EB-5 Visa - U.S. Green Card for Investors

The general requirements for the EB-5 visa are:

• Investment in a new commercial venture

  1. Companies are considered to be new if they
     • were founded after 29/11/1990 or
     • were founded on or before 11/29/1990 but
       • purchased and restructured to create a new commercial enterprise or
       • expanded as a result of the investment to such an extent that the number of employees or the net value has increased by at least 40%.
          
  2. Various U.S. business models are considered commercial provided they pursue profit-making, legal business activities. Acceptable business models include corporations, holding companies and partnerships.

• Investment in a regional center (passive investment)

  • Those who do not wish to start their own business or invest in a company where they would then also have to work and take on responsibility have the option of investing in a “regional center.” The regional center institution was created by the U.S. government to offer foreign investors the opportunity to obtain a green card through a purely passive investment.
     
  • The projects of these Regional Centers (e.g. construction of retirement homes, hospitals, hotels, etc.) in which foreigners can invest are almost all located in structurally weak areas, so that an investment of USD 800,000 is sufficient. Investors should note that regional centers charge an additional administration fee, which can amount to several tens of thousands of U.S. dollars.
     
  • Another advantage is that the required jobs can be created not only in the company itself, but also in the project's environment, e.g. through construction activities and the like, and have often already been created when the EB-5 petition is submitted. However, you will still receive a conditional green card at first.
     
  • One disadvantage of investing in a regional center is that the investor has no influence on the fortunes of the company. There have also been a few fraudsters among the ranks of regional centers.

• Creation or maintenance of at least ten full-time jobs

  • These ten full-time jobs must be awarded to qualified U.S. workers and generally must be in place within two years of obtaining the EB-5 green card.
    1. Full-time jobs are jobs with a work time of at least 35 hours per week. A full-time position may be filled by two part-time employees; however, positions requiring only part-time employees will not be considered.
    2. Qualified U.S. workers are U.S. citizens, green card holders and other persons with valid U.S. work authorization.
        
  • If the jobs are merely preserved, proof that the company was at risk must also be presented.
    1. Companies are considered at risk if they have recorded a net loss in the 12 or 24 months preceding the official date of receipt of the investor's petition by U.S. immigration authorities (priority date).
    2. Moreover, this net loss must represent at least 20 percent of the net value of the company prior to the at risk period.

• A sufficient capital investment

  1. Capital generally refers to cash, business assets, inventory, other tangible assets, cash equivalents and loans secured by the investor's assets.
      
  2. The minimum investment amount is generally USD 1.05 million. A smaller investment of USD 800,000 may also be sufficient in some cases. The EB-5 Reform and Integrity Act of 2022, signed by President Biden on March 15, 2022, stipulates that 20 percent of the total available visas are earmarked for investments in rural areas, 10 percent for investments in high unemployment areas, and 2 percent for investments in infrastructure projects.

Investors do not have to meet any special personal requirements; in particular, there are no specific requirements regarding their education or professional experience. However, as is generally the case in U.S. immigration law, criminal convictions, even minor ones, can jeopardize the granting of a visa or green card.

If investing in a company that is not a regional center, it must be demonstrated that the investor is involved in the management of the company and in what form. Although no special evidence of qualification for this position needs to be provided, caution is advised if there is any suspicion that the position is only formal.

The investor must prove that the funds they are investing were acquired legally. If the funds they are investing come from a gift or inheritance, it may also be necessary to show how the donor or testator acquired their assets. A proof of origin for U.S investor visas may help.

Once all requirements have been met, you can apply for an EB-5 visa. However, it is advisable to seek legal advice before submitting your application. Depending on the type of investment, economic conditions, or location of the company, there are various strategic considerations and factors (e.g. whether an existing company is considered “new” under the EB-5 visa regulations) that should be carefully examined.

Applying for an EB-5 green card involves the following three steps:

1. The investor submits a petition. The petition consists of forms (including Form I-526, Immigrant Petition by Alien Entrepreneur) and documents proving that the necessary requirements have been met.
    
2. If the petition is approved, the investor has two options:
   • If he is legally in the U.S. at the time the petition is approved and has entered the country on a non-immigrant visa rather than visa-free, he may be able to apply for an adjustment of status in the U.S. to change his status from non-immigrant to immigrant. However, not every legal stay entitles the person to do so; for example, diplomats are excluded from this option, as are persons who entered the country on a J-1 visa. Visa-free entry (ESTA) also does not entitle the person to an adjustment of status in this case.
   • If adjustment of status is not possible or not desired, an immigrant visa is applied for at a U.S. consulate outside the United States. Upon entry, the investor is considered a Lawful Permanent Resident and receives a stamp in their passport from the immigration officer as proof of this; the green card itself will be sent within a few weeks or months.
      
3. As an EB-5 investor, you will initially receive a “conditional” green card, which is only valid for two years. In order to remove the condition and obtain permanent green card status, the investor must submit a petition to remove the condition (Form I-829) within 90 days before the expiration of their conditional green card. If you can prove that you have already met the above requirements for the EB-5 green card (in particular, the creation or preservation of jobs) or that you have not yet met these requirements but will meet them within a reasonable period of time, the condition will be removed and you will receive a green card without a time limit.

The EB-5 program – in particular the Regional Center Program – is not permanently enshrined in U.S. immigration law, but is based on a temporary legal basis that must be regularly extended by the U.S. Congress. The program's continued existence therefore depends largely on political decisions. In the past, this has repeatedly led to temporary interruptions (program gaps) during which no new applications could be submitted and ongoing procedures could not be processed because the legal authorization had expired.

It is therefore advisable for investors to submit an EB-5 application as early as possible in order to secure “grandfathered-in” status. Those who have already submitted a proper EB-5 petition remain protected even if Congress temporarily fails to renew the program or makes structural changes. The legislature has expressly provided that such applicants may continue their proceedings – even if future investors are no longer able to submit new applications. This significantly increases legal and planning security for existing investors.