Presently, the EB-5 program allots ten thousand (10,000) immigrant visas per year for aliens and family members whose qualifying investments meet the specific criteria of the program. Three thousand (3,000) of these visas are set-aside for aliens who invest through regional centers, such as IMI Regional Center. Currently, USCIS interprets visas set-aside to ensure that a minimum of 3,000 visas are made available for regional center applicants. This is not a limit to the number of visas actually issued.

The investment must be in a “new commercial enterprise”, as defined in federal regulation. By definition, “new’ means an enterprise created after November 29, 1990; however, if an enterprise was created before that date, and the investment is made for the purpose of restructuring or expanding that enterprise, it may also meet the statutory requirements. “Commercial enterprise” may include any for-profit entity formed for the ongoing conduct of lawful business. While this definition may include several types of organizations and businesses, it does not include personal or non-profit entities.

Generally, for investments in areas other than “targeted employment areas,” the minimum amount of investment is $1 million. Investments in “targeted employment areas,” including IMI Regional Center, can qualify with a minimum of $500,000. IMI Regional Center has met the requirements for “targeted employment area” and was approved by USCIS as a “Regional Center”.

Federal regulation requires that the investment be placed “at-risk” for the purpose of generating a return on the capital. As such, there is no guarantee on a return of investment; however, IMI Regional Center takes many steps to minimize the amount of risk by maintaining adherence to an ongoing due diligence plan.

In addition to the minimum investment, it must be shown that the investment will result in the creation of at least ten (10) full-time jobs as a result of the new commercial enterprise. The EB-5 applicant must also enter the United States to “engage” in the new commercial enterprise.

The investment must create full-time employment for ten (10) U.S. citizens or other immigrants (legal permanent residents or other specific immigrant categories) and may not include the investor or the investor’s spouse or children. The jobs must be created within the two (2) year period immediately following the investor becoming a permanent resident; however, through an approved regional center such as IMI, the investment may create ten (10) full-time jobs either directly or indirectly.

To qualify under the federal statute as “engaging” in the new commercial enterprises, the investor must maintain more than a passive role in the enterprise. The investor must either be actively involved in the day to day management of operations or take an active role in policy formation.

Federal regulation does not require any prior experience, business or otherwise.

The term “invest” means to contribute capital, which is defined by statute as cash and cash equivalents, equipment, inventory, and other tangible property. The capital must already have been invested prior to submission of the immigration petition. All capital is measured in U.S. dollars and at fair market value at the time of investment. The investor must be able to show documentary proof that their funds were gained in a lawful manner (i.e. through lawful business, salary, investments, property sales, gift, inheritance, etc.). In addition, the investor must show actual commitment of the funds, not merely affirm an intention to invest sometime in the future, and the funds must be placed “at-risk”.

Loans may not be used as capital in the EB-5 program; however, certain gifts and inheritances may be eligible. Again, each investor must be able to document and trace the lawful acquisition of their funds. Funds obtained by gift or inheritance must be carefully analyzed to ensure compliance with the strict requirements of the program.

All EB-5 investors are required to sustain their investment until the jobs are created or realized and the conditions on their status have been removed upon approval of the removal of conditions petition.

The procedure for obtaining permanent residence through an investment is similar to that when permanent residence is sought for other employment-based immigrants. As with all immigration matters, competent legal counsel should be consulted. Please see our timeline for a detailed description of the process.

If an immigrant visa number is available, the application for permanent residence may be made at a U.S. consulate outside of the United States or, if the investor is in the United States and is eligible, the application may be made here in the United States to adjust status to that of a legal permanent resident. Upon approval, the investor and his qualifying family members will receive conditional permanent residence.

Conditional permanent residence is valid for two years from the date issued. The investor must file the appropriate petition to remove the conditions on his permanent residence within the ninety days prior to the two year anniversary. In order for the conditions to be removed, the investor must establish that he or she continues to meet the conditions of the program. Failure to file the petition will result in termination of the status.

Immediate family members of the investor may immigrate to the United States with the investor. No separate immigrant petition will be required for such family members, as they will be considered derivatives of the investor; however, sons and daughters must meet the statutory definition of “child”. For immigration purposes, a “child” must be unmarried and under the age of 21 (certain age-out protections may apply for children who reach the age of 21 before final permanent residence papers are issued and must be analyzed on a case by case basis).

The rule permits USCIS to remove the conditional status of spouses and children of a deceased investor if it is established that the requirements for removal of conditions have been met. In addition, the spouse and children may also petition to remove the conditions even if the spouse has divorced the investor; in this situation, the divorced spouse and children may still be included on the investor's petition or may file their own petition and are eligible to have their conditions removed only if USCIS removes the conditions of the investor.

There are many benefits and advantages in utilizing a Regional Center for your EB-5 investment. Investing through a Regional Center means that the investor may choose not to be involved in the day to day operations of the investment, allowing more flexibility, the job creation requirement may be met through indirect jobs, and the required investment amount of IMI Regional Center is $500,000 rather than $1 million. If the investor so chooses, he may live, work, and retire anywhere in the U.S. and is not limited to the geographic scope of the commercial enterprise in which he invested.

The entire process, from the initial petition to obtaining conditional permanent residence may take anywhere from 1.5 – 2 years. Processing times will vary depending on a variety of factors, including complexity of the case and overall USCIS and Embassy workload.

If your children meet the statutory definition of “child”, they remain eligible to apply for permanent residence as a derivative family member. If they are currently in the U.S. on an F visa, they do not have to return to their country of origin and may apply to adjust status in the United States.

If issued, the immigrant visa is valid for six months to allow the recipient time to complete necessary preparation for a move to the United States. Validity period means that the individuals must present themselves at a U.S. port of entry within the specified time period. It should also be noted that family members of the principal applicant, the investor in this case, must enter the U.S. either at the same time as or after the investor and may not enter first.

In applying for permanent residence, all applicants are subject to a background check and all applicants who have been convicted of a crime must obtain and submit a certified copy of each court record and any prison records, regardless of whether subsequently benefitted from an amnesty, pardon, or other act of record clearance. Generally, drinking and driving offenses do not render an individual inadmissible; however, each case is adjudicated individually. It is important to disclose any information that may affect your application or entry into the United States and competent legal counsel should be consulted regarding all criminal matters.