Fifth Preference EB-5 Category

Employment Creation. INA § 203(b)(5).

The Fifth Employment-Based (EB-5) Preference provides an immigrant visa category for foreign investors who engage in a new commercial enterprise that will benefit the U.S. economy. Ten thousand visas are available to foreign investors each year in this green card category.

To qualify for the EB-5 Preference, a foreign investor must establish a new commercial enterprise and invest at least $1 million. This investment amount may be reduced to $500,000 if the investment is made in a “targeted employment area.” A targeted employment area is either a rural area or an area whose unemployment rate is at least 150 percent of the national average. The regulations define a rural area as an area not within a metropolitan statistical area or the outer boundary of a city or town with a population of 20,000 or more. Of the total 10,000 visa numbers available for the EB-5 preference, 3,000 visas are reserved for entrepreneurs who invest in targeted employment areas.

The regulations also require that the investment create or save at least ten full-time jobs. These jobs must be for U.S. citizens, lawful permanent residents or other immigrants authorized to work. This requirement may not be satisfied with jobs for the foreign investor or his or her immediate family. The foreign investor must also be actively involved in the business enterprise. The investor must show that he or she will be engaged in a management role by day-to-day managerial control or as a policy maker. The investment can be made in cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the foreign investor.

A petition for EB-5 classification is filed on Form I-526 with the required documentation at the appropriate Service Center. If approved, the foreign investor and any spouse or child receives a conditional permanent resident status for a two year period.

In order to remove the conditions and become a regular permanent resident, the immigrant investor must file Form I-829 to the appropriate Service Center and provide evidence that he or she has substantially maintained the business investment for the past two years. Failure to do so will result in automatic termination of the conditional resident status and the initiation of removal proceedings.