EB-5

Each fiscal year (October 1 - September 29), USCIS allocates 10,000 immigrant visas for the EB-5 Preference Category.  Out of the 10,000 visas, 3,000 visas are specifically  reserved for foreign investors who invest in regional centers.

An escrow account is a special account opened for the benefit of investors or clients.  This type of account is commonly used in the sales of real estate, business and personal property for safekeeping.  The funds in an escrow account belong to investors or clients.  The entity that opened an escrow account may not use the deposited  funds in such account  for its own purposes.  In some instances, specific conditions must be met for the funds to be released from the escrow account.

The United States Congress created the EB-5 Green Card program to create jobs to benefit the economy through foreign investment and to allow eligible foreign investors to become lawful permanent residents of the United States.

Each investment of $500,000 (or $1 million if outside a Targeted Employment Area) and investor must create 10 direct or indirect permanent jobs for U.S. workers.

The EB-5 Green Card program is open to everyone, including professionals, executives, business persons, those who are interested in having their children attend colleges and universities in the United States, and those who may wish to retire in the United States. Under the EB-5 Green Card program, foreign investors and their families will be permitted to work in the United States.

No, you do not need to have any previous business experience to obtain a Green Card. The only requirement for the investor is that he or she is an accredited investor who has the required net worth and capital. (see question on accredited investor)

No, there are no minimum education requirements to obtain a Green Card.

No, it is not necessary for you to speak English to obtain a Green Card, although it is recommended to learn English for the immigration interview.

Yes, you must have the proper vaccinations and declared free of any communicable diseases.

No, you do not need a sponsor to obtain a Green Card.

Rejection in the past does not disqualify the applicant, unless the reasons are related to immigration fraud or other major problems. It is important to disclose to your attorney any criminal, medical or U.S. immigration history problems before you apply for an EB-5 visa.

The I-526 Petition is the first step for foreign investors seeking lawful permanent residence through the EB-5 regional center program. You will need to provide supporting evidence with the I-526 Petition. NYIF will assist you and your attorney in preparing your I-526 Petition.

Currently, USCIS's average processing time for I-526 is about 16 months.  You can check the current processing times at USCIS's website

A foreign investor must submit a number of documents for the I-526 Petition. These include: passports, employment and business documents, family certificates, police certificates, court/prison records, military records, photographs, financial statements, and all documents proving that the funds came from a lawful source such as bank statements, stock certificates, loan or mortgage documents, etc.

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

The most common problem has been insufficient documentation of the source of investors’ funds. Many potential investors attempt to disclose the least amount of information, which typically results in having the file returned with a request for further information. Applicants are strongly recommended to provide as much information as possible. Professional assistance from a certified public accountant or tax attorney is also recommended.

Considering that the law and the applicable regulations are not clear, it is not easy to answer this question.

Moreover, USCIS does not seem to offer much guidance on this topic.

I believe that USCIS must deny Forms I-526, Immigrant Petition by Alien Entrepreneur, filed by a minor UNLESS certain conditions are met.

I see two (2) major issues involving minor EB-5 investors:

1. Investment at risk

Neither the Immigration and Nationality Act (“INA”) nor the Regulations address this question of minor EB-5 investors directly. However, the INA specifically states that the EB-5 investment has to be “at risk.” In most jurisdictions, the minimum age for signing binding contracts is 18. Specifically, in the state of New York, “[a] contract made on or after September first, nineteen hundred seventy-four by a person after he has attained the age of eighteen years may not be disaffirmed by him on the ground of infancy.” See NY General Obligation Law Sec. 3-101. If a person under 18 enters into a contract, such contract may be voidable. Therefore, from USCIS’s point of view, if a contact can be voided at any time, the underlying investment cannot be an “investment at risk.”

As a result, if a minor wants to be an EB-5 investor, s/he has to enter in a binding contract that cannot be voided on a whim. Considering that minors, generally, are unable to enter into legally binding contracts or that minors enter into contracts that, generally, can be voided by them, such investments cannot be “investments at risk” and USCIS must deny the underlying I-526’s as a matter of law.

HOWEVER, if one of the minor's parents co-signs the relevant contacts with the minor, such contracts will be legally binding on the minor, which will satisfy the investment at risk requirement under the Immigration and Nationality Act.

2. Engaging in a new commercial enterprise -- active involvement

In order to meet the “engage in a new commercial enterprise“ requirement, the new commercial enterprise must be a limited or general partnership. (In the context of a minor’s eligibility to be an EB-5 investor only. For adult EB-5 investors, the structure of a new commercial enterprise is irrelevant.)

For purposes of a minor’s eligibility to be an EB-5 investor, the structure of the new commercial enterprise is very important. Under the INA, an EB-5 investor has to “engage in a new commercial enterprise”. See INA Sec 203(b)(5). Hence, in order to file a successful I-526, the EB-5 investor has to show that s/he will be “engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial control or through policy formulation, as opposed to maintaining a purely passive role in regard to the investment.” See 8 CFR Sec. 204.6(j)(5).

Investors under 18 may need a custodian to invest their funds. The issue with having a custodian is that if the custodian has to manage the minor’s funds, can the minor really be “engaged in the management of the new commercial enterprise” as the regulations require it?

Therefore, if the new commercial enterprise is NOT a partnership, either limited or general, because minor EB-5 investors are unlikely to legally "engage in a new commercial enterprise," USCIS should deny the underlying I-526 petitions as a matter of law.

HOWEVER, "if the petitioner is a limited partner and the limited partnership agreement provides the petitioner with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the petitioner will be considered sufficiently engaged in the management of the new commercial enterprise." 8 CFR Sec. 204.6(j)(5)(iii). Therefore, if minors are general or limited partners in a partnership, USCIS should find that they “engage in a new commercial enterprise".

Yes, the investor must pay the entire $500,000 before filing the I-526 petition to the USCIS.

There are 3,000 green cards that are reserved each year for foreign investors who invest in regional centers.

Yes, if your I-526 Petition was submitted in good faith and your I-526 Petition is rejected, the full $500,000 investment will be returned to the account from which the funds originated.

Please go to the U.S. Citizenship and Immigration Services website for link to immigrant investment visa information.

The foreign investor, spouse and any unmarried children under the age of 21 at the time of the application can receive temporary Green Cards after the I-526 application is approved by the USCIS. Your temporary Green Card is also known as a Conditional Green Card. (see question on Conditional Green Card)

Yes, your children can continue to study in the United States and can adjust status in the United States.

A conditional green card is a temporary green card that is valid for two years. The foreign investor, his/her spouse and any unmarried children under the age of 21 can receive conditional green cards after the USCIS (United States Citizenship and Immigration Services) approves the investor's I-526 Petition.

After one year and 9 months, the investor will have a 3 month window to file the I-829 application, which verifies that all of the funds have been invested and the required 10 jobs have been directly or indirectly created. After the I-829 application is approved by the USCIS, you will be issued a Permanent Green Card.

Once you receive a green card, there are only two conditions to keep your green card. The first requirement is that you must not become removable or inadmissible, such as being convicted of a serious crime

The second requirement is that you do not abandon the United States as your permanent residence. As a general rule, if you have a green card and leave the United States for more than a year, you may have a difficult time re-entering the United States. The USCIS considers an absence of longer than one year possible abandonment of your U.S. residence. You should return to the United States within six months to avoid a full-scale inspection.

Your conditional Green Card expires two years from the date it is issued. The foreign investor will have to submit his/her I-829 Petition within the 90-day period immediately preceding  the expiration date of the conditional Green Card.

You and your family will be eligible for U.S. Citizenship after five years of receiving your conditional Green Card.