A Lawful Permanent Resident (commonly known as a “green card” holder) is a person who has an immigrant visa that allows them to work and live anywhere in the United States. Being a green card holder is also a required step in becoming a U.S. citizen and obtaining a U.S. passport.
One way to obtain a U.S. green card is through an EB5 green card petition where people are can qualify by investing capital in a business that creates at least 10 full-time jobs for U.S. workers (i.e., U.S. citizens, green card holders, other authorized immigrants) and the person manages the day-to-day operations or establishes the policies for the business, or by investing in a Regional Center that satisfies the EB5 requirements. The current minimum amount of capital required to be invested under the EB5 green card petition is $1.8 million ($1,800,000) USD or $900k ($900,000) USD for targeted employment areas (TEAs). The minimum amount of capital will continue to increase on Oct. 1, 2024.
Unlike most employment-based green cards which require a U.S. sponsoring employer or a lengthy PERM labor certification due to it being designed for people seeking employment (i.e., looking for a job), the EB5 green card is designed for business investors who are instead required to create jobs for U.S. workers and they must prove their business have indeed successfully employed at least 10 full-time qualified U.S. workers before being able to change into their EB5 green card status.
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There are two main subcategories under the EB5 visa:
- Direct Investment: Persons who invests the legally required amount of capital in a new commercial enterprise that will directly create at least 10 full-time jobs for U.S. workers (or green card holders and other authorized immigrants).
- Regional Center Program: Persons who invests the legally required amount of capital in a regional center that will directly or indirectly create at least 10 full-time jobs for U.S. workers (or green card holders and other authorized immigrants).
A person can qualify for an EB5 green card no matter where they are currently residing in the world. For the EB5 green card petition, there is no prerequisite as to the person being in some type of nonimmigrant visa status (such as an H1B visa) or having an educational degree from a U.S. school. A person who does not have a U.S. degree and has never been to the United States can still qualify for an EB5 green card.
The EB5 visas are green cards for persons who invest the required amount of capital in a new commercial enterprise or regional center that will create at least 10 full-time jobs for U.S. workers (or green card holders and other authorized immigrants). The current minimum amount of capital required to be invested is $1.8 million ($1,800,000) USD or $900k ($900,000) USD for targeted employment areas (TEAs). The targeted employment areas (TEAs) can be either a rural area or an area with a high unemployment rate that is at least 150% of the national average unemployment rate.
Direct Investment or Regional Center
A regional center under the EB5 green card petition is a public or private economic unit that attracts capital from foreign investors to promote economic development and job creation in the United States. The regional centers raise their pool of capital from multiple passive investors (with no daily management responsibilities) to fund large projects. Regional centers are usually used for large real estate developments, such as development of resorts or commercial rental properties.
A direct investment under the EB5 green card petition is a new commercial enterprise that the foreign investor puts capital into and actively manages or directs its daily business operations. Direct investments are more often seen in relatively smaller businesses (when compared to regional centers) such as in restaurants.
People who file the EB5 green card petition under direct investments must be more active in the daily management and direction of the business operation in the United States whereas people who file under regional centers would have a more passive role in the business operations since they usually serve as a limited partner or a policy maker in an LLC for the investment.
Most EB5 green card petitions are filed under the regional center due to the convenience for investors (since they do not need to actively manage the business operation in the United States), however, the regional center program is a temporary EB5 visa program with a sunset date that requires the U.S. government to continuously extend it.
The process for EB5 green cards requires (1) filing a green card petition (Form I-526 petition) for a 2-year conditional green card with the U.S. Citizenship and Immigration Services (“USCIS”), (2) filing a removal of conditions petition (Form I-829 petition) with the USCIS to change the 2-year conditional green card into a regular green card, and (3) change of status applications by either filing a Form I-485 application with the USCIS or a DS-260 application with the Department of State (“DOS”).
Usually, after the approval of the EB5 green card petition (Form I-526 petition: Immigrant Petition by Alien Entrepreneur), a person who is already residing in the United States will choose to file a Form I-485 application to adjust their current nonimmigrant visa status to a 2-year conditional lawful permanent resident (green card) visa status without leaving the United States. The Form I-485 application (“Application to Register Permanent Residence or Adjust Status”) is only available to people who are already in the United States and have maintained their lawful visa status throughout their stay.
A person already residing in the United States also can choose to file a DS-260 application to change into a 2-year conditional lawful permanent resident (green card) visa status by going through consular processing at a U.S. embassy or consulate abroad (usually in the person’s home country). In cases where a person is ineligible for adjusting status in the United States or resides outside the United States, consular processing must be done. Consular processing usually takes place at the U.S. consulate or embassy in the person’s home country, however, under certain circumstances the person can do the consular processing in another country as a “Third Country National.”
An interview for the EB5 green card will be done at a local USCIS office for the adjustment of status or at a U.S. consulate or embassy abroad for consular processing. For a person who is already in the United States adjusting their visa status, their 2-year conditional EB5 green card will be issued upon interview approval.
For a person who is outside the United States doing consular processing, the person must physically enter the United States after the interview approval to obtain their EB5 2-year conditional green card. In other words, a person who is doing consular processing to obtain their EB5 2-year conditional green card must be admitted by the CBP (“Customs and Border Protection”) officer at the U.S. border (usually done in the secondary inspection room at the airport) for their 2-year conditional green card to be issued.
Within 90 days before the 2-year conditional green card expires, the person can remove the 2-year conditions on their green card and change it into a regular green card by filing a removal of conditions petition (Form I-829) with the USCIS and satisfying all requirements of the EB5 green card petition (such as the sustained investment of the required capital and the 10 full-time job creation requirements). Some investors may be asked for an interview at their removal of conditions petition (Form I-829) stage. The USCIS’s approval of the removal of conditions petition (Form I-829: Petition by Investor to Remove Conditions on Permanent Resident Status) is the last step for the investor to obtain their EB5 green card.
The main difference between an EB5 green card and a temporary work visa (such as an H1B visa, L1 visa, O1 visa, P1 visa, TN visa, E3 visa) or a business visa (such as an E1 visa, E2 visa, B1 visa) is that an EB5 green card holder can pursue other new investments freely or later choose to be employed and change their jobs freely among different employers or industries without needing additional filings or approvals from the U.S. government. Also, unlike work visas or temporary business visas, EB5 green cards are permanent so there is no set maximum time on how long an EB5 green card holder can stay in the United States.
For example, a person with an EB5 green card does not need to file anything new with the USCIS when they pursue a new business investment while a person with an E2 visa would most likely need to file another EB2 visa petition with the USCIS because the E2 visa is tied to the specific U.S. business in the original E2 visa petition.
The EB5 visa petition is one of the many ways to obtain an employment-based green card. The person under the EB5 green card petition must invest the legally required amount of capital into a new commercial enterprise or regional center that will create at least 10 full-time jobs for U.S. workers (or green card holders and other authorized immigrants). There are two stages in the EB5 green card petition where the investor would need to first file for a 2-year conditional green card and then file to remove the conditions after 2 years to change into a regular green card.
There are no other employment-based immigrant visas that are similar to the EB5 investor green card, however, there are some possible alternatives that may also fit the EB5 investor’s professional qualifications.
Closer Alternatives
The closer employment-based green card petition alternatives to the EB5 green card include: (1) the EB1a green card for persons who have extraordinary ability in the sciences, arts, education, business, or athletics, (2) the EB1c green card for executives or managers of multinational companies that have worked overseas for at least 1 year, (3) the EB2 green card for persons who have exceptional ability in the science, business, arts, (4) the National Interest Waiver filed with an EB2 green card petition (EB2 NIW) for persons who are qualified in being able to make contributions that substantially benefit the United States as a nation, and (5) the Physician’s National Interest Waiver filed with an EB2 green card petition (EB2 PNIW) for doctors who agree to provide healthcare services in certain U.S. government-designated facilities or medical personnel shortage areas.
Further Alternatives
Other employment-based green card petition alternatives that are more dissimilar to the EB5 green card include: (1) the EB1b green card for outstanding professors and researchers who are internationally recognized as outstanding in their academic field, (2) the EB2 advanced degree green card for persons who have at least a Master’s degree(or a bachelor’s degree and 5 years of post-college progressive work experience) and have a job offer for a position that requires that specific type of degree, (3) EB2 Schedule A Group II green card for persons who have exceptional ability in the performing arts, science, or arts, (4) the EB3 Schedule A Group I for professional nurses and physical therapists, and (5) the EB3 green card for professionals, skilled workers, other unskilled workers.
Professional workers under the EB3 green card petition are required to be a member of a profession with at least a bachelor’s degree (or its foreign equivalent) and a job offer that requires a bachelor’s degree. Skilled workers under the EB3 green card petition are required to have qualifications to perform a job that requires at least 2 years of training or work experience. Other workers under the EB3 green card petition are only required to be able to perform an unskilled job that requires less than 2 years of training or work experience.
Comparable Nonimmigrant (Temporary) Visas
The comparable nonimmigrant (temporary) visas to the EB5 green card includes the E1 visa (Treaty Trader) or the E2 visa (Treaty Investor) that allow an investor to manage and invest in a U.S. business, or the L1A visa where the manager or executive of a multinational company is allowed to open up an office in the United States.
If you have an EB5 green card (Investor) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.
How we can help?
Kylie Huang Law’s immigration attorney will help identify whether the EB5 green card is the appropriate immigrant visa category for the client’s professional background. We will work closely with our client to prepare a convincing case for their EB5 green card petition and we will also strategize on how the EB5 green card petition should be presented to achieve the best chances of approval. It is strongly advised and common practice to retain an immigration attorney for an EB5 green card petition (investor green card) due to the complexities in the immigration process and visa requirements.
What does the typical process look like to retain (hire) us?
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- Fill out the form (with some basic information on what your immigration needs are)
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- Attend scheduled appointment (typically a phone call or zoom meeting)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming content of documents that will be submitted
- Filing the case
- Following up on the case status
- Close the case when a final determination is issued