What is EB-5 Visa for USA?

The investor visa for the US is called EB-5 after the employment-based fifth preference visa issued.

US Employment-based visas are –

• `EB1 (First Preference), for those with extraordinary ability, outstanding professors or researchers, and multinational executives and managers.
• EB-2 (Second Preference), for those with advanced degrees or exceptional ability.
• Business trust,
• EB-3 (Third Preference), for professionals, skilled workers, and other workers.
• EB-4 (Fourth Preference), for “special immigrants”
• EB-5 (Fifth Preference), for business investors.

Employment-based visas allow you to migrate to the US based on your job skills.

140,000 US immigrant visas are available in each financial year for foreign nationals – as well as their spouses and children – that seek to immigrate to the US based on their job skills.

There are five different employment-based immigrant visa categories available – EB-1, EB-2, EB-3, EB-4, and EB-5. Some require a prior job offer from a US employer (the sponsor). Certain categories need an approved labor certification from the US Department of Labor (DOL).

A DOL labor certification is a verification of a shortage of available, qualified, and willing US workers to fill the position offered at the prevailing wage. Also, a DOL labor certification means that the hiring of a foreign worker will not be adversely affecting the wages and working conditions of US workers employed in similar positions.

A labor certification will be required for –

• EB-2
• EB-3

GBP 50,000 in investment funds will have to be shown.

• EB-2
• EB-3
• EB-3

USCIS has no age limit for EB-5. You must, however, be above 18 years of age to be able to clearly understand the investment and application process.

To be eligible for the EB-5 visa, a foreign investor must invest the specified capital in a new US commercial enterprise that will lead to the creation of full-time positions for a minimum of 10 Americans.

No. You cannot hire H-1B visa holders, or any non-citizen in any nonimmigrant status, when you set up a commercial enterprise in the US on an EB-5 visa. Qualifying employees that might be hired by EB-5 investors include – lawful permanent residents, US citizens, refugees, asylees etc.

Full-time employment means employment in a position requiring a minimum of 35 working hours in a week. An EB-5 investor will be required to provide full-time employment to 10 qualified US workers. These jobs can be either created or preserved by the immigrant investor.

No. You will have to be actively engaged in the company. You can either be in a managerial position or keep to a policy-forming role.

If investing directly for EB-5 status in US, you can –

• Create an original business,
• Buy an existing business established before November 29, 1990, or
• Buy an existing business and restructure or organize it so that an entirely new business entity is formed.

No. A passive investment will not qualify you for EB-5. Investment in a regional center generally amounts to a limited partnership as the investor is considered to be sufficiently engaged in the management based on their investment.

No. You can’t count yourself, your spouse and children among the required employees. Other family members might be counted if they have the proper authorization to live and work in the US (must have more than a temporary nonimmigrant US visa). US Green card holders can be included.

Investment in a regional center is a better alternative for a foreign investor whose primary aim is securing US permanent residency and not the actual management of a new business.

As on October 25, 2021, there were a total of 632 USCIS approved regional centers.

No. You can’t share the US investment with others. The entire amount must come from you.

No. The investment for EB-5 need not be only in cash. You can have other cash equivalents, such as – loans, certificates of deposits, promissory notes etc. – all counted towards the investment total.

A targeted employment area can be an area that is either –

• Rural, or
• Has experienced a high level of unemployment, as compared to the national average unemployment rate.

In a year, up to 10,000 foreign investors can be granted US permanent residency. The total number of investors that can apply from a particular country in a year is also subject to a 700 per country limit.

Previously, there has been a high demand for EB-5 visas from investors with China or India as their nationality.

No particular business training or experience required. If you have the required money to invest and show that you have the potential to create jobs, you may be eligible for the EB-5 visa program.

To maintain your EB-5 status, you must actually live in the US.

You will have to maintain your investment and be actively involved with the company for the next two years from being granted your EB-5 status. Once you have your unconditional green card, you can choose to work for another company or stop working altogether.

For the EB-5, the business that you invest in must –

1. Employ a minimum of 10 full-time workers
2. Lead to a product or service production, and
3. Benefit the US economy.

Independent contractors can’t be included as employees.

A regional center gets investment from multiple investors for funding a project. A foreign national investing directly is on their own, so to speak. The main differences between the two routes to EB-5 are –

1. Involvement: Regional Centers don’t require every individual investor to be directly involved. A direct investor must be directly involved with the day-to-day working of their US business to maintain their EB-5 status.
2. Number of investors: Regional Centers have many investors coming together in a mutual investment. EB-5 private investment is limited to a single individual.
3. Job creation and proving of jobs: Regional Centers can create direct and indirect jobs. The job creation can be proved on an estimate and don’t have to be proved directly. Private investments require proving the creation of 10 direct jobs.
4. Control: Regional Centers provide limited control. A direct investment generally makes you the sole owner.
5. Ownership: Regional Centers don’t offer ownership as the investment is by many. A direct investment tends to get you complete ownership.