investment capital risks disqualification by USCIS and must be avoided.

  • If you invest with a Regional Center project, how long will you have to wait to get your $500,000 back?

    It depends on the regional center and project, but it usually takes between 5 to 7 years. Your funds must remain “at risk” until your I-829 petition for a “permanent Green Card” is approved. If the project that you have invested in has completed before this event, the Regional Center will reinvest your funds somewhere else so that they do remain at risk, which can prolong the potential repayment period.

  • How long does it take for an EB-5 application to be approved and a Green Card issued?

    It typically takes investors about two months to make the investment, gather the necessary documents, and file the I-526 petition. Most petitions are approved in about 12 to 18 months. One can then apply for adjustment of status in the U.S. or an immigrant visa overseas. Adjustment of status for EB-5 cases can be processed in about 6 months but can sometimes take longer. The immigrant visa at the American consulate requires about 6 months. Overall, the process takes about two years.

  • Do you need an immigration attorney to apply for an EB-5 Green Card?

    Yes, it is recommended that you seek advice and guidance from a qualified U.S. immigration attorney. They are required to document your source of funds, and to assist you in filing your petitions with USCIS. If you file on your own, you may risk a higher chance of being denied, or you may be swamped with requests for additional evidence. This can be time consuming and costly. There are many experienced U.S.-based attorneys who specialize in EB-5.

  • What are the steps for processing an EB-5 visa application?

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

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

    Step 2:
    USCIS Form I-485/Consular Review. After receiving approval of the I-526 Application, 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. For investors residing outside of the U.S. – the process is similar but requires the investor to apply for an immigrant visa at the US Consulate in their country of residence.

    Step 3:
    USCIS Form I-829 – Petition by Entrepreneur to Remove Conditions. One year and nine months after initial I-526 approval, investors can file a completed Form I-829 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 met by the project. During this process, the investor is aided by their chosen Regional Center in providing the requisite documentation. Upon approval of the I-829 application, full permanent resident status is given to the investor and his or her spouse and any unmarried children under 21 years of age.

  • Once my I-526 petition is approved, what is the purpose of the consulate application and interview?

    The purpose of this procedure is to ensure that the investor and his or her family undergo medical, police, security and immigration history checks before the conditional Green Card is issued. At the interview, the consulate officer may address these issues as well as ask about information printed on the I-526 application. For example, he may ask about the project the applicant has invested in.

  • What is retrogression, and why is it important?

    The EB-5 Program has an annual cap of 10,000 visas. Due to the fact that the 10,000 includes visas for investors and their families, the real number of visas issued to investors is closer to 3,000. Each country then receives a maximum quota of 7% of the total visas available, or 700 per country. If each investor has a spouse and a child (some applicants may not have a spouse and children, and some may have more children), then that’s around 233 visas available for investors from each country. When there are more investors than there are visas available, the country quota is triggered. This is known in State Department jargon as “retrogression.” This means that they will have to wait longer to get scheduled for a visa interview after their I-526 petition is approved. In China, because of exploding EB-5 demand, investors must wait up to 15 years for a visa interview because of retrogression. India has not yet faced retrogression, but because of increased demand for EB-5 visas, it is widely expected to occur sometime in 2019.

  • What is an “accredited investor?” and why is it important?

    EB-5 investors must be “accredited investors.” The term “accredited investor” means any investor meeting at least one of the following conditions:

    • any person who can demonstrate an annual income of $200,000, or $300,000 for joint income, for the last two years with expectation of earning the same or higher income. An individual must have earned income above the thresholds either alone or with a spouse over the last three years.
    • any person who has a net worth exceeding $1 million, either individually or jointly with his spouse.
    • any person who is a general partner, executive officer, director or a related combination thereof for the issuer of unregistered securities.
    • any person who can demonstrate sufficient education or job experience showing his or her professional knowledge of unregistered securities.
  • What are acceptable source of funds for an EB-5 Investment?

    There is no single source of funds that is required for an EB-5 investment. USCIS finds various sources of funds acceptable including savings from accumulated income, gifts and real estate secured loans - as long as the source of funds is lawful and the path of funds well documented. The USCIS' standards for source of funds are strict and working with an experienced immigration attorney is essential in preparing an approvable source of funds report.

  • Can EB-5 investment funds originate from salary earned in the U.S.?

    Yes, an EB-5 investor can use funds earned and deposited in the U.S. but will still be required to prove the lawful source of funds. If the EB-5 investor was in the U.S. while on work visa status, he or she must demonstrate that the salary was earned while holding valid work visa status.

  • Can I use the money gifted by a parent or other relative for an EB-5 investment?

    Yes, but you must also demonstrate that the gift is an actual transaction and that the gifted funds will not be given back after you obtain a green card. The source of the gifted funds must also be extensively documented.

  • What is an Escrow Account and when does the investor transfer funds into this account?

    An escrow bank account is a holding account established in a reputable bank. EB-5 investors must transfer $500,000 into the Project Escrow Account before filing the I-526 petition for an EB-5 visa. This process requires the investor to prove that the funds have been invested in the U.S. Typically, proof of invested capital consists of wire transfer receipts and confirmation of funds letters issued by the bank.

  • What documents are requested to verify my source of funds?

    You must prepare complete biographical information and must prove the source of the investment funds. To prove the source of investment funds, USCIS requires five years of personal and business, if any, tax returns; proof of ownership in any businesses; and business licenses. You must present a track record of an honest course of dealing. If your capital came from a specific transaction, such as sale of a house, inheritance or gift, you must prove the transaction occurred by providing an official document, such as a closing statement or contract or other official documents. This is not an exhaustive list. Other documents may be required and vary on a case-by-case basis.

  • What issues have been problematic in EB-5 cases?

    The most common problem area has been insufficient documentation of the source of funds. Many people try to disclose the least possible information only to have the file returned with a request for further information. It is better to provide too much information rather than too little information. In this era of terror alerts, and suspicions about money laundering, USCIS case examiners require a well-documented source of funds.

  • What is a "conditional" green card?

    A conditional green card is a temporary green card valid for two years. One year and nine months after it is issued, a three-month window opens up during which an individual must file an I-829 petition with the USCIS to verify that all of the funds have been invested and maintained and employment created. When the conditional resident status has been lifted, full permanent resident status is granted, and a permanent green card is issued.

  • What is the difference between “conditional” and “permanent” Green Card?

    A “conditional green card” is also called a “provisional green card.” Either way called, it offers the same rights and privileges as that of a "permanent green card”. One year and nine months after it is issued, a three-month window opens up during which an individual must filean I-829 petition with the USCIS. The I-829 verifies that all of the required funds have been invested throughout the stated conditional residency period and the requirement of creating ten new American jobs has been met. Once the I-829 petition is approved, the applicant’s Green Card status becomes permanent.

  • Are you free to travel after receiving a conditional Green Card?

    The investor is free to travel in and out of the United States subject to the rules applicable to permanent residents. Specifically, the investor must actually have a residence in the United States and must not be outside the United States for a continuous period of one year or more.

  • Can my kids go to public school when they receive a Conditional Green Card?

    Yes, investor and the family enjoy the benefits public schools and resident tuition at State universities once the conditional green card is issued.

  • What is the difference between a permanent Green Card and citizenship?

    Once youobtain a permanent Green Card, you have most of the rights and obligations of U.S. citizens, except that you cannot vote and are not entitled to some public benefits.

    You are subject to the same tax filing requirements and entitled to the same tax rates and deductions as U. S. citizens. To migrate from Green Card to citizenship through Naturalization, you must be a Permanent Resident for at least five years and have been physically present in the United States for thirty months during the five years priorto the naturalization application.

  • Once I have a Green Card, how long must I remain in the U.S. each year?

    After the investor receives the visa at the U.S. overseas consulate he or she must enter the U.S. within 180 days of visa issuance. The investor must then establish residency in the U.S. Residency can be established by opening bank accounts, obtaining a driver’s license and social security number, paying state and federal income taxes, and renting or buying a home. The U.S. resident may work overseas if required based on the nature of the business or profession. However, all permanent residents must remain in the U.S. for more than 6 months out of the year, or they may be deemed to have abandoned their permanent residency status and lose their Green Card.

  • Once you receive a permanentGreen Card, can it be taken away?

    Once a Green Card is received, there are only two conditions under which it can be taken away.First, if you become “removable or inadmissible.” The most common way of doing thisis to be convicted of a serious crime. The second requirement is based on the amount of time/months you spend in USA vs. somewhere else. As long as you are not planning to make your home somewhere else, then legally you are still a resident of the United States.

    As a general rule, if you have a Green Card and leave the United States for more than one year, you may have a difficult time re-entering the country. To avoid a full-scale inspection, you shouldreturn within six months. It is a common misconception that to keep your Green Card allyou need to do is enter the United States at least once a year. The fact is that if you everleave with the intention of making some other country your permanent home, you give upyour United States residency when you go. The USCIS will look to your behavior for signals.

  • Do Green Card holders need to pay tax in the U.S.?

    Yes. Green Card holders and those who are physically present in the U.S. for at least one-half of each calendar year are considered to be residents of the U.S. for tax purposes. U.S. tax residents are taxed on their worldwide income. However, assets are not taxed until they are sold and generate capital gains. The U.S. and India have a Double Taxation Avoidance Agreement. We recommend that EB-5 investors seek professional tax advice to address their individual tax situations and enable proper tax planning.

  • How can I avoid potential double taxation as a result of having a Green Card?

    Green Cards should only be obtained by people who are planning to live in the U.S. If you live and work in the U.S., you will not be taxed as a resident in India, therefore avoiding potential double taxation. In a situation where a family is availing of EB-5, if the main earner wishes to stay in India, he should avoid getting a Green Card. For example, in a family of four in which the father is the main wage earner, only the mother and the children could avail of EB-5, thereby avoiding the potential of U.S. taxation on the father.