EB-5 Process from Investment to Green Card: A High-Level Guide

The EB-5 Immigrant Investor Program offers a pathway to a U.S. Green Card for foreign nationals who make a qualifying capital investment in a new commercial enterprise that creates or preserves at least ten full-time jobs for qualifying U.S. workers. Navigating this process requires careful planning and adherence to strict USCIS guidelines.

Phase 1: Investment and Petition Filing (I-526/I-526E)

The initial phase focuses on demonstrating the source of funds and the viability of the investment project.

1. Capital Investment and Fund Sourcing

The investor must prove that the required capital has been irrevocably committed to the new commercial enterprise (NCE).

• Minimum Investment Amounts: Typically $1,050,000, or $800,000 if investing in a Targeted Employment Area (TEA) or infrastructure project.
• Source of Funds: Documentation must trace the funds from their origin (e.g., salary, business profits, inheritance, gifts).

2. Filing Form I-526 or I-526E

The primary petition is filed with U.S. Citizenship and Immigration Services (USCIS).

1. I-526 (Standard): For investments not involving direct USCIS-approved Regional Centers.
2. I-526E (Regional Center): Required for investments made through an EB-5 Regional Center, which often simplifies job creation proof.

This petition must include the business plan, proof of investment, and evidence that the NCE meets all statutory requirements.

Phase 2: Conditional Permanent Residence (I-485 or DS-260)

Once the I-526/I-526E is approved, the investor proceeds to seek conditional residency, depending on their location.

Adjustment of Status (AOS) vs. Consular Processing

The path taken depends on whether the investor is already legally present in the United States.

• Adjustment of Status (Form I-485): Filed if the investor is physically present in the U.S. and eligible to adjust status.
• Consular Processing (Form DS-260): Used if the investor resides outside the U.S. or is not eligible for AOS. This involves an interview at a U.S. Embassy or Consulate abroad.

Successful completion of this phase results in the issuance of a Two-Year Conditional Green Card.

Phase 3: Removal of Conditions (I-829 Petition)

The final substantive step is proving that the investment has sustained the required job creation and maintained the capital investment for the full two-year conditional period.

Job Creation Requirements

The NCE must demonstrate that at least ten qualifying full-time jobs have been created or preserved by the time the I-829 is filed.

For Regional Center projects, job creation can include direct, indirect, and induced employment, as calculated by USCIS-approved methodologies (e.g., RIMS II).

Filing Form I-829

This petition must be filed within the 90-day window immediately preceding the expiration of the two-year conditional green card. Key evidence includes:

1. Proof that the full capital investment remains "at risk."
2. Sufficient documentation showing ten qualifying jobs were sustained.
3. Financial statements confirming the business operations.

Upon approval of the I-829, the investor and their qualifying family members receive their Permanent Green Cards without conditions.

Conclusion

The EB-5 process is lengthy, often spanning five to seven years from initial investment to final permanent residency. Due diligence regarding the Regional Center, project viability, and meticulous documentation of fund sourcing and job creation are critical for a successful outcome.