Myths Associated with the EB-5 Immigrant Investor Visa

by Kyle J. Barella, Esq.

As a full-service EB-5 immigration law firm, we frequently receive enquiries from prospective immigrant investors who have been misinformed regarding the EB-5 program requirements and eligibility.  Unfortunately, the misinformation they receive often comes from retaining an inexperienced EB-5 immigration lawyer or consulting with an unlicensed migration agent.  Some of the most common EB-5 myths we hear can be found below.

Myth 1: “I own a residential property in the United States valued at over $1,000,000 USD.  Therefore, I qualify to apply for an EB-5 visa and US permanent residency.”

The Reality: Simply owning a residential property in the United States valued at over $1,000,000 USD does not allow a potential immigrant investor to qualify for the EB-5 visa.  The qualified invested capital must be made in a new commercial enterprise which has the capacity to support ten full-time jobs for qualified employees.

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Myth 2: “I’m not eligible to apply for the EB-5 visa because I do not have a university degree and do not speak English very well.”

The Reality:  Provided that the investor meets the minimum investment amount and submits evidence that their funds were lawfully obtained, they may apply for the EB-5 visa program.  There is no education, English language, job offer, or family sponsorship requirement to apply.  This is one aspect that makes the EB-5 Immigrant Investor Visa so appealing.

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Myth 3: “I found an EB-5 project that will guarantee my invested capital.  Therefore, I’m more likely to have my EB-5 petition approved.”

The Reality: The immigration rules and regulations do not allow for the EB-5 investment to be guaranteed.  The investment must be considered to be at risk for immigration purposes.  Any guarantee of returning the investment capital will be grounds for denial of the EB-5 petition.  That said, our firm only works with reputable EB-5 projects with a track record of immigration success.

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Myth 4: “I am unfamiliar with US business practices and do not feel comfortable running a business in the United States.  I certainly would not be able to meet the 10 job creation requirement for the EB-5 visa.  Therefore, I am ineligible to apply through the EB-5 program for permanent residency.”

The Reality: For potential immigrant investors not comfortable establishing their own business and meeting the EB-5 job requirements, there is a passive EB-5 investment option they may choose.  Projects located within a USCIS approved Regional Centres are designated to pool investors’ funds and actively manage the EB-5 project without requiring the investors’ participation.  The immigrant investor may choose to live or work anywhere in the United States, regardless of where their investment is located.

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Myth 5: “The EB-5 visa is just a way for wealthy foreign nationals to buy a green card.  It serves no benefit to the United States.”

The Reality:  EB-5 investors contribute to the promotion and success of the US economy.  Each individual’s capital investment is required by law, to create ten full-time jobs for US citizens or other immigrants authorized to work in the United States.  Along with job creation, EB-5 investors stimulate the economy through the purchase of homes, vehicles, and other consumer products.  The EB-5 visa program has contributed greatly to the US economy since its creation in 1990.

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Myth 6: “I cannot apply for the EB-5 visa because I did not personally earn the money to make the investment — it was given to me as a gift.”

The Reality: Most lawfully earned funds can be used for the EB-5 capital investment.  This can include an irrevocable gift, or any a loan secured on the personal assets of the investor.  The important aspect of EB-5 funding is that the money can be traced back to a lawful source.  Funds earned through criminal activity may not be used to obtain an EB-5 visa.

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Myth 7: “I’m currently in the United States on ESTA (or on a tourist visa).  Therefore, I can remain in the US while my EB-5 petition is pending with USCIS, and file for adjustment of status once it is approved.”

The Reality:  Unfortunately, this is not possible.  One is only eligible for adjustment of status in the United States if they maintain an eligible non-immigrant status through the time when the EB-5 visa is approved.  The current processing time for an I-526 petition (EB-5 visa) is over 12 months.  A tourist visa does not allow its holder to remain in the United States for more than six months out of every calendar year.

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Myth 8: “I do not qualify for an EB-5 visa because I do not have $1,000,000 USD to invest.”

The Reality:  When the EB-5 Immigrant Investor Visa program was originally introduced in 1990, the $1,000,000 USD investment was the only option.  However, in 1992, Congress enacted the Regional Centre Pilot Program which authorized a reduced investment of $500,000 USD for investments made in Targeted Employment Area (TEA).  TEAs are rural areas with a population of less than 20,000, and locations suffering from high unemployment of at least 150% of the national average.

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Myth 9: “I have invested over $1,000,000 USD in a new commercial enterprise located within the United States.  However, I only have a 25% ownership interest of the business.  Therefore, I am not able to apply for an EB-5 visa.”

The Reality: There is no set ownership requirement in order to qualify for the EB-5 visa.  An immigrant investor need only meet the minimum investment amount, along with the other relevant immigration requirements.  A potential investor could own 1% or 100% of the business and still qualify if all other requirements are met.

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Myth 10: “I do not believe the United States has a treaty of commerce and navigation with my country of nationality.  Therefore, I am ineligible to obtain permanent residency through the EB-5 visa program.”

The Reality:  Do not confuse the EB-5 Immigrant Investor Visa with the E-2 Treaty Investor Visa.  Unlike the E-2 visa, there is no nationality, ownership interest, or residency requirement to be eligible for the EB-5 visa.  A treaty of commerce and navigation is not necessary for you apply for the visa.

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Conclusion
These are just a handful of the EB-5 visa myths that are promoted through the internet, or by an unlicensed migration agent.  Potential investors who rely on these myths, or the public domain for their information may suffer serious immigration consequences, including the denial of an EB-5 petition and loss of invested capital.

For further information on the EB-5 investor visa and to speak with an attorney, please contact Ortega-Medina & Associates.

About the Author
Kyle J. Barella is an Associate Attorney for the US business immigration law firm of Ortega-Medina and Associates, headquartered in London, England (UK).  The firm also maintains associated offices in California and Florida.  Attorney Barella focuses his practice on assisting foreign investors through the EB-5 visa process, as well as business owners and developers with the establishment of USCIS approved Regional Centres.

www.eb5investmentlaw.com | www.ortega-medina.com