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What We Do – EB5 Immigration Consulting
EB-5 VISA FREQUENTLY ASKED QUESTIONS
Section 2: Immigration Matters
Must I have previous business experience or education?
The investor is not required to have any prior business experience. Likewise, the investor is
not required to demonstrate any minimum level of education. The only requirement for
the investor is that he/she has the required net worth and capital. (Accreditations)
Must I speak English?
No
Must I be in good health?
Yes
What are the benefits of the Green Card?
Each person has his/her own reason for wanting permanent residence in the United States,
and having a Green Card provides many benefits that accomplish these goals:
All legal permanent residents under the EB-5 Investor Program enjoy the same
benefits as every other United States resident.
The United States is a safe harbor for your family as well as your personal and business
investments. Any member of the family with a Green Card can enter the U.S. at any time
and stay as long as he/she wishes.
Investors have constant and easy access to the United States for personal, trade and
business purposes.
Permanent residents travel to the U.S. without the need of a visa. Investors may work,
live, or own their own proprietary business anywhere in the United States.
The U.S. has internationally recognized colleges and universities for both basic
education and graduate study. As a resident, the investor can benefit from lower tuition costs.
The cost of living in the U.S. is less than most large industrial nations. Consumer goods,
services, and housing are significantly less expensive than comparable services and good in most
other countries.
Students may work in the U.S. while they attend college and continue to work afterwards.
This enables the student to pay part of his education and to work while attending graduate and
postgraduate studies.
The U.S. provides many financial, social and education entitlements: public schools, health
and medical attention, social security, and education.
The investor has the ability to bring other family members to the U.S. after proper application,
and they can obtain U.S. citizenship after 5 years.
The permanent residency requires no renewal or re-application. Other U.S. non-immigrant visas,
such as E-2 and H, may never result in permanent residency, have time limits, and require
additional filing with USCIS or Department of State. Furthermore, U.S. immigration laws may
change and prevent future approval when a renewal of visa is required.
What is meant by the requirement that the investor’s assets be “lawfully gained”?
Under USCIS regulations, the investor must demonstrate that his assets were gained in a lawful manner. This requires the investor to prove his investment funds were obtained through lawful business activity, salary, investments, property sales, inheritance, gift, loan or other lawful means.
Can money gifted by a parent or other relative be used for an EB-5 Investment?
Yes, provided that any applicable gift taxes are paid. It must be demonstrated that the gift is an actual arms length transaction and is not a mere ruse that the gifted funds will be given back after permanent resident status is granted.
What is the difference between “conditional” and “unconditional” Green Cards?
Under the regulations, an investor who is approved for the EB-5 immigrant visa receives a “conditional” Green Card, which is subject to removal of certain condition after two years (the investor can file for the removal of the conditions as of Month 21). Otherwise, the two cards offer the same rights and privileges.
What is a ‘Conditional’ Green Card?
A ‘conditional’ Green Card is a temporary Green Card valid for two years. One year and nine months after it is issued, there is a three-month window during which an individual must file another application with the USCIS to verify that all of the funds have been invested and employment created in a regional center whether directly or indirectly. When the conditional resident status has been lifted, full resident status is granted and a permanent Green Card is issued.
If my I-526 petition is approved by USCIS, what is the purpose of the Consulate application and Interview, and how soon do I get my Green Card?
Upon approval of I-526 Petition, you must wait for notification from the U.S. Consulate in your home country to prepare documents for the Visa interview. The purpose of this procedure is to ensure that the investor and his/her family undergo medical, police, security and immigration history checks before the ‘conditional’ permanent resident visa is issued. At the interview, the consulate officer may address issues and information printed on the I-526 application, including asking the investor to summarize the nature of his/her immigrant investment. If the investor and his/her family are in the United States, then you may apply for adjustment of status by filing form I-485, and supporting documents. The application may be filed at the appropriate office of the USCIS.
Can I apply for an EB-5 if I have been rejected or terminated in the past by USCIS for an L-1, E-2, B, or other visas?
Rejection in the past does not disqualify the applicant, unless the reasons for denial were related to immigration fraud or other major problems. It is most important that all criminal, medical, or U.S. immigration history problems be disclosed to the regional center entityand legal counsel prior to completing an application.
After petition approval, can members of the family be interviewed in different countries?
Family members can be interviewed in different countries. The country of origin or where the family has current ties is the standard interview site. Often one member of the family is located in another country, such as a student attending school in the U.S. The student does not have to return to the country of origin and can adjust status in the United States at the district office of the USCIS.
Who receives the permanent residency (Green Card)?
Husband, wife and any unmarried children under the age of 21. It is possible for adopted children to be included in the family. Upon approval, you will receive a form evidencing approval and a travel document. You should also receive a temporary Green Card in the mail.
What issue caused the most problem when applying for an EB-5 visa?
The most common problem area has been insufficient documentation of the source of funds. Many people try to disclose the least possible information only to have the file returned with a request for further information. It is better to provide too much information rather than too little. In this era of terror alerts, and suspicions about money laundering, USCIS case examiners require a well-documented and transparent source of funds analysis.
How long must I remain in the United States each year?
The first requirement of any investor after receiving their visa at the United States overseas consulate office is to enter into the United States within 180 days of visa issuance. The investor must then establish residency in the United States. Evidence of intent to reside includes opening bank accounts, obtaining a driver’s license and/or social security number, paying state and federal income taxes, renting or buying a home. The United States resident may work overseas if required by his business or profession. However, all permanent residents must remain in the U.S. for more than six months each year, or they may be deemed to have abandoned their permanent residence status.
What is the difference between ‘permanent residency’ and ‘citizenship’?
Once you obtain a Green Card and become a legal permanent resident, you have most of the rights and obligations of a U.S. citizen, except that you cannot vote and you are not entitled to some public benefits. You are subject to the same tax filing requirements, tax rates and deductions as U.S. citizens.
Your Green Card is your most important travel and identification document. When it arrives, review it carefully. You may need to extend it in 10 years. If it is lost, stolen, or duplicated, you may file a form with the USCIS to replace it.
“Abandonment of residency” rules are an important restriction to which legal permanent residents are subject. Abandonment can occur when you are outside of the United States for more than six months without informing the USCIS in advance. The law allows you to travel abroad, providing your trip is “temporary”. Generally, the USCIS views any absence from the United States for longer than six months as not temporary. Thus, it is advisable to obtain a “re-entry permit” before your departure.
One of the most important rights legal permanent residents possess is the right to obtain U.S. citizenship after five years. There are two ways to become a U.S. citizen. One is by being born in the U.S. The other way is by naturalization. The first step in becoming a U.S. citizen through naturalization is to become a Legal Permanent Resident (LPR). Being a LPR for 5 years is one of the basic requirements for qualifying for naturalization. A second requirement is being physically present in the U.S. for 30 months during the 5 years prior to the naturalization application. Once becoming a U.S. citizen, an individual is entitled to benefits including the right to vote and hold public office.
Can my Green card be taken away from me? How to keep your Green Card after you get it!
Once you receive a Green Card, there are only two conditions required to keep it for life. First, you must not become removable or inadmissible. The most common way of doing this is to be convicted of a serious crime.
The second requirement is not to abandon the United States as your permanent residence. As long as you do not plan to make your home somewhere else, legally you are a resident of the United States. Problems may arise, however, because the USCIS will judge your actions.
“Abandonment of residency” rules are an important restriction to which legal permanent residents are subject. Abandonment can occur when you are outside of the United States for more than six months without informing the USCIS of your plans in advance. The law provides that you are free to travel abroad, providing your trip is “temporary”. Generally, the USCIS views any absence from the United States for longer than six months as not temporary. Thus, it is advisable to obtain a “re-entry permit” before your departure.
Generally, if you have a Green Card and leave the United States for more than year, you may have difficulty re-entering the country. The USCIS views an absence of longer than one year as possible abandonment of U.S. residence. To avoid a full-scale inspection, return within six months.
It is a common misconception that to keep your Green Card you need to only enter the United States at least once a year. If you ever leave with the intention of making some other country your permanent home, you give up your U.S. residency.
Remaining outside the United States for more than one year does not mean you have automatically given up your Green Card, if your absence was intended to be only temporary. However, you may no longer use your Green Card as a U.S. entry document. You must either apply at a U.S. consulate for a special immigrant visa as a returning resident or you must get a re-entry permit.
I have a Green Card and plan on traveling out of the U.S. for a long time. Can I keep my Green Card?
Maybe. The primary rule surrounding Green Cards is that you lose it if you give up your U.S. residence. For example, if you show up with a moving van on the border to Canada or Mexico, there is a chance that a BCBP officer will notice this and possibly revoke your Green Card right away.
The more common criterion, though, is time based. There are three important time limits to know about:
If you are absent for less then six months, you will rarely have a problem. It is up to USCIS to prove that you abandoned your residency.
If you are absent for more than six months but less than a year, the burden of proof reverses. It becomes your job to prove that you are still a permanent resident. This is based on the concept that after six months you have to be re-admitted and have to prove that you are still admissible.
If you are absent for more than a year, your Green Card will be considered almost automatically abandoned. Once that happened, there is usually no recourse.
I need to travel out of the U.S. for more than a year. Is there nothing I can do?
You can apply for a re-entry permit (on form I-131) before you leave the U.S. You can depart before the re-entry permit is approved.
Re-entry permits are issued for two years. With a re-entry permit, you can return to the U.S. after one year until the re-entry permit expires. You cannot renew a re-entry permit, but you can return to the U.S. for a short time and apply for a new one. The second re-entry permit will be granted for two years, but subsequent ones may only be approved for one year at a time.
How long is a Green Card valid for?
There are several answers to this question.
If you received your Green Card through marriage, and have not been married for two years, or you received your Green Card through investment (EB-5), you will have a ‘conditional’ Green Card for two years.
You must apply for removal of the “conditional” Green Card within 90 days before the end of the two years. Once approved, you have a regular unconditional Green Card. If you apply too early or too late, you will have a problem and should consult with an immigration attorney for advice.
If you do not have the conditions removed, the Green Card will become invalid at the end of two years, and your permanent resident status will be terminated.
Unconditional Green Cards are good for ten years. You do not stop being a legal permanent resident – only the card itself becomes invalid. You must apply for a new one using form I-90. Without a current Green Card, you cannot use it to travel out of the U.S. and will not be able to use it as evidence that you are permitted to work.
Are any countries excluded from eligibility for the EB-5 Visa program?
Residents of a few countries are excluded (e.g. Iran and Iraq). In most cases, however, if the applicant is able to leave the excluded country and has the necessary capital to qualify under the program, legal counsel will be able to help the applicant qualify for the visa approval.
What is an ‘escrow’ account, and when does the investor transfer the money to this account?
An Escrow Bank Account is a legal, interest-bearing account established in a bank to hold the initial deposit in trust until the completion of visa processing. This type of account is commonly used in the sales of real estate, businesses and personal property. The Investment Visa Program has established an Escrow Account in a leading bank in the United States for the purpose of safely holding an investor’s funds. Under the agreements entered into with the servicing affiliate, the investor’s principal investment, aside from legal and administrative fees, is not authorized to be released from the Escrow Bank Account by the bank until the visa I-526 Petition has been approved. This process was created to protect the investor. Interest remains with the limited liability company during the escrow period.
How does the bank “escrow” account protect me against the risk of losing my money?
The initial cash deposit from the investor is placed in a legal, interest-bearing Escrow Bank Account. When an Escrow Bank Account is established, the funds continue to belong to the investor; however, they are committed to be placed into the investment upon petition approval. The attorney or bank has an agreement with the investor that requires the investment funds to be released from the account only when the I-526 petition is approved by the USCIS.
Can I apply if I am currently out-of-status (i.e., I live in the United States, but do not have a current visa)?
Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. They must first return to their country of origin and apply through the United States Embassy there. Examples of “out-of-status” individuals are students, tourists; E-2 treaty investors who no longer have valid visas because they remained in the United States after their visas expired or were revoked. Use extreme caution.
What is a Designated Regional Center?
A “Regional Center”
Is an entity, organization or agency that has been approved as such by the U.S. Citizenship and Immigration Services;
Focuses on a specific geographic area within the United States; and
Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
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