The fifth preference (EB-5) employment-based visa is different from all the other employment-based visas because it’s a visa that’s based solely on bringing about an economic benefit for the United States. A foreigner can enter the United States by way of an EB-5 visa if they plan to invest in a U.S. business. The fifth preference (EB-5) visa was created by congress in 1990 to encourage foreign investors to invest in the U.S. economy and create more jobs. About 10,000 EB-5 visas are set apart every year, however, rarely is the maximum met. The process for petitioning an EB-5 visa is tedious, and you must not go at it alone. Seek an immigration lawyer for fifth preference (EB-5) to make sure the paperwork is done correctly.
Our legal team at The Gonzalez Law Group has been fighting for clients’ cases for years. Our priority for communication and understanding with our clients is what makes us get through the case together. We will never leave you in the dark. We understand the immigration process is complicated for you and your loved ones, and we want to ease the stress for you.
Overview of Fifth Preference (EB-5)
- Who Qualifies for Fifth Preference (EB-5)?
- What is the Regional Center Program?
- Filing for Fifth Preference (EB-5)
- Additional Resources
Who Qualifies for a Fifth Preference (EB-5)?
A fifth preference (EB-5) immigrant visa is one that is open to investors planning to invest money into the United States and create employment for authorized people working inside the United States. There are particular requirements you have to meet to apply for this EB-5 visa. There’s no specific type of business or business size that fits one definition. The definition of a commercial enterprise (for-profit) can include any of the following types of business:
- A Sole Proprietorship (one owner);
- Partnership;
- Holding Company;
- Joint Venture;
- Corporation;
- Business Trust;
- Public or Privately-owned Entity;
But the enterprise has to meet two critical requirements. The first is that of the investment amount. According to USCIS, the investment amount required is as follows:
- Invest at least $1.8 million of capital investment in a qualifying commercial enterprise; or $900,000 in a high unemployment or rural area, considered a targeted employment area
For this, the investors petitioning themselves, and their business must prove that they are the legal owner of the capital invested inside the enterprise. Capital can include cash, equipment, inventory, tangible property, cash equivalents, and assets owned by immigrant investors. This is assuming all of the money is earned through lawful means. The petitioning company’s assets are also not counted towards this capital. As of November 21, 2019, the minimum investment amount for an EB-5 petitioning business is 1.8 million dollars, including one located in a high employment area. The new amount is based on inflation and will continue to be adjusted on future inflation to come.
TEA businesses are the only exception to this amount. A TEA or Targeted Employment Area investment is one that is, at the time of investment, located in a rural area (20,000 or more in population, outside of a metropolitan area), or a high unemployment area (150% of the national average unemployment rate). The unemployment area still has to have a population larger than 20,000. According to USCIS, 3,000 out of the total amount of EB-5 visas available are set apart for TEA investments. For this type of investment, the invested amount necessary is less, at 900,000 dollars, as of November 21, 2019.
USCIS explains the second requirement for meeting an EB-5 visa classification is the following:
- Within two years of approval, create full-time jobs for at least 10 U.S qualifying workers (excluding investor’s spouse, or children)
A non-regional center enterprise that is newly founded must create ten full-time positions directly. In other words, the new commercial enterprise or its entirely owned subsidiaries will be the titled employer of those ten qualifying employees. If the enterprise is located within a regional center, then the creation of jobs is noted differently (See regional center section).
A business can also qualify as a troubled business. The EB-5 application refers to troubled businesses as those that have existed for at least two years and have incurred a net loss, 12-24 months before the priority date set for the investor. The net loss has to be 20% of the net worth before the loss. Troubled businesses can rely on the maintenance of employment to fulfill the job creation requirement. This means that an investor has to maintain the current number of existing employees before investment for at least two years once approved.
Other important details regarding the specifications of the EB-5 application and enterprise include:
- A qualifying employee is one that is legally authorized to work in the United States, not the investor’s spouse or children, but with an immigrant status if applicable
- Full-time employment is one that consists of 35 hours per week, aside from part-time positions, which don’t count; expected to last at least two years; seasonal or temporary work isn’t counted either
The four types of investor visa classifications are as follows:
- Employment creation outside a targeted area (C5)
- Employment creation in a targeted rural/high unemployment area (T5)
- Investor Pilot Program not in a targeted area (R5)
- Investor Pilot Program in a targeted area (I5)
What is the Regional Center Program?
As a foreign investor, it’s less about the money, and more about choosing where to invest the money, and how to hire and maintain the employee requirement. Regional centers are made to influence the investor’s perspective because regional centers are focused on the economic needs of TEAs and targeted job creation. They make the process easier for investors, such as by allocating the creation of jobs and the money to where it needs to be allocated.
The job creation requirement to be met for regional centers is a little more open. The investor’s investing enterprise can create jobs directly and indirectly if associated with a regional center. Direct jobs are those in which the relationship between the enterprise and its employees is direct. In this case, the enterprise is the place of employment for those employees. Indirect jobs, on the other hand, are jobs created outside of the enterprise, such as the regional center, but still as a result of the newly founded enterprise.
Filing for Fifth Preference (EB-5)
As with other employment visa applications, the process can be long and enduring, so it’s always best to seek an immigration attorney for employment-based applications to do the filing for you. For a fifth preference (EB-5) visa, you’ll have to submit Form I-526, along with the necessary documentation.
Similar to other immigrant visa applications, you can also petition your spouse and unmarried children under 21 years of age to come with you. You must petition them in connection with your EB-5 visa application. The process is challenging to do by yourself, so the best thing is to leave it to an immigration attorney to do the work for you. Remember to check priority dates for EB-5 to know when you can petition yours and when you can expect to receive a response.
Additional Resources
Regional Centers List – The following page is the list of authorized Regional Centers, as stated by the U.S Citizenship and Immigration Services (USCIS). If you are interested in the Regional Center program, this is an excellent place to begin when inquiring about what your business can do for the Regional Center.
Invest In The USA Homepage – Invest In The USA is a page dedicated to promoting the fifth preference EB-5 visa through research and data that shows the positive impact EB-5 investors have in the U.S. economic flow.
Contact a Houston Immigration Attorney
If you are looking to invest in a business in the United States as a foreigner, then you could be eligible for an EB-5 investor visa. You’ll need a reliable legal counsel to help you submit your application. Here at The Gonzalez Law Group, we strive to help our clients obtain the most favorable outcome. Our firm has been involved in immigration law for years, and we understand the overwhelming and challenging toll the application process can take over our clients.
Our lawyers are in constant communication with our clients to make sure they are aware of their case’s progress. We never want to leave you in the dark. Speak to one of our immigration lawyers to inquire more about the fifth preference (EB-5) visa and schedule a consultation call. We work with clients with ties in Harris County, Brazoria County, Fort Bend County, Galveston County, Montgomery County, Waller County, and more. Call us at (832) 530-4070 for a free consultation with no attachments.
