EB-5 Visa Program | Essential Steps for 2021 Applications

Apr 22, 2021

Today we dive into the world of immigration investments and the EB-5 Visa Program.

 

In specific, we address the facets of the application process that are vital for petition success in 2021. The good news is that, even in 2021, the stringent requirements of the i-526 Form can be met with success by any applicant of the required financial means, as long as each and every step is complied with exacting detail.

 

Let’s get started.

 

Here are the 2 most important criteria you need to fulfill in your EB-5 application process:

 

  1. A clean, accountable and auditable source of funds
  2. An investment partnership with a Regional Center / NCE / JCE that possesses:
    • a proven track record of successful petitions in previous job creation projects
    • one or more current projects with 100% compliance, and absolute job creation and completion feasibility

 

Let’s dive into these essential criteria, by first answering some definitions in the EB-5 Investment world.

What exactly is the EB-5 Immigrant Investor Program?

An employment based fifth-preference immigrant visa (“EB-5 visa”) enables a foreign national to become a permanent resident (i.e. green card holder). It is one of five employment-based paths to permanent residency in the U.S.

 

What is the i-526 Form?

I-526, Immigrant Petition by Alien Investor
The I-526 Petition (or Form I-526) is the initial petition for an EB-5 investment whereas the investor intends to file for conditional permanent residency through the EB-5 immigration investment program.

 

What is the Regional Center?

An EB-5 regional center is an entity licensed by USCIS to sponsor EB-5 investments. Sponsorship of an EB-5 investment by a regional center enables the foreign national to claim credit for the creation of jobs indirectly, via reasonable economic methodologies.

 

What is the NCE (New Commercial Enterprise)?

EB-5 investors must invest in a new commercial enterprise. An NCE is any new lawful for-profit business that creates at least 10 full-time jobs.

 

What is the JCE (Job Creating Enterprise)?

After an investor invests in the new commercial enterprise, it is deployed as a loan to the job creating enterprise. The JCE uses the capital for the purposes of job creation.

 

Now, let’s review the 2 most important factors that will ensure your EB-5 petition is approved.

 

1. Personal investment into a suitable job creating development in the US, with a clean source of funds, capital that is accounted for and auditable.

This is 100% intrinsic to the petition success and is non-negotiable. If an applicant application shows any hint of improper fund sources, not only will the petition be rejected, the applicant may also be blacklisted from further applications.

The investment funds amount are $900,000 USD plus management fees when investing with a Regional Center in a TEA Targeted Employment Area project. Otherwise it’s $1,800,000 USD. For the sake of this article, it’s assumed that the immigrant investor will be working with a NCE/ Regional Center at the 900,000 USD investment rate.

To keep in mind, investment funds can be a combination of hard and soft assets, which allows for flexibility in asset management.

EB5 Initial Application Steps Timeline

Summary of the i-526 Form Application Steps

STEP 1: THE CLIENT IS INTERESTED IN APPLYING FOR THE GREEN CARD
The first step is to build the i526 form with a deep explanation and evidences of the source and path of the funds that will be invested. The funds at this point can be a combination of hard and soft assets.

STEP 2: PASSPORT CHECK
Transfer of passport copies from all family members in the EB5 petition.
Passport black list search on each family member. Once processed, the i526 request is sent to the EB5 immigration attorneys.

STEP 3: ENGAGEMENT CONTRACT FORMS
The client will receive a source and path of fund i526 engagement contract from the immigration attorneys for a one time flat fee. Or, the client can choose their preferred immigration attorney.

STEP 4: ENGAGEMENT CONTRACT PAYMENT & EXECUTION
Client will directly pay the attorney either by wire transfer or credit card. Once paid and the contract is duly executed, the attorneys will prepare a call meeting to discuss the checklist of documents required to prepare the Green Card i526 petition file.

STEP 5: i-526 FILE BUILD
For approximately 1 to 3 months the attorney and client will work together to build the file until the attorney has gathered enough evidence from the petitioner to comply with the requirements of USCIS.

STEP 6: i-526 FILE FINAL REVIEW
Once the file is built the attorney will share the file for final review, meanwhile, we will share the EB5 project documents with the attorney.

STEP 7: PROJECT DOCUMENTS EXECUTION & PAYMENT
Client will execute project documents and wire transfer the investment amount into the associated 3rd party escrow account.

STEP 8: ESCROW ACCOUNT RECEIPT
Once the funds are received by the project escrow account agent a receipt of investment will be sent to the attorney.

STEP 9: USCIS FILING BY IMMIGRATION ATTORNEY
The immigration attorney will complete the file with the escrow receipt and send the file to USCIS by courier post.

STEP 10: RECEIPT OF i526 FILE NUMBER
In about 15 days USCIS will send a 797 notice of i526 petition to the name of the client and will assign a number.
Once the notice is received the capital can be moved from the 3rd party escrow account into the project account. The funds will be used in the project to create the required American jobs.

From this point forward the investor will officially be part of the project, subject to the project terms, and may begin to receive income from the investment.

Now, with the petition made the client waits until USCIS reviews the petition and issue a response.
This usually takes from 12 to 30 months.

 

2. Investing for an EB-5 Green Card via an EB-5 NCE/ Regional Center with impeccable credentials

  • If the (NCE) New Commercial Enterprise, (JCE) Job Creating Entity or Regional Center lack any of their requirements for proving or creating 10 or more permanent jobs per investor, then the petition will not be approved.
  • Furthermore, if the selected project fails to show completion feasibility, there is a good chance it will also be rejected.

 

Let’s review EB-5 Business Plan Feasibility Criteria by EB-5 columnist and expert Suzanne Lazicki:

The term “Matter of Ho compliant” is shorthand for everything USCIS would like to see in an EB-5 business plan. The term specifically references the EB-5 business plan goal and standards defined in the precedent decision Matter of Ho.

Standards Defined by Matter of Ho for a Compliant EB-5 Business Plan

EB-5 business plan goal:
• “to meet the petitioner’s burden of showing that he will create 10 permanent, full-time positions within the next two years”
• “to enable the Service to determine whether the job creation projections are any more reliable than hopeful speculation”
• “to permit the Service to draw reasonable inferences about the job creation potential”

EB-5 business plan characteristics to achieve the goal:
• The plan is “sufficiently detailed” to support reasonable inferences about job creation
• The plan goes beyond “mere conclusory assertions” to show that projections are not merely speculative.
• The plan shows that the business “is feasible and has the potential for long-term survival.”
• The plan is “comprehensive,” as defined by a paragraph summary of typical business plan content from business description and market analysis down to staffing requirements and income projections.
• “Most importantly, the business plan must be credible.” [2]

So, although applicant investment fund source could be approved by fulfilling the criteria as outlined by USCIS, it all comes to naught if the investment business plan is not up to level.

This is why it’s absolutely critical to partner with reputable EB-5 managers, administrators and immigration lawyers.
From step 1, due diligence from the applicant is required; and vetting the NCE investment business plan is absolutely essential before beginning the EB-5 process.

 

Compliance with the i-526 Petition criteria is the cornerstone to success in obtaining the US Green Card via the EB-5 Program.

 

For this very fact we at BAI Capital encourage you to do your research, with us, as well as with other reputable sources of EB-5 legal information, so that you can move forward with confidence that you are making each and every correct step, and following procedures without missing any details.

Over the 3 decade history of the EB-5 program in the United States there has been several unfortunate fraudulant applications, from both the immigrant investors and the administrating Regional Centers/ NCE’s. This unfortunately means the officials at USCIS take a more measured and exhaustive look at each new i-526 application.

 

In 2021, more than ever, it’s all in the details. The good news is that with the right EB-5 management and i-526 application, the petitions get approved, time and time again.

The qualified EB-5 Project Analysts at BAI Capital are here to help you make those all-important first steps. Contact us today.

By clicking the Button you confirming that you’re agree with our following Terms and Conditions