What is a United States EB-5 Visa Process?
We have been receiving number of queries these days regarding the complete EB-5 process for obtaining Permanent Residency through Investment in a Regional Centre Program.
We would try to explain the process in simple manner through easy seven step approach though lot of complexities are dependent upon personal circumstances and can not be catered while providing a general information.
The investor makes a Due Diligence study of prospective projects offered by various Regional Centres in United States.
What is a Regional Centre? Is it a Government Organisation?
Regional Centres are private entities registered under the Government Program and NO Regional Centres are not Government Organisation.
However, there may be Public Private Partnership Projects in which Government or county is supporting the project that could be through various subsidies or grants or providing infrastructure. Each project is different and has to be reviewed independently.
We at Cross Border Legal encourage EB-5 applicants to make a visit to all the shortlisted projects themselves and not to rely upon hearsay information given by any person.
After you make a Preliminary Visit, an applicant should review the Project Structure (whether Debt, Equity etc.) and also go through the valuation reports and project documents carefully.
We understand that as a layman, it is a tedious job and sometimes confuse the applicant due to the nature of legal language used in these documents.
Therefore, we encourage the applicants to get the project documents reviewed by an attorney and an accountant to get the overview of risks and benefits attached to a shortlisted projects.
After finalising the Project offered by a Regional Centre, next step is to transfer funds to Escrow Account maintained by the Regional Centre or by an attorney.
The qualifying investment in Targeted Employment Area (TEA) as on date is $500,000 and non TEA is $1,000,000. Depending upon the project location that is finalised, you need to transfer these funds to the Escrow Account maintained by your Regional Centre or by an attorney.
The Regional Centres also charge an administrative fee to administer a project. This fee generally range from $40,000 to $70,000. The fee is non refundable and is also part of remittance while making an investment.
Remitting Funds from India
Reserve Bank of India through Master Circulars issued from time to time permits an individual or a corporation to remit Foreign Exchange as per FEMA Act and Rules framed thereunder through Automatic Route or Permission Route. These amounts change from time to time and is applicable generally for one financial year.
You should be aware of these limits and work with a professional to handle your remittences to avoid prosecution at a later date. There are various compliances to be made while remitting funds from India and may also have to be reported to Reserve Bank from time to time.
We at Cross Border Legal make your compliance easy by making your remittences as per current Laws and Circulars issued by Reserve Bank of India.
After the remittence is made, the funds get parked in an Escrow account maintained by either Regional Centre or an attorney. The Regional Centre on the receipt of funds, generally releases I-526 packet to you or your attorney, if finalised.
An applicant needs to then finalise an attorney who shall be preparing, drafting and filing I-526 petition and represent the applicant through complete process. We strongly suggest to retain an attorney either before or during finalising the project as it involves constant discussion with your attorney while engaging in due diligence for a project including location, job creation, validity of the Regional Centre etc.
An attorney then starts preparing your I-526 petition on behalf of the Primary Applicant and dependent applicants that needs to be included in the petition.
An I-526 petition has primarily two parts
- Business Plan
Business Plan outlines the details of the project including but not limited to project timelines, business projections, investment from EB-5 funds and also through third party sources, projected number of job to be created (whether direct or indirect), income projections for next couple of years etc. The Plan also include your Participation Certificate as a Partner or Equity holder in the project.
- Source of Funds
The Source of funds summarises your source of earning $500,000 or $1,000,000 through a legitimate source. Your source of funds is a primary decision maker in the EB-5 processing as USCIS needs the detailed description of the funds that have been earned by an applicant. Many times there are gift deeds or other sale of assets involved while liquidating the investments by an applicant.
There needs to be a professional drafting of source of funds by an applicant to avoid Request For Further Evidence (RFEs) or rejection.
We at Cross Border Legal have an experience to work on the matters of Source of Funds Documentation which makes the task of an attorney easy to compile the documentation and file I-526 petitions in a timely manner.
An attorney after receiving both the above mentioned information files I-526 petition with USCIS for primary applicant and dependent applicants. USCIS issues a Receipt number which can be used to further communicate or to check status of the petition with USCIS.
The time to adjudicate on I-526 petition varies and is currently taking about 18-20 months for processing. You can check our United States updates on this website for up to date information on USCIS I-526 adjudication time.
USICIS post adjudication of I-526 petition shall either issue Request for Further Evidence (RFE), deny the petition or approve the petition.
Once the petition is approved, USCIS sends the complete file to National Visa Centre (NVC) for further processing of the applicant visa and dependent visas.
An Applicant has two choices. If the applicant is in the United States, he can choose to file Adjustment of Status application OR if the applicant is in his home country, he can choose to proceed with Consular Processing (CP).
NVC then issues the fee bills to be paid by the applicant and its dependents included in the application. The processing however, could be time consuming and an applicant may not hear from NVC till the time processing date for the applicant is not current.
If the processing date is current and fee bills are issued, an applicant is required to submit copy of Passport(s), Birth certificate(s), police certificate(s), medical records and some other documents as part of Civil Documentation to NVC for processing the application and set up an interview date for the applicant in the foreign consulate depending upon applicant’s location.
Before the interview date, an applicant is required to undergo Medical tests as per the advise through approved Medical Centres by US department.
The Applicant has to go for mandatory interview to US Consulate on the designated date and time of the interview.
A consular will check all the original documents submitted to NVC while submission of Visa application by the applicant along with the Medical Reports as issued by the approved Medical Centre. An applicant should also be ready with the queries relating to his investments with the Business Project and latest updates on the same as communicated to him from time to time by the Regional Centre.
There may be some administrative enquiries made to the applicant while interview and if the applicant is unable to answer the queries, the interview can be rescheduled after an applicant is able to provide sufficient evidence.
The Visa Consular, if satisfied shall issue a Visa to enter United States to the applicant. An applicant is also given a sealed envelope to be presented at the Immigration Check Point in United States. The visa grants an applicant and its dependents right to work in united States.
An applicant is expected to move to United States within six months of the issuance of visa.
Once applicant reaches United States, an immigration officer should be presented with the sealed envelope along with all the documents necessary to satisfy the officer about the genuiness of the case presented to him.
An applicant is then stamped as a conditional permanent resident and issued a Temporary Green Card. A Social Security Number is also issued and sent to the designated address of the applicant in few days after making an entry to United States.
An applicant after making entry to United States need to make a petition on I-829 for the removal of conditions within 18-24 months of entry to United States.
USCIS reviews the petition and primarily review the maintainance of investment by the applicant in the project along with Business report of the project. The applicant also needs to satisfy that ten new jobs (direct or indirect in case of Regional Centre investment) have been created and maintained during the time of the investment in the project.
Direct vs Indirect Jobs
The condition of EB-5 visa is to create ten new jobs. The common query is whether these jobs need to be Direct or these can be Indirect jobs as well?
The simple answer is if your are making an investment in your own Business ie. Direct Investment, you need to evidence that ten new full time jobs have been created and maintained before filing of I-829 petition. Full time jobs are defined as 35 hours a week job to a Permanent Resident or Citizen of United States. Part time jobs or hourly jobs are not considered as full time jobs.
On the other hand, if an applicant is moving forward with Regional Centre Program, he can evidence Direct as well as Indirect Jobs as part of I-829 visa application. Indirect jobs could be construction linked jobs or ancillary jobs created as part of the project.
We at Cross Border Legal can provide you with the review of the job creation requirements before choosing the project and making an investment.
Once your I-829 is approved, the conditions associated with your Temporary Green Card are removed and you attain a status of Permanent Resident in United States.
The date of Citizenship is calculated from the date of entry in United States on Temporary Green Card. There are certain physical presence requirements to be satisfied before an applicant applies for the Citizenship.
To know more about the program or if you need any clarification about the US EB-5 program, feel free to contact us and we shall be glad to assist you in the matter.