Who May Qualify:
To qualify for immigration investor status, the investor must meet
each of the following requirements:
- The investor must invest at least $1 million in the
enterprise, or at least $500,000 if the investment is made in a
- The investor must take a form of a contribution of capital
that has been placed at risk for the purpose of generating a
return on the capital;
- The capital invested must have been obtained through lawful
- The enterprise must benefit the US economy and must create
full-time employment for not less than 10 US workers;
- The investment must be made in a "new commercial enterprise"
or a "troubled business;"
- The investor must be engaged in the management of the
enterprise, either though day-to-day managerial control or though
The investor or someone on his/her behalf can file the petition
with the the Service Center that has jurisdiction over such
petition; The application typically should include the following
- Form I-526 for the petitioner and family members;
- Organizational documents and agreements, such as articles of
incorporation or partnership agreement;
- Depending on the basis for qualifying, evidence that the
required amount of capital has been invested and put at risk and, if
required, that the amount has increased net worth or employment by
the required percentage. Evidence may include stock purchase
agreements, investment agreements, financial and payroll records,
bank statements, evidence of goods transferred and/or purchased,
proof of loans made, and the amounts and means of security.
- If the amount of investment is premised on its creating jobs in
a targeted area, evidence that the enterprise will be doing business
mainly in (1) a rural area, that is, at a site not located within a
standard metropolitan statistical area or within a town having a
population as high as 20,000; or (2) a high-unemployment area, as
prescribed at , with evidence of the unemployment there and
nationally, both obtainable from the U.S. Department of Labor's
Bureau of Labor Statistics
- A detailed and comprehensive business plan that shows
convincingly and realistically how the business will succeed and how
the investment will create the jobs, particularly where the investor
is still in the process of investing and the jobs have not yet been
created, with such demographic charts or consulting reports as may
- Evidence to show that jobs have been created, payroll and I-9 records.
Removal of the Condition
Within ninety (90) days before the end of the two-year period after
the investor has obtained lawful permanent residence from the
investor petition, he or she must file a petition on Form I-829 to
remove the condition on his or her status. The petitioner may include a
spouse and any children in the petition.
The petitioner need not be physically present in the United
States to file.
A properly filed petition automatically extends the conditional
residence indefinitely until the USCIS decides the petition.
Filing documentation may include:
- Form I-829 at the
service center where the original petition was filed.
- Copies of the green cards.
- Evidence that the investor invested or was actively in
the process of investing the requisite amount and otherwise
substantially and in good faith met the other requirements of the
regulations over the two-year conditional period, including the
creation of ten jobs. The documentation may include, but is not
limited to, bank statements, invoices, payroll records, I-9 records,
contracts, licenses, and tax returns.
Q: Can I join others to make an EB-5
A: Yes. Though the BCIS appears to preclude corporate or other non-individual investors
from this category, two or more individuals may join to
make an EB-5 investment. A single new commercial enterprise may be
used for investor/employment-creation classification by more than
one investor, provided that: (1) each petitioning investor has
invested or is actively in the process of investing the required
amount; and (2) each investment results in the creation of at least
10 full-time positions for qualifying employees.
However, the Service requires the petitioner to show that every investor in the
partnership identify the source of their funds and prove that they
were derived by lawful means. This evidentiary hurdle makes it
almost impossible for the members in a partnership to qualify for
Q: What is "Targeted Area" that
requires only $500,000 investment?
A: A targeted area is either a rural
area or an area whose unemployment rate is at least 150 percent of
the national average.
Q: What does "Capital" mean?
A: Capital is generally defined as
cash and cash equivalents, equipment, inventory, and other tangible
Capital does not include loans by the petitioner or other
parties. Indebtedness secured by assets owned by the investor may be
considered capital, provided the investor is personally and
primarily liable for the debts and the assets of the enterprise upon
which the petition is based are not used to secure any of the
A contribution of capital in exchange for a note, bond,
convertible debt, obligation, or any other debt arrangement between
the foreign entrepreneur and the new commercial enterprise does not
constitute a contribution of capital and will not constitute an
Q: How to prove the legitimacy of
the capital invested?
A: The Service requires
documentation to show that the capital invested is indeed the
applicant's and was legally obtained and not ''drug money''.
One or more of the following types of
documentation may be used to establish that capital used in the new enterprise
was acquired by legitimate means:
- Foreign business registration
- Personal and business tax returns, or other tax returns
of any kind filed anywhere in the world within the previous five
- Documents identifying any other source of money; or
- Certified copies of all pending governmental civil or criminal
actions and proceedings, or any private civil actions involving
money judgments against the investor within the past 15 years.
- Document to show, if applicable, that loans to a petitioner
(for example, from a parent) have been amassed legally.
Q: What are the rules on the "Ten Full-time Positions"
job creation requirement?
A: The jobs created must be full-time
(at least 35 hours a week). Part-time positions or independent
contractors do not count. Job-sharing is permitted only for the
If the petitioner establishes an investment in a troubled
business, the creation of 10 new jobs is not required, instead, the
business is required to maintain the number of existing employees
during the conditional status period.
As an alternative to evidence that the ten employees have already
been hired, the investor can submit a ''comprehensive'' business
plan showing that the nature and size of the enterprise will require
at least ten employees within two years, and when they will be
Q: What are the typical forms of the
A: The enterprise may be established
through virtually any form of entity, including special cases
such as a limited partnership, reorganizing or restructuring an
existing business, and investments in ''troubled'' businesses.
Q: What roles must the petitioner
play in the commercial enterprise?
A: The petition must be engaged in a management role by day-to-day
managerial control or as a policy maker such as a corporation officer or board
member, or a limited partner.