Navigating the EB-5 Visa for Residency in the USA

With an EB5 Visa, you obtain a permanent residency (a Green Card)

Yes, there are approximately 700 EB5 visas available to each country per year

For an EB5 Visa, you have to invest either $800,000 or $ 1,050,000. This amount depends on where the project is located

Funds can be borrowed for EB5, several Regional Centers can facilitate this option. Our experienced EB5 immigration lawyers can guide you on this requirement.

For an EB5 Visa, you invest in a "New Commercial Enterprise" (“NCE"”). There is no requirement that you create the NCE.

,Under the law, property of many kinds are an acceptable forms of investment, the investment does not have to be cash. As a practical matter a Regional Center is only likely to accept a cash investment.

For an EB5 Visa, Yes. Your investment must create 10 jobs

Applicant, spouse & qualifying children < 21 receive Green Cards

Green Card holders may be taxed on worldwide income

USCIS administers the Immigrant Investor Program, also known as “EB5” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB5 visas also are set aside for investors in project orchestrated by Regional Centers.

The EB5 program experienced only limited change and reform over the following three decades, despite calls from all stakeholders to improve the program to create longer-term certainty for investors. In November 2019, the US government made some changes to the EB5 program. This included stricter rules around Targeted Employment Areas (TEAs) and increasing the minimum investment amounts to start from $900,000 - this was to take account of inflation since the price had not been increased since the early 1990s. The United States Congress finally changed the laws around EB5 in June 2022, setting the minimum investment amount at $800,000 and authorizing the program until 2027.

There are just over 700 EB5 Visa available to each country each year. If a country exceeds this quota then persons born in that country are subject to a waiting list. The majority of countries are not near using up their quotas, precise per country filing data is available on the Department of State website by clicking here.

The way in which country quotas are calculated for EB5 purposes changed as a result of the EB5 Reform and Integrity Act of 2022.

A certain number of available EB5 visas are now reserved for applicants investing in projects located in certain categories:

- Rural Areas, 20% of visas
- High Unemployment Areas, 10% of visas
- Infrastructure Projects, 2% of visas


Within each category 7% of visas are reserved for applicants from each country.

The EB5 has proved so popular in China and India that people born in this country who are not making an investment in one of the three reserved categories are subject to long delays. EB5 is also popular in India and Vietnam, which have at times been subject to a delay. Citizens of countries facing quota delays should contact our team to discuss options for living in the United States while on the waiting list.

How do I know if My Country if Facing Quota Delays?

Every month the US State Department publishes a table called the “Visa Bulletin” that explains which countries have used-up their visas whose people are subject to the waiting list. The Visa Bulletin is published on the US State Department’s website The Visa Bulletin is notoriously difficult to read so we have prepared a resources page and explanatory video on hope to read the Visa Bulletin.

A single EB5 investment can include an entire qualifying family unit. The eligible family unit can include the primary applicant, a spouse and any children under the age of 21. Forward planning may be required to ensure that your children do not “age out” of the process. Once you submit your application to USCIS, your childrens’ ages freeze while the approval of you initial petition is pending. Once approved, the children start ageing again from their frozen age rather than their actual age. This means that children could actually be older than 21, but in the eyes of the US authorities they are still considered to be under 21. “Aging out” is mostly an issue in countries that face visa retrogression. Aging Out is a complicated topic and the purpose of this website to to provide general guidance only, please contact us to understand this issue in more detail.

There are a lot of misconceptions as to what a Regional Center is and is not.

A Regional Center is simply a commercial, for profit, entity which has applied for and been granted a Regional Center license from USCIS. This does NOT imply that USCIS frequently inspect or warrant any project a Regional Center may offer.

Part of your inquiry into EB5 will be to conduct full and proper due diligence on any Regional Center you are considering. We have prepared a list of questions you may wish to ask a Regional Center, please contact us to obtain this list.

While over 90% EB5 investments are made in projects sponsored by Regional Centers it is possible to invest in a project that is not offered through a Regional Center. While there is no requirement that you own the business in which you invest it is very common for a business owner to use Direct EB5 to obtain a "Green Card" by investing in his or her own business.

Should I choose Regional Center or Direct EB5?

The first choice facing an EB5 investor is whether or not to invest through a "Regional Center" or in a “Direct” project.

In our experience many clients start out wanting to invest in their own business through the "Direct" route and while we have successfully guided many investors through the "Direct" EB5 route most clients opt to select a Regional Center once the differences between the two options are clearly explained.

New Commercial Enterprise

All EB5 investors, whether Direct or Regional Center, must invest in a new commercial enterprise, which is a commercial enterprise:

• Established after Nov. 29, 1990, or
• Established on or before Nov. 29, 1990, that is:
  1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
  2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:

• A sole proprietorship
• Partnership (whether limited or general)
• Holding company
• Joint venture
• Corporation
• Business trust or other entity, which may be publicly or privately owned

This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

Note: This definition does not include noncommercial activity such as owning and operating a personal residence.

• Create or preserve at least 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.
• Create or preserve either direct or indirect jobs:
  • Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB5 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 EB5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

Note: Investors may only be credited with preserving jobs in a troubled business.

A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.

Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, "full-time employment" also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.

A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.

The minimum investment requirement for an EB5 visa is Capital of $800,000 in Targeted Employment Areas (TEAs), doubling to $1,050,000 outside of a TEA.

Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.

Required minimum investments are:

• General. The minimum qualifying investment in the United States is $1,050,000.
• Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $800,000.

A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.

EB5 applicants must be able to prove that the source of the funds used to pay for their investment come from legitimate sources. Davies & Associates will look at your asset base and identify the best options for your EB5 application. This might include:

• Property Sales
• Investments
• Salaries
• Dividends
• Commercial Sales
• Gifts

Form I-526 is called the Immigrant Petition by Alien Investor. It is essentially your EB5 application form where you also document your source of funds. Your application will be evaluated by USCIS on the basis of this form. Your immigration attorney will help you fill out and file your Form I-526.

In July 2022, the US Citizenship and Immigration Services issued a new form the I-526E specifically for Regional Center applicants. Your immigration attorney must file Form I-526E Immigration Petition by Regional Center Investor if you are applying for the EB5 Investor Visa through the Regional Center route.

Form I-829 is the petition by investor to remove conditions on permanent resident status. This is the point at which an EB5 visa holder must apply to have the conditions on their Green Card removed. A successful EB5 applicant will be initially be granted conditional residency for two years and this cannot be renewed. You must apply to remove the conditions on your Green Card within 90 days before this two-year time period has elapsed.

A rural area must be outside of a town with 20,000 residents, and it must not be within a ‘metropolitan statistical area’ as the U.S. Office of Management and Budget puts it. To receive a high unemployment area designation, an area must have an unemployment rate of at least 150% of the U.S. national average. Previously, individual states could designate high unemployment status, but from November of 2019, the Department of Homeland Security will allow such designations at the I-526 petition stage and requires evidence such as a TEA opinion letter.

Unless your country of birth is in retrogression your I526 should approve in a reasonable period of time. While USCIS published average case processing times there is frequent confusion and misunderstanding as to what these numbers mean.

There are processes in place which an applicant whose case has not been processed within usual processing times can utilize to force the processing of his or her application. These include:

• Senatorial Complaints
  • Use of the USCIS Ombudsman
  • Use of the USCIS Ombudsman
  • Writ of Mandamus

EB5 applications are submitted to the United States Citizenship and Immigration Services (USCIS) for adjudication. Owing to a backlog at USCIS, processing times can take more than a year. However, if you feel that your EB5 application (Form I-526) has been unreasonably delayed, it is possible to file a lawsuit in a federal court to determine whether it has been unreasonably delayed.

Since filing a writ of mandamus is a legal course of action which may require litigation, it is always advisable to seek advice from an attorney. Contact Davies & Associates for a free consultation to determine whether it would be advantageous for your I-526 petition. Our team has filed dozens of successful writs of mandamus actions against USCIS for unreasonably delaying immigrant petitions. We can assist regardless of whether your I-526 application was prepared by Davies & Associates. The average time between filing a writ of mandamus and receiving an adjudication is around two months, in some cases it can be significantly less.

It is anticipated that USCIS might suddenly start processing applications at a faster pace. It is advisable to file a writ of mandamus as soon as possible to have your case reviewed ahead of a possible surge.

Why choose Davies & Associates for your EB5 Application?

• 10 years' experience in EB5
• 100% approvals for I-526
• More than 1,000 successful EB5 Visa obtained for clients
• 100% success with Source of Funds
• EB5 clients from more than 20 countries
• Experience with both Direct EB5 & Regional Center
• Offer due diligence on Regional Center projects from both immigration and real estate law perspectives

There are several things that you MUST do as a US conditional resident:

• Maintain a record of your home address in the US with USCIS
• File state and Federal Tax Returns using your US address
• Obtain a state driving license or residency card
• Not be outside the US for a continuous period exceeding six (6) months
• Not be a recipient of welfare benefits:
  • The COVID support checks do not count for this purpose
  • Receiving unemployment insurance benefit is not considered “welfare” for this purpose
• Do nothing to encourage or incite any family member or another person to enter the US on a visit visa with the intention of remaining permanently in the United States, this is a common issue with student visas
• Note that a “Re-Entry” permit is issued by USCIS and is not binding on the US border officers.

There are additional steps that while not essential are highly advisable:

• If possible the primary applicant to remain in the US for six months each year. Although this has never caused an issue for our clients it is, nevertheless, recommended.
  • We suggest that the primary applicant does not maintain a job outside the United States unless there is a clear plan that the role will transition to a US-based position within a reasonable period of time.

In order to be naturalized as a US citizen a permanent resident who obtained their green card through EB5 must demonstrate:

• The applicant has held a conditional or “full” green card for a period of five (5) years
• During the five years immediately prior to the naturalization application being filed the applicant spent 50% of their time (i.e. 2.5 years) in the US.
• They were not absent from the US for periods of time exceeding six (6) months. Absent very compelling evidence that there was no intent to abandon residency an absence of six months will cause the 5 year residency period to re-start.
• Absent special permission in advance of the trip from USCIS (A RE-ENTRY PERMIT IS NOT SUFFICIENT FOR THIS PURPOSE) the applicant was not outside the US for a continuous period of one year while in permanent residency status. Spending more than one year outside the US will cause the five-year residency period to re-start and compelling evidence of an intention not to abandon US residency will not be considered.

India is a nation of entrepreneurs and business owners, many of whom seek their fortunes overseas. Visit our EB-5 Immigration Visa Lawyer for Indian Investors page for more information.

We were one of the first US law firms operating in India, exclusively supporting Indian clients with EB5 visa applications. Over the past decade we have helped hundreds of Indian families relocate to the USA under the EB-5 visa program. Visit our EB-5 Immigration Visa Lawyer for Indian Investors page for more information.

Davies & Associates is proud to be one of very few U.S. law firms to have dedicated India and Middle East Practice teams with “on the ground” capabilities. We are known in the industry as the leading EB5 law firm in both the Middle East and India regions. Given the strength of each of these teams and the unique issues they address for clients on a daily basis we combine the knowledge of both groups to seamlessly assist our Indian clients resident in the United Arab Emirates. Visit our EB5 Visa for Indian Applicants Resident in the United Arab Emirates page for more information.

The EB5 program enables a qualified Indian investor to obtain Permanent Residency for themselves and their immediate family by making an investment in the United States that creates ten jobs for U.S. workers. Visit our EB5 Visa for Indian Applicants Resident in the Singapore page for more information.

While Davies & Associates ("D&A") is a US-based law firm, we work with our local regional offices to service EB5 clients from the Mumbai, Southern Gujarat and Maharshtra areas. Recognized as one of the leading specialist law firms serving Indian EB5 investors, D&A has 100% success rate with our EB5 clients. Our Mumbai legal team is frequently quoted in the Economic Times, The Times of India, The American Bazaar, Wall Street Journal and Business World. Visit our Your EB5 Visa: Meet Leading Experts in Mumbai page for more information.

D&A has always been proud of the exceptional service offered to residents of Southern India. Our first EB5 cases in India were for residents of the Chennai metropolitan area and we remain proud of the service we offer in the Chennai area. Visit our Your EB5 Visa: Meet Leading Experts in Chennai page for more information.

Davies & Associates has been proudly serving the Independent city of Chandigarh market for almost a decade, representing leading Chandigarh families, entrepreneurs, politicians and executives. With increasing prosperity in the region, our firm has experienced staggering growth in interest for EB5 investment and a growing need for sound EB5 advice. Visit our EB5 in Chandigarh: A Major India Capital City page for more information.

As required by the Indian Bar regulations, we partner with local professionals throughout India – these partnerships enable our firm to provide a full, seamless service to our Indian clientele. This arrangement has resulted in a 100% success rate for our Rajkot clients, as well as a local-oriented service. With the privilege to represent some of the most well-respected Rajkot families, you will find Davies & Associates to be a leading EB5 law firm in the Gujarat region. Contact us today for an appointment to learn more about our United States EB5 services. Visit our EB5 in Rajkot: A History of Distinction page for more information.

To be successful with an Indian EB5 visa requires solid knowledge of not just US-based law and procedure, but Indian culture, law, business practices and regulations. Our partnerships and local presence in Bangalore has proved to be invaluable for offering a full-service to our EB5 Indian investor clients. As a result, we have realized 100% success with all of our EB5 filings for our clients residing in Bangalore and have become recognized as the leading law firm in the region. Visit our EB5 Success in Bangalore page for more information.

Brazil is a nation of entrepreneurs and business owners, many of whom seek their fortunes overseas. Visit our EB5 Visa for Brazilian Nationals Immigration Options for Brazilian Nationals and Businesses page for more information.

Based in New York City with locations in Los Angeles, Miami and San Jose/San Francisco we are the only US-based immigration law firm with a permanent presence in Cairo and the only US immigration firm to include Egyptian lawyers in our team of expert US E-2 and EB-5 investor visa lawyers. To our knowledge no other US immigration law firm has a dedicated Egypt practice team.
Visit our EB5 Visa for Egyptian Nationals Immigration Options for Egyptian Nationals and Businesses page for more information.

While many law firms claim to file EB5 applications the truth is that few law firms file more than a handful of EB5 applications each year. Davies & Associates files a large number of EB5-based “green card” applications and, to date, no application we have ever filed has been denied. Visit our EB5 Investor Visas USA for Italian Nationals page for more information.

For a decade Davies & Associates has been the leading law firm serving the Indian EB5 market.

Through www.eb5visaindia.com we maintain the latest EB5 visa news India.

For more information go to www.eb5visaindia.com

Entrepreneur Visas for the United States. The United States is very welcoming of business owners and entrepreneurs. In fact there are many different visa routes for entrepreneurs to live and work in the United States. Visit our page on US Entrepreneur EB5 Visa for more information.