Immigrants hoping to get a green card through EB-5 visa program must first choose a project and make the required capital investment. Then they must file the Form I-526, which is the Immigration Petition for Alien Entrepreneurs, along with accompanying evidence in support of the EB-5 program requirements with United States Citizenship and Immigration Services (USCIS). Once filed, the USCIS will then evaluate and adjudicate the I-526 petition based on the following criteria:Investment In A New Commercial Enterprise

• The EB-5 investor must prove that his or her capital investment was in a New Commercial Enterprise (NCE). A new commercial enterprise (NCE) is any for-profit activity that was established after November 29, 1990.
• If it was established before November 29, 1990, certain conditions must be met.
• This new commercial enterprise must have been established for the ongoing conduct of lawful for-profit business and must fulfill the job creation requirement.
• These new commercial enterprise types may include:
  • general or limited partnerships
  • joint ventures
  • sole proprietorships
  • holding companies
  • business trusts
  • corporations
  • and other publically or privately owned entities.
• Any non commercial activities, such as owning a personal residence, is not included.
• If an EB-5 applicant invests in a regional center, then the new commercial enterprise is the fund the immigrant invests his capital. This fund is typically a Limited Liability Company (LLC) or a Limited Partnership (LP).

Capital Investment "Funds" Requirements

• Along with the EB-5 immigrant visa petition, evidence must be provided that show the immigrant has invested the required capital in the commercial enterprise.
• How much capital is required is dependent on the type of project.
  • If the project is location in a Targeted Unemployment Area (TEA), meaning a rural area or a high-unemployment area, the required capital is $500,000.
  • If the project is not, then $1 million is the minimum that must be invested.

USCIS requires that the funds be committed to the NCE and that they be "at risk" to create jobs for qualified U.S. workers.

Requirements for The Lawful Source of Capital

• USCIS requires clear evidence that the source of the funds for the project are earned lawfully and used for the new commercial enterprise.
• These funds can come from:
  • salaries
  • earnings
  • investments
  • business distributions
  • sale or mortgage of assets,
  • personal property owned by the immigrant invest
  • inheritance
  • or gifts from third parties.
• The EB-5 Investor must be able to provide documents to trace all the funds to lawful sources.
• The more credible the documents, the higher chance they will be approved.

Involvement Requirements for New Commercial Enterprises

• The investor cannot be a passive participant in the new commercial enterprise he or she funds.
  • They are expected to participate either through the management oversight, the day-to-day processes, or in the formulation of the enterprise's business policy.
• If the EB-5 investor uses a regional center, then they don't have to be active in the day to day management of the enterprise.
  • They can take on a more passive role.
  • They can have a limited partnership and take on a more advisory role.

Requirements for Job Creation

• Each EB-5 investor has two years after they receive their conditional permanent residency to create at least 10 full-time (at least 35 hours per week) permanent positions for qualified U.S. workers.
• If after the 2 years and at the time of the I-526 petition, the jobs have not yet been created, then the investor must provide an extensive business plan laying out the projected positions that will be created as well as a timeline for when it will happen.
• These 10 job positions cannot be filled by the EB-5 investor or his or her family.
• If the EB-5 investor invests in a regional center, the petition must show that the revenue generated from the regional center will create 10 full-time positions. These are 10 direct, indirect or induced jobs.
• An detailed economic impact analysis report must be included in the petition to show evidence that 10 indirect jobs will be created.

The Results

• If these requirements are met, the I-526 petition should be approved by the USCIS in about 12-14 months after initial filing.

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