The Employment Based Fifth Preference Category, or EB-5, was created to attract foreign capital to the United States in order to create more job opportunities and benefit the U.S. economy.

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 the immigrant to make a capital investment of either over $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).

In order to qualify under the EB-5 category, foreign investors must:

• Invest $1 million in either a new or existing U.S. business or commercial enterprise that will create at least 10 full-time U.S. jobs, or
• Invest $500,000 in a new or existing U.S. business or commercial enterprise that is in either a rural area or an area with a high unemployment rate, or
• Invest in a U.S. government designated Regional Center, and
• Prove that the investment will somehow benefit the U.S. economy

Advantages of EB-5 Category

There are many distinct advantages to the EB5 category based on what our EB-5 lawyers have noticed.

Below are the benefits of the EB-5

• Not required to submit PERM labor certification. In other words, you do not need to demonstrate that there is a shortage of domestic (U.S.) workers to perform that job.
• Not required to have a permanent job offer in the U.S.
• Not required to maintain an existing home-country business. You are permitted to close your business in your home country and still acquire your green card. Compared to the EB-1C category, which requires you to maintain business operations, the EB-5 is usually preferred.
• No need to demonstrate extraordinary ability.

Disadvantages of EB-5 Category

The EB-5 category has its fair share of disadvantages as we’ve outlined below.

• Large upfront investment. It’s clear that the EB-5 category requires a substantial upfront investment just to meet the eligibility criteria. Both programs require the immigrant to make a capital investment of either $500,000 or $1,000,000. This sum does not include the additional costs associated with filing (i.e., attorney fees, time investment, etc.)
• Financial risks. Substantial investments like the ones required on EB-5 come with lofty risks and challenges as well. As an investor, that’s an inherent disadvantage but it typically goes without saying.
• Conditional permanent resident status. When you elect for the EB-5 category you simultaneously receive conditional permanent resident status. When you receive this status, you also relinquish any prior nonimmigrant status.

EB-5 Green Card Processing

The EB-5 category is a multi-step process. After filing Form I-526, Immigrant Petition for Alien Investor you can also file Form I-485 at the same time (if within the U.S.). If you are not in the U.S., you will need to go through consular processing.

Consular processing involves having you travel to a designated U.S. embassy or consulate in your home country. There, you will need to have completed a DS-260 online immigrant visa application. You will also need to participate in a one-on-one interview with a consular officer.

At this interview, you will be asked questions about your background, your investment, and your plans in the U.S. Ultimately, this interview will be to make sure that your case is legitimate.

You can only file the I-485 form concurrently with the I-526 if your priority date is current. Your priority date is the day that the USCIS receives your petition. The Department of State releases a monthly visa bulletin detailing the most recent final action dates in each green card category. If your priority date matches or passes the final action date in your category, your date will be considered current.

Fortunately, most of the dates for the EB-5 green card are usually already current, allowing you to file and adjust your status at the same time. However, this is not always the case. Be sure to check the visa bulletin before filing to avoid confusion and to see what your EB-5 processing time will be. Once your green card has been granted, it will be valid for an initial period of two years.

The second part of the process (at the end of the two-year period) is for you to file Form I-829 petition to remove conditions. This must be done within 90 days of the expiration. An EB-5 lawyer can explain the process in greater detail.

Can I Use Premium Processing?

No. Premium processing, or the service offered by the USCIS to shorten your petition’s processing time to 15 calendar days, is unfortunately not available for the EB-5 green card.

How Much Will An EB-5 Cost?

The EB-5 costs will depend on whether you go through consular processing or adjust your status. Here are the mandatory fees for each situation:

Adjustment of Status

• I-526 filing fee
• I-485 fee: This fee will depend on your age. Take a look at the USCIS chart to see where you stand.
• Biometrics fee: (if applicable)

Optional fees

• Attorney fee
• Traveling costs if you need to visit a U.S. consulate or embassy

There is a whole host of pitfalls that you could encounter when dealing with fee payment. From knowing which fees to pay to learning where the fees need to be sent, it can be very easy to cause your petition to be rejected on account of a mistake in the fees. That’s why it is never recommended to go through the EB-5 process without an experienced immigration attorney’s help.

EB-5 Denial

Of course, there is always the possibility of receiving an unfavorable decision for your EB-5 petition, especially if you plan on petitioning on your own. Getting an EB-5 rejection or denial is never good, but you are not without options.

Legal Motions – You might be able to file a motion to reopen your case if you have come across new evidence or documents that may change the decision if your case were to be opened again. Conversely, you can file a motion to reconsider if you think that the evaluating officer was incorrect in his or her decision. However, you will need to prove it from a legal standpoint, something that should only be attempted with the help of an attorney.

Appeals – You may also be able to appeal to a third party, the Administrative Appeals Office (AAO), for a second review of your case. However, keep in mind that the AAO is part of the USCIS, and they do not often overturn their officers’ decisions.