The Immigrant Investor EB5 Program - Practical Guide To Real Estate Professionals

Based on statistics provided by the U.S. Citizenship and Immigration Services (USCIS), over 1,200 families had immigrated to the U.S. through the "EB5" program in 2009, and the number is anticipated to increase substantially in 2010. The majority of these investor immigrants are from China, South Korea, and other Asian countries. For real estate professionals who work regularly with Asian clients, these investor immigrants present great opportunities for business and client development.

What exactly is the "EB5" program?

The Immigration and Nationality Act "INA" authorizes the issuance of 10,000 immigrant visas ("green card") per year for immigrant investors who can create jobs in the U.S. It gets the "EB5" designation because the section of the law that creates this category is found in section 203(b)(5) of the INA. In this article, we would generally refer it as the EB5 program.

The EB5 program has two key requirements: capital investment and job creation. The requisite amount of investment is $1,000,000. The investment is most common in the form of cash, but inventory, equipment, and other tangible items are permitted as well. Investment in areas designated as "Targeted Employment Area, or TEA", the requisite investment amount is reduced to $500,000. A TEA generally refers to an area that has 150% of unemployment rate than the national average, or a rural area with less than 20,000 people. For job creation, the requisite number of full time jobs to be created per investor is ten.

Four key steps of the EB5 program

Step 1 – Submit the I-526 petition to USCIS. The investor uses the I-526 petition to demonstrate to USCIS' satisfaction that he/she has a valid proposal for job creation and has taken concrete steps in transferring the funds to the U.S. for investment. The investor must also prove the legal source of his/her money as well.

Step 2 – After the I-526 is approved, the investor either goes through the "I-485 Adjustment of Status" process if they are already in the U.S. in a valid nonimmigrant status, or through the "U.S. Consular Processing" if they live outside of the U.S.

Step 3 – Receipt of "conditional" permanent residence for two years, following the approval of the I-485 application or a successful immigrant interview at a U.S. consulate.

Step 4 – Within and before 90 days of the expiration date of the investor's conditional permanent residence, he/she must submit an application to remove the condition of their permanent residence by submitting Form I-829 to USCIS. The purpose of the I-829 application is to demonstrate to USCIS that the full amount of the investment has been made, and that ten new jobs have been created according to the plan presented in the I-526 petition. The approval of the I-829 petition is the key to the immigrant investor. If the I-829 petition is approved, the immigrant investor will receive his/her "permanent" permanent residence in the U.S. and is then free to...