The EB-5 petition/application process, which is largely administered by USCIS, requires various steps before an individual can obtain his/her full (i.e., unconditional) lawful permanent residence status. Individuals who are admitted to the United States on the basis of EB-5 visas are granted a conditional resident status. After approximately two years they can apply to remove the conditionality if they have met the visa requirements (i.e., invested and sustained the required investment and created the required jobs).
There are four general steps that investors must complete to become U.S. permanent residents through the EB-5 visa program
Step 1: Locating an EB-5 Project
Choosing the right EB-5 project is particularly important if the EB-5 investor want to be successful.
The first and important step is to find a project to invest in and this generally takes the form of either a new commercial enterprises for individual investors or Regional Center projects. New commercial enterprises are lawful for-profit entities that can take one of many different business structures. Such business structures include corporations, limited or general partnerships, sole proprietorships, business trusts, or other privately or publicly owned business structures. All new commercial enterprises must have been established after November 29, 1990.
However, older commercial enterprises may qualify if the investment leads to a 40-percent increase in the number of employees or net worth, or if an older business is restructured to such a degree that a new commercial enterprise results. In addition to individual business enterprises, EB-5 visa applicants can also invest in EB-5 Regional Centers. Regional centers administer EB-5 projects. It may be more advantageous for an investor to invest in a regional center-run project because the investor will not have to independently set up the EB-5 project
Step 2: Capital Investment and I-526 Petition
For a foreign national investor, the first step of the process consists of filing USCIS Form I-526, Immigrant Petition by Alien Entrepreneur. At this point, a foreign national has to prove that he/she meets the requirements for EB-5 classification, including that the capital being invested came from a legitimate source, and that he/she has presented a valid business plan or showed that the investment will go to a USCIS-certified regional center.
Once the I-526 is approved, the foreign national would need to obtain a visa from the Department of State (DOS) to enter the United States if he/she is not currently in the country, or adjust status with USCIS if he/she is. Individuals not in the United States file Form DS-260 Application for Immigrant Visa and Alien Registration with DOS and individuals within the United
States file Form I-485 Application to Register Permanent Residence or Adjust Status with USCIS. At this stage, DOS and USCIS also check that the foreign national is not inadmissible under the grounds of inadmissibility of the Immigration and Nationality Act (INA). Those who adjust status within the United States receive their conditional residence once the I-485 is approved. Those who receive a visa from DOS receive their conditional residence once they are admitted into the United States
Step 3: Two Year Conditional Permanent Residency
An investor can petition to remove the conditional status after approximately two years by filing Form I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status. 45 If the I-829 is approved, the conditionality on the residency of the immigrant investor and his/her derivative family members is removed. If the investor did not meet the requirements to adjust to full LPR status, the investor (and his/her family members who immigrated together) must depart from the United States or adjust to another immigration status. USCIS will issue a notice-to appear (NTA) to foreign nationals who do not apply to have the conditional status removed or who are denied adjustment to full LPR status.
Step 4: Unconditional Permanent Residency and the I-829 Petition
The last step in the EB-5 visa process is to become unconditional permanent residents by removing their two year conditional status. In order to do this, an I-829 petition 90 days prior to the anniversary of the date that the applicant first received their conditional residency. This application proves that the investor has met all requirements of the EB-5 visa program and the government usually issues a permanent green card around 6 months after the I-829 has been submitted.