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EB-5 Visa Frequently Asked Questions

Section 2: EB-5 Visa Immigration Matters

Questions

1. Must I have previous business experience or education?
2. Must I speak English?
3. Must I be in good health?
4. What are the benefits of the green card?
5. What is meant by the requirement that the investor’s assets be “lawfully gained”?
6. Can money gifted by a parent or other relative be used for an EB-5 Investment?
7. What is the difference between 'conditional' and 'unconditional' green cards?
8. What is a 'Conditional' Green Card?
9. If my I-526 petition is approved by USCIS, what is the purpose of the Consulate application and Interview, and how soon do I get my “Green card”?
10. Can I apply if I have been rejected or terminated in the past by USCIS for a L-1, E-2, B, or other visa?
11. After petition approval, can members of the family interview in different countries?
12. Who receives the permanent residency ('green card')?
13. What issue caused the most problem when applying for an EB-5 visa
14. How long must I remain in the United States each year?
15. What is the difference between permanent residency and citizenship?
16. Can my Green card be taken away from me? - How to Keep Your Green Card After You Get It!
17. I need to travel out of the US for more than a year. Is there nothing I can do?
18. How long is a Green Card valid for?
19. Are any countries excluded from eligibility for the EB-5 Visa program?
20. What is an 'escrow' account, and when does the investor transfer the money to this account?
21. How does the bank 'escrow' account protect me against the risk of losing my money?
22. Can I apply if I am currently out-of-status (i.e., I live in the United States, but do not have a current visa)?
23. What is a Designated Regional Center?

Answers

1. Must I have previous business experience or education?

The investor is not required to have any prior business experience. Likewise, the investor is not required to demonstrate any minimum level of education. The only requirement for the investor is that he or she has the required net worth and capital.

2. Must I speak English?

No

3. Must I be in good health?

Yes

4. What are the benefits of the green card?

Each person has his or her own reason for wanting permanent residence in the  United States , and having a green card provides many benefits that accomplish these goals:

• All legal permanent residents under the EB-5 Investor Program enjoy the same benefits as every other United States resident.
• The U.S. is a safe harbor for your family as well as your personal and business investments. Any member of the family with a “green card” can enter the U.S. at any time and stay as long as he or she wishes.
• Investors have constant and easy access to the United States for personal, trade and business purposes.
• Permanent residents travel to the U.S. without the need of a visa. Investors may work, live, or own their own proprietary businesses anywhere in the United States.
• The U.S. has internationally recognized colleges and universities for both basic education and graduate study. As a resident, the investor can benefit from lower tuition costs.
• The cost of living in the U.S. is less than most large industrial nations. Consumer goods, services, and housing are significantly less expensive than comparable services and goods in most other countries.
• Students may work in the U.S. while they attend college and then continue to work afterwards, enabling the student to pay for part of his education and to work while attending graduate and postgraduate studies.
• The U.S. provides many financial, social and education entitlements: public schools, health and medical attention, social security, and education.
• The Investor has the ability to bring other family members to the U.S. after proper application, and can obtain U.S. citizenship after 5 years.
• The permanent residency requires no renewal or re-application. Other U.S. non-immigrant visas, such as E-2 and H may never result in permanent residency, have time limits, and require additional filings with USCIS or Department of State. Furthermore, U.S. immigration laws may change and prevent future approval when a renewal of visa is required.
5. What is meant by the requirement that the investor’s assets be “lawfully gained”?

Under USCIS regulations, the investor must demonstrate that his assets were gained in a lawful manner. This requires the investor to prove his investment funds were obtained through lawful business, salary, investments, property sales, inheritance, gift, loan, or other lawful means.

6. Can money gifted by a parent or other relative be used for an EB-5 Investment?

Yes, provided that any applicable gift taxes are paid. It must be demonstrated that the gift is an actual arms length transaction and is a not a mere ruse or that the gifted funds will be given back after permanent resident status is granted.

7. What is the difference between "conditional" and "unconditional" green cards?

Under the regulations, an investor who is approved for the EB-5 immigrant visa receives a “conditional” green card, which must be reissued after two years, subject to removal of conditions.. Otherwise, the two cards offer the same rights and privileges.

8. What is a 'Conditional' Green Card?

A conditional Green Card is a temporary Green Card valid for two years. One year and nine months after it is issued, a three-month window opens up during which an individual must file another application with the CIS to verify that all of the funds have been invested and employment created, - in a regional center whether directly or indirectly. . When the conditional resident status has been lifted, full resident status is granted and a permanent Green Card is issued.

9. If my I-526 petition is approved by USCIS, what is the purpose of the Consulate application and Interview, and how soon do I get my “Green card”?

Upon approval of I-526 Petition, you must wait for notification from the US Consulate in your home country to prepare documents for the Visa interview. The purpose of this procedure is to ensure that the investor and his or her family undergo medical, police, security and immigration history checks before the conditional permanent resident visas are issued. At the interview, the consulate officer may address these issues and information printed on the I-526 application, including asking the investor to summarize the nature of his or her immigrant investment. If the investor and his or her family are in the United States, then you may apply for adjustment of status by filing form I-485, and supporting documents, the application may be filed at the appropriate office of the USCIS.

10. Can I apply if I have been rejected or terminated in the past by USCIS for a L-1, E-2, B, or other visa?

Rejection in the past does not disqualify the applicant, unless the reasons related to immigration fraud or other major problems. It is most important that all criminal, medical, or U.S. immigration history problems be disclosed to the limited partnership and legal counsel in advance of application.

11. After petition approval, can members of the family interview in different countries?

Family members can interview in different countries. The country of origin or where the family has current ties is the standard interview site. Often one member of the family is located in another country, such as a student attending school in the  U.S. The student does not have to return to the country of origin and can adjust status in the United States at the district office of the USCIS.

12. Who receives the permanent residency ("green card")?

Husband, wife and any unmarried children under the age of 21. It is possible for adopted children to be included in the family. Upon approval you will receive a form evidencing approval and a travel document. You should also receive a temporary green card in the mail.

13. What issue caused the most problem when applying for an EB-5 visa

The most common problem area has been insufficient documentation of the source of funds. Many people try to disclose the least possible information only to have the file returned with a request for further information. It is better to provide too much information rather than too little information. In this era of terror alerts, and suspicions about money laundering, CIS case examiners require a well-documented source of funds.

14. How long must I remain in the United States each year?

The first requirement of any investor after they receive the visa at the United States overseas consulate office is to enter into the United States within 180 days of visa issuance from the consulate. The investor must then establish residency in the United States . Evidence of intent to reside includes opening bank accounts, obtaining a driver’s license or social security number, paying state and federal income taxes, renting or buying a home. The United States resident may work overseas if required based upon the nature of the business or profession. However, all permanent residents must remain in the US for more than 6 months each year, or they may be deemed to have abandoned their permanent residence status.

15. What is the difference between permanent residency and citizenship?

Once you obtain a green card, and become a legal permanent resident, you have most of the rights and obligations of U.S. citizens, except that you cannot vote and are not entitled to some public benefits. You are subject to the same tax filing requirements and entitled to the same tax rates and deductions as U.S. citizens.

Your "green card" is your most important travel and identification document.   When your green card arrives, please look at it carefully. You may need to extend it in 10 years. If you need to replace it before then because it is lost, stolen or dilapidated, you may file a form with the INS.

"Abandonment of residency" rules are an important restriction to which legal permanent residents are subject. Abandonment can occur when you are outside of the United States for more than six months without informing the INS of your plans in advance. The law provides that you are free to travel abroad, provided that your trip is "temporary." Generally, the INS views any absence from the United States for longer than six months as not temporary. Thus, it is advisable to obtain a "re-entry permit" before your departure.

One of the most important rights legal permanent residents possess is the right to obtain U.S. citizenship after five years. There are two ways to become a U.S. citizen. One is by being born in the U.S. or being born to a U.S. citizen. The other way is by naturalization. The first step in becoming a U.S. citizen through naturalization is to become a Legal Permanent Resident (LPR). Being an LPR for 5 years is one of the basic requirements for qualifying the naturalization. A second requirement is being physically present in the U.S. for 30 months during the 5 years prior to the naturalization application. Once becoming a U.S. citizen, an individual is entitled to benefits including the right to vote and hold public office.

16. Can my Green card be taken away from me? - How to Keep Your Green Card After You Get It!

Once you receive a green card, there are only two conditions required to keep it for life. First, you must not become removable or inadmissible. The most common way of doing this is to be convicted of a serious crime.

The second requirement is that you not abandon the United States as your permanent residence. As long as you are not planning to make your home somewhere else, then legally you are still a resident of the United States. Problems may arise, however, because the INS will try to judge your intention by the way you act.

"Abandonment of residency" rules are an important restriction to which legal permanent residents are subject. Abandonment can occur when you are outside of the United States for more than six months without informing the INS of your plans in advance. The law provides that you are free to travel abroad, provided that your trip is "temporary." Generally, the INS views any absence from the United States for longer than six months as not temporary. Thus, it is advisable to obtain a "re-entry permit" before your departure.

As a general rule, if you have a green card and leave the United States for more than one year, you may have a difficult time reentering the country. That is because the INS feels an absence of longer than one year indicates a possible abandonment of U.S. residence. Even if you do return before one year is up, you may run into trouble. To avoid a full-scale inspection, you should return within six months.

It is a common misconception that to keep your green card all you need to do is enter the United States at least once a year. The fact is that if you ever leave with the intention of making some other country your permanent home, you give up your U.S. residency when you go. Once again, the INS will look to your behavior for signals that your real place of residence is not the United States.

On the other hand, remaining outside the United States for more than one year does not mean you have automatically given up your green card. If your absence was intended from the start to be only temporary, you may still keep your permanent resident status. However, you may no longer use your green card as a U.S. entry document. You must either apply at a U.S. consulate for a special immigrant visa as a returning resident or you must get what is known as a reentry permit.

17. I have a Green Card and plan on traveling out of the US for a long time. Can I keep my Green Card?

Maybe. The primary rule surrounding Green Cards is that you lose it if you give up your US residence. So in theory, if you, for example, show up with a moving van on the border to Canada or Mexico, there is a chance that a BCBP officer who notices this can question you and possibly revoke your Green Card right away.

The more common criterion, though, is time based. There are three important time limits to know about.

• If you are absent for less than six months, you will rarely have a problem. It is to USCIS to prove that you abandoned your residency. Absent that, you are considered to never really have left.
• If you are absent for more than six months but less than a year, the burden of proof reverses. It becomes your job to prove that you are still a permanent resident. This is based on the concept that after six months, you have to be readmitted and have to prove that you are still admissible. As a side note, after an absence of more than six months, the various criteria for admissibility apply again, too. For instance, if you in the meantime had become inadmissible, say through an HIV infection, you might have a problem.
• If you are absent for more than a year, your Green Card will be considered almost automatically abandoned. Once that happened, there is usually no recourse. However, if by chance the immigration officer didn't ask you how long you have been out of the USA when you return, then you may be in luck and able to keep your Green Card after all. You should in this case not leave the USA for a very long time, and make it your bona fide residence again.
18. I need to travel out of the US for more than a year. Is there nothing I can do?

You can apply for a reentry permit (on form I-131) before you leave the US. You can depart before the reentry permit is approved.

With such a reentry permit, you can return to the US even after one year until the reentry permit's expiration date. Reentry permits are issued for two years. You cannot renew a reentry permit, but you can return to the US for a short time and apply for a new one. The second such reentry permit will be granted for two years ago, but subsequent ones may only be approved for one year at a time.

19. How long is a Green Card valid for?

There are several answers to this question.

If you received your Green Card through marriage, and have not been married for two years when you got your Green Card, you should have a conditional Green Card that is good for two years. Also, if you received your Green Card through investment (EB-5), you should have a conditional Green Card for two years.

You must apply for removal of the condition within 90 days before the two years are up. Once that is approved, you have a regular unconditional Green Card. If you apply either too early or too late, you have a problem and should consult with an attorney for advice.

If you do not have the condition removed, the Green Card will become invalid at the end of two years, and your permanent resident status will be terminated.

Unconditional Green Cards are good for ten years. This does not mean that after ten years, you stop being a legal permanent resident - only the card itself becomes invalid. You must apply for a new one using form I-90. Without a current Green Card, you cannot use the Green Card to travel out of the USA, and you also cannot use the Green Card as evidence that you are permitted to work.

20. Are any countries excluded from eligibility for the EB-5 Visa program?

Residents of only a few countries are excluded (e.g., Iran and Iraq). In most cases, however, if the applicant is able to leave the excluded country and has the necessary capital to qualify under the program, legal counsel will be able to help the applicant qualify for visa approval.

21. What is an "escrow" account, and when does the investor transfer the money to this account?

An Escrow Bank Account is a legal, interest-bearing account established in a bank to hold the initial deposit in trust until the completion of visa processing. This type of account is commonly used in the sales of real estate, businesses and personal property. The Investment Visa Program has established an Escrow Bank Account for the purpose of safely holding an investor's funds until such time as the investors petiton has been approved by the USCIS in the United States. Escrow accounts have been established at a leading bank in the United States. Under the agreements entered into with the servicing affiliate, the investor's money is not authorized to be released from the Escrow Bank Account by the bank until the visa I-526 Petition has been approved. This process was created to protect the investor.

22. How does the bank "escrow" account protect me against the risk of losing my money?

The initial cash deposit from the investor is placed in a legal, interest-bearing Escrow Bank Account. When an Escrow Bank Account is established, the funds continue to belong to the investor; however, they arc committed to be placed into the investment upon petition approval. The attorney or bank has an agreement with the investor that requires the funds to be released from the account only when the petition is approved by the USCIS.

23. Can I apply if I am currently out-of-status (i.e., I live in the United States, but do not have a current visa)?

Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. They must first return to their country of origin and apply through the United States Embassy there. Examples of "out-of-status" individuals are students, tourists, E-2 treaty investors who no longer have valid visas because they remained in the United States after their visas expired or were revoked.

24. What is a Designated Regional Center?

A "Regional Center:"

• Is an entity, organization or agency that has been approved as such by the Service;
• Focuses on a specific geographic area within the United States; and ,
• Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.