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Answers about Immigration

There is much to know about the Immigration process. We've complied a list of the 21 most frequently asked  questions pertaining specifically to Immigration and the EB-5 Investor Visa.  For the most accurate and current information refer directly to the USCIS website

What is the I-526 Petition Process?

What is the difference between a conditional and unconditional green card?

What is an Escrow account? How am I protected against losing my money with an escrow account?

Am I eligible for employment in the US while the Adjustment of Status is being processed?

If the USCIS approves my I-526 petition, why is the Consulate application and interview still necessary?

The investor's money must be gained from a lawful source, what does this mean?

If I live in the United States but do not have currently have a visa, am I eligible to apply?

Am I required to be in good health when applying for an EB-5 Visa?

How long will the permanent residency be valid for?

Who receives the permanent residency with an EB-5?

What is the I-829 petition or "Removal of Conditions"?

Are there a minimum number of days I must remain in the United States each year? What if I need to leave the country?

What level of business experience or education is required?

Is overseas travel permitted while the I-485 Adjustment of Status is being processed?

Once my permanent residency is granted, can it be taken away?

Is fluency in English a mandatory to be approved for an EB-5 Visa?

What is the difference between permanent residency and citizenship?

Are family members able to interview in different countries after the petition is approved?

Do you file the form I-526 after the investment is made or during the Consular process for admission to the U.S.?

What is the difference between Consular Processing and Adjustment of Status?

If the USCIS has denied previous applications for an L-1, E-2, B or other visa, am I still eligible to apply for the EB-5?






1 What is the I-526 Petition Process?

The first step in the process for foreign investors looking to obtain lawful permanent residence is to file a form I-526 for Alien Entrepreneur in conjunction with the documents supporting the EB-5 Investor Visa program requirements.  The USCIS evaluates and judges I-526 applications based on, (but not limited to) the following criteria:

·      New Commercial Enterprise: evidence must indicate that the business is new and authorized to transact business.
 
·      Investment Capital: The application must be supported by documentation which shows that the investor has invested or is in the process of investing the minimum amount of required capital.  USCIS will expect that these funds to be classified as "as risk", indicating an irrevocable commitment to the business investment. 
 
·      Source of Capital: Documentation must be provided which supports the legal acquisition of funds.  If assets are not deemed to be lawfully acquired, they may not be deemed "at risk" by the USCIS.
 
·      Managerial Role: The investor is expected to actively participate in the management of the business venture through policy development and holding a management position.  If the goal is to obtain a green card and play a more passive role in the investment, participating in the EB-5 Regional Center (Pilot) program is the specific and appropriate category to make an investment.
 
·      Amount of the Investment: The I-526 application must show evidence that the required minimum investment of USD$1,000,000 or USD$500,000 for designated Regional Centers located in a TEA has been made.
 
·      Employment Creation:  The EB-5 Investor Visa program requires that 10 jobs for U.S. Citizens be created on account of EACH investment that is made.  Please refer to the EB-5 Job Creation Guidelines section for further details. 
The USCIS will approve the I-526 application for Alien Entrepreneur only if the above listed criteria has been met.  It is at the sole discretion of the USCIS to determine if this criteria has in fact been met accordingly and the USCIS may request further information to conclude if the investor is in full compliance with all guidelines before approval of the I-526 and issuance of a conditional green card.

2 What is the difference between a conditional and unconditional green card?


Under the regulations an investor who is approved for the EB-5 Immigrant Visa receives a “conditional” green card because of the requirements that must fulfilled in the commitment of the investment and creation of the jobs that their money is to be used to create.  This conditional status must be either reissued after two years or is subject to removal of conditions through the application of form I-829.  Otherwise, the two cards offer the same rights and privileges with the exception that the Unconditional or permanent green card is good for 10 years between renewals.
 
3 What is an Escrow account? How am I protected against losing my money with an escrow account?

For many people who are considering an EB-5 Investment their is concern as to how safe their money will be while waiting for the approval of their I-526 application and acceptance into the EB-5 program.  During this time the Investor's deposits and funds will be held in an "Escrow Account".

An Escrow Bank Account is a legal, interest-bearing account established in a chartered bank.  An Escrow account is most commonly used in the sale of real estate, businesses and personal property and is governed under different and more strict rules than a common bank account.
 
The initial deposit from you (the investor) is placed in an interest-bearing escrow bank account.  When the account is established the assets continue to belong to the investor.  The investor has an agreement with the bank or attorney that requires the assets to be transferred from the escrow account to the EB-5 Project's bank account upon approval of the Investor's EB-5 application by the USCIS.

4 Am I eligible for employment in the US while the Adjustment of Status is being processed?


The "Adjustment of Status" is also known as the filing of the form I-485.  Unless the Applicant has been admitted to the United States with a Non-Immigrant status that grants him/her the authorization to work and this authorization does not expire before the Adjustment of Status is granted, then the applicant must obtain the necessary authorization to work.
Authorization for employment typically takes 60-90 days and processing times could be longer if background checks on the applicant are required.  Authorization for employment is usually granted during the time required, but no longer then one year and it may be necessary to re-apply for authorization if the Adjustment of Status is not complete by the expiration date of the granted employment authorization.  Employment without authorization at any time in the U.S. is a violation of immigration status and may jeopardize the right to adjust status.  It is strongly recommended that this issue be discussed with the Immigration Attorney who is handling your application.

5 If the USCIS approves my I-526 petition, why is the Consulate application and interview still necessary?

There are a number of reasons why the Consulate application and interview are still required.  However the primary reason is that the U.S. Consulate in your home country must prepare documents for the Visa interview upon approval of the I-526 application.  This procedure is required to ensure that the investor and their family members undergo medical exams, police, security and immigration history checks before the Conditional Permanent Resident Visa is issued. 

During the interview process the Consulate will address these issues, request that the investor provide a summary of what the nature of their investment is and discuss the information included in the I-526 application.  If the investor, their spouse and family are already based in the United States, an Adjustment of Status may be applied for by filing form I-485 with the appropriate USCIS office.
 
6 The investor's money must be gained from a lawful source, what does this mean?

This is often a very big hurdle for many potential EB-5 Investors to overcome and prove that the money or funds which are being used for the EB-5 investment have come from a legal and traceable source.  The regulations set forth by the USCIS require that the foreign investor verify that the investment assets were gained in a lawful manner.  This means that the investor must prove the funds were obtained through a business, salary, investment, property sales, monetary gift, inheritance, loan or other means and be legally traceable.
 
7 If I live in the United States but do not have currently have a visa, am I eligible to apply?


Yes, if you are currently living in the United States without a proper Visa you are still eligible to apply for an EB-5 Investor Visa.  However you are not permitted to apply from within the United States.  Out-of-status individuals are considered to be Students, Tourists or E-2 Treaty Investors who no longer have a valid Visa because they may have remained in the United States after their previous Visa was revoked or has expired.
 
8 Am I required to be in good health when applying for an EB-5 Visa?


You are required to prove that you are in good health when applying for an EB-5 Visa.  At the time of application and when you are present for your interview at the U.S. Consulate or U.S. Embassy,  the applicant, the Spouse and any unmarried children under the age of 21 that are going to be applying for conditional residency status will be required to undergo physical examinations and may be required to provide medical records for review.
 
9 How long will the permanent residency be valid for?

When the application through the EB-5 Visa program is accepted the investor will receive Conditional Permanent Residence (often referred to as a conditional green card) which is valid for two years.  To receive your regular Lawful Permanent Residence, you must apply for removal of the "conditions" within 90 days before those two years expire (usually 21 months after the Conditional Green Card has been issued).  Failure to remove the conditions will invalidate the green card and the Conditional Permanent Residence will be terminated.  Be aware that problems may arise if you apply to remove the condition too early or too late so consulting your Immigration Attorney is essential. 

The unconditional green card (often referred to as the Permanent Green Card) is good for ten years, after which it becomes invalid and requires that you apply for a new one using form I-90.  It does not mean that after ten years, you stop being a legal permanent resident.  Without a valid green card you are not permitted to work or live in the United States, nor are you permitted to use the green card to travel outside of the United States.
 
10 Who receives the permanent residency with an EB-5?


After the first 21 months of having the conditional green card, the investor and their respective family members are now eligible to apply for the "removal of conditions".  Once this has been applied for with USCIS and it has been approved, then the Investor, their Spouse and any unmarried children under 21 years of age will be granted permanent U.S. residency.
 
11 What is the I-829 petition or "Removal of Conditions"?

The granting of the EB-5 Visa or the approval of the Adjustment of Status followed by the entry into the United States means that the EB-5 investor, their spouse and qualifying children have been granted Conditional Permanent Residence for two years.  After that time the "conditions" must be removed so that the aliens may reside in the United State indefinitely.  Failing to remove these conditions under the removal guidelines may result in termination of the Conditional Permanent Residence status and will more than likely result in removal proceedings. 

It is necessary to file a petition for removal of conditions in the 90 day period immediately preceding the second anniversary of Conditional Permanent Resident status being granted.  This process usually begins about 21 months after the conditional green card has been issued.  At that time the foreign investor, must demonstrate full investment to the business venture and be compliant with all set forth requirements.  The foreign investor must also demonstrate continuous maintenance of the investment since becoming a Conditional Permanent Resident.   The Managing Partner of the investment project is required to provide supporting documentation at the request of the investor to aide in the application of Removal of Conditions.
 
While the I-829 application is in the review process the Applicant remains in Conditional Lawful Residence even if the application is still not finalized before the expiration date.  Typically the Conditional Permanent Resident status is extended in one-year increments or until the I-829 application is approved by USCIS.

12 Are there a minimum number of days I must remain in the United States each year? What if I need to leave the country?


Upon receipt of the visa from the U.S. Consulate or Embassy in the country the investor resides, the investor has 180 days to enter the United States to establish residency.  Proof of establishing residency is done through obtaining a driver’s license, social security number, opening a bank account, paying federal or state income taxes or renting/buying a home. 

Once residency is established the investor may work overseas if it is required due to the nature of their business or profession, but all permanent residents must remain in the U.S. for more than 6 months each year and unless the USCIS is informed in advance of an extended absence the U.S. government will consider them to have abandoned their permanent resident status. 
Legal permanent residents are subject to important restrictions when it comes to "Abandonment of residency" rules.  You are permitted to travel abroad as long at the trip is temporary and it is advised that a re-entry permit be obtained before departure.

13 What level of business experience or education is required?


There is no minimum level of education required for an EB-5 Visa application to be approved.  There are no minimum amounts of business experience required of the investor either.  The only requirements are for the investor to be able to prove that they have the required capital needed for the investment and that they are able to prove a liquid net worth of no less than USD$1,000,000. 

(required capital for investment is either USD$1,000,000 for a regular EB-5 Investor Visa or USD$500,000 if the investment is placed into an approved Regional Center project)
 
14 Is overseas travel permitted while the I-485 Adjustment of Status is being processed?


The question of whether or not an applicant is allowed to travel overseas while they are pending the completion of their form I-485 Adjustment of Status is often asked of our staff. If a foreign investor leaves the United States during the Adjustment of Status process without advance permission, it will have been deemed abandonment unless the applicant holds a valid H or L non-immigrant status of the Adjustment of Status application.  So long as the Applicant receives that advance permission then there will not be a problem for the Applicant.

The USCIS routinely issues advance permission to depart the U.S. only if the applicant demonstrates a legitimate need to travel.  Requesting advance permission is considering requesting "Advance Parole" and it is typically granted for multiple entries during the time required to complete the Adjustment of Status process, but for no longer then one year.

Aliens who are located outside the US are not eligible for Advance Parole.  Those applicants wishing for the right to travel outside of the U.S. need to be sure the request is made while they are IN the United States and they must remain in the United State until the Advance Parole is granted to avoid abandonment of their Adjustment of Status application.  Processing and approval of the Advance Parole applications may be subject to background checks and may be expedited upon request, but the approval process typically takes between 60-90 days. 

Foreign investors admitted to the United States with non-immigrant status, who have obtained Advance Parole during the Adjustment of Status process should be sure to consult with their immigration attorney before travel outside of the United States. 

15 Once my permanent residency is granted, can it be taken away?


There are two conditions that you are required to meet in order to keep a green card once it is received.

First you must not become removable or prohibited (being convicted of a crime is the most common way of failing to meet this requirement).

Secondly, you may not abandon the United States as your Permanent Residence. As long as you do not make your home outside of the United States, then you are still legally a resident of the US.

Problems with the USCIS arise when they will judge your intention by the way you act, leaving the country for more than a year may present difficulty when you want to re-enter the country. The USCIS considers extended absences from the US possible abandonment which is why any absence from the US should not exceed six months in order to avoid a full-scale investigation.
It is often thought that all you need to do in order to keep your green card is re-enter the United States at least once a year, this is not the case. If you ever leave with the intention of making another country your home you automatically give up your US residency when you leave. However, remaining outside the US for more than one year does not mean you will automatically give up the granted residency. If the absence was intended and made known from the start, you may still be able to keep your permanent resident status. Though it may be required to us a special immigrant visa for re-entry to the US, rather than your green card.

16 Is fluency in English a mandatory to be approved for an EB-5 Visa?


There is no requirement by USCIS for an applicant to prove that they or any member of their family is fluent in English when applying for an EB-5 Investor Visa nor is fluency in English required to receive a Conditional Green Card.
 
17 What is the difference between permanent residency and citizenship?

The difference between permanent residency and citizenship is that you become a legal permanent resident once you receive your green card.  This gives you most of the rights and obligations of a U.S. citizen, such as having the same tax filing requirements and being entitled to the same tax rates or reductions.  However you will not have the ability to vote or be eligible to receive some public benefits.

Your green card is the most important travel and identification document.  Please review it carefully upon arrival, it may need to be extended to ten years and if a replacement is needed before then or if its lost, stolen or falling apart you will need to file a form with the USCIS for a replacement.

The right to obtain US citizenship is granted after five years and is one of the most important rights that is given to legal permanent residents.  There are only two ways to become a United States citizen, being born in the United States or being born to a U.S. citizen is the first way. 

The other way to become a U.S. citizen is by naturalization.  Becoming a Legal Permanent Resident is the first step in becoming a U.S. Citizen through naturalization.  Being present in the U.S. for at least 30 months during the five years prior to the naturalization application is required.  Having the right to vote or hold public office is granted to an individual once they become a U.S. citizen. 

Your Immigration Attorney will be able to provide more material details with regard to the required steps needed to be taken to be granted full U.S. citizenship.

18 Are family members able to interview in different countries after the petition is approved?


It is often thought that when making application for an EB-5 Investor Visa and family members are going to submit themselves for interview with the U.S. Consulate or U.S. Embassy that all family members must be present at the same time.  Although the country of origin where the family has citizenship is the standard interview site, family members are permitted to interview in different countries. 

If for example a child is attending school in the United States, then it is not necessary for the student to return to their home country to complete the interview process.  This Child's resident status can be adjusted in the United States at a USCIS district office.
 
19 Do you file the form I-526 after the investment is made or during the Consular process for admission to the U.S.?


Potential EB-5 Investors should be sure to consult with the appropriate attorneys to determine how to maximize the likelihood of a temporary (non-immigrant) admission to the United State subsequent to making an investment into an approved EB-5 Regional Center or filing their I-526 application.

Admission to the United States as a visitor or under most other non-immigrant status levels is based on the intent to depart the U.S. upon expiration of the existing visa.  It will be difficult to establish non-immigrant intent for an investor once funds have been paid into an EB-5 project or an I-526 has been filed since the purpose of the investment and the application is to establish lawful permanent residence for the investor and their family.

20 What is the difference between Consular Processing and Adjustment of Status?


The investor, their spouse and children under the age of 21 years may apply for admission to the United States as Conditional Permanent Residents upon approval of the I-526 application.  Under the approval guidelines of the I-526 the documented investment qualifies the Investor as an Alien Entrepreneur, not as a Lawful Permanent Resident.

With the request of Adjustment of Status, the USCIS conducts a series of background checks on the Investor and members of the family who are also seeking admission to the United States.  Once the Adjustment of Status is accepted, the investor is allowed to stay in the U.S. even if the original period of authorized length of stay has expired.  Although travel documents can be applied for with the USCIS the investor is not allowed to leave the United States during this time.  If an existing work permit is at risk of expiration or if the investor is seeking to work in the US while awaiting a decision on their application, the appropriate forms must be filed with the USCIS.

Consular Processing is the alternative to Adjustment of Status, but still requires the Immigrant Visa Petition to be completed on behalf of the applicant.  If the applicant is outside of the United States then the process should be completed with the U.S. Consulate or U.S. Embassy in their country of origin.  If the application is approved the U.S. Consulate or Embassy will then issue the EB-5 Immigrant Visa to the investor which grants them the right to travel to the United States as a Conditional Permanent Resident.

21 If the USCIS has denied previous applications for an L-1, E-2, B or other visa, am I still eligible to apply for the EB-5?


Even if you have been turned down for other available visa classifications, you may still be eligible for an EB-5 Investor Visa.
Unless the reasons for rejection are related to immigration fraud or other major problems, previous application rejections will not disqualify the investor from applying for an EB-5 Visa.  What is most important is that all U.S. immigration history problems, medical and criminal problems be fully disclosed in advance of the application.