EB-5 ProgramEB-5 Project Diligence

Why Consulting With an EB-5 Immigration Attorney is Crucial


Despite the popularity of the EB-5 Immigrant Investor Program, foreign nationals considering pursuing an EB-5 visa may be discouraged by how complex the process is. Not only does the EB-5 process take several years, but there are also several regulations for investors. If United States Citizenship and Immigration Services (USCIS) determines that an EB-5 investment is not compliant with these guidelines, the investor will not receive U.S. permanent resident status.

While the stakes may be lower, the situation is similar for business owners looking to secure funding through the EB-5 program. If a business fails to comply with all USCIS requirements related to EB-5 projects, the foreign nationals who have invested in it will be denied permanent resident status.

It is advisable, therefore, for all parties in the EB-5 investment industry to seek advice from immigration attorneys experienced with the EB-5 process. Immigration counsel can give direction to ensure that both projects and investments are in line with USCIS criteria. In this article, we explain the benefits of legal advice for both investors and business owners.

Why Foreign Nationals Need EB-5 Attorneys

For a foreign national considering relocating to the United States, engaging in the EB-5 investment program has high stakes. While there is a degree of financial risk in any investment, an EB5 investment carries an additional immigration risk. If USCIS denies the investor’s visa petition, they will not be granted U.S. permanent residency. Therefore, potential investors should plan carefully before subscribing to an EB-5 project.

An immigration attorney can help foreign nationals select an EB-5 investment project that carries a low immigration risk. These projects typically demonstrate a good awareness of and compliance with USCIS regulations. In particular, projects with a large job cushion are recommended, as these are more likely to fulfill the job creation criteria. Although each EB-5 investment must create a minimum of 10 U.S. jobs, projects that plan to create a greater number of qualifying roles are safer choices.

USCIS will carefully examine the details of every EB-5 investment and EB-5 project in the I-526 petition. In this petition, a foreign national must demonstrate that the investment is compliant with all regulations and provide supporting evidence to back up these claims. One particularly challenging aspect of Form I-526 is the need to provide full documentation related to the investment capital, tracing it back to its legal source. The nature of the documentation required depends on the source of funds (which could be, for example, from a loan, salary payments, or the sale of real estate). Gathering this evidence and ensuring there are no discrepancies is one of the most time-consuming hurdles in the EB-5 process, and the assistance of an experienced attorney is invaluable.

When approved, Form I-526 grants an investor conditional U.S. residency for two years. In the final 90 days of this period, the foreign national must file Form I-829 to obtain permanent residency. This petition provides evidence that the EB-5 investment was successful at creating at least 10 U.S. jobs and fulfilled the at-risk requirement throughout the investment period. Again, the evidentiary standards of USCIS are high, and the support of an immigration attorney to select, gather, and submit the necessary paperwork for Form I-829 is recommended.

Why EB-5 Projects Need Immigration Counsel

For business owners looking to benefit from EB-5 capital, compliance with USCIS regulations is crucial. Failure to work within these guidelines from the earliest stages of planning the business could mean that the project will be unable to attract EB-5 investors, or that the foreign nationals who subscribe to the business will be denied their EB-5 visas.

Consequently, there is value to business owners in discussing their business plans and investment model with an experienced EB-5 attorney. Setting up the operations and structure of the business in compliance with USCIS guidelines, and ensuring the EB-5 investment funds will be handled and applied in a compliant way, are both important aspects of EB-5 business development that can benefit from legal advice.

In summary, there are benefits for both project developers and potential investors in consulting with immigration attorneys experienced in the EB-5 industry. It is recommended that all parties hire immigration counsel early as possible in the EB-5 process.