EB5 Visas
The EB-5 visa program allots 10,000 EB-5 visas each year for immigrants who invest at least $1 million (or $500,000 in high unemployment or rural areas) to create or preserve at least 10 jobs. In return, the investor receives a two-year conditional permanent residence card. If the job-creation goal is reached can be converted into permanent resident status with a pathway to citizenship.
Congress also started the Regional Center Pilot Program which allows local governments and businesses to create investment pools. Therefore, EB-5 applicants can simply deposit the requisite investment into the investment pool instead of creating the business themselves.
Investors must invest in a new commercial enterprise which does not include a passive noncommercial activity.
What Are the Job Creation Requirements?
What are the Capital Investment Requirement
What is a High Unemployment Area?
An area which has 150% of the national average unemployment rate.
What is a Rural Area?
An area not within a metropolitan statistical area as designated by the Office of Management and Budget.
There is an application and a verification process.
What is the Application Process?
- File Form I-526, Immigrant Petition by Alien Entrepreneur
- File I-485, Application to Adjust Status or DS-20, Application for Immigrant Visa and Alien Registration
- Submit evidence of the new commercial enterprise (e.g., corporate formation records with the secretary of state).
- Submit evidence you are managing the new commercial enterprise (e.g., articles of incorporation, corporate bylaws, corporate resolutions,)
- Submit evidence of capital investment (e.g., business bank statements)
- Submit evidence the source of capital is lawful (e.g., tax returns filed with foreign government in the last five years)
- Submit business plan showing 10 full-time employment positions will result from your commercial enterprise.
What is the Verification Process?
- File I-829, Petition by Entrepreneur to Remove Conditions within 90 days before the 2-year anniversary permanent residency.
- Submit evidence of requisite capital investment (e.g., business organizational documents, tax returns, audited financial statements, invoices, receipts, bank statements, contracts, business licenses, etc.)
- Submit evidence your commercial enterprise has created 10 full-time employee positions (e.g., payroll records, tax documents, I-9 forms, etc.)
Although processing times vary, the average time for processing for initial approval of the EB-5 visa takes approximately six months.
EB1 Visas
EB1 visas are employment-based immigrant visas for priority workers which will lead to permanent residence simultaneously. EB1 applicants are not required to go through the labor certification process. There are three categories of EB1 applicants:
- Workers of extraordinary ability (EB-1A)
- University professors or researchers (EB-1B)
- Executives or Managers of Multinational Companies Transferred to the US (EB-1C) (similar to L1 except US branch must be operational for at least 1 year)
EB1 visa applicants file I-140. Spouses and unmarried children under 21 may apply for admission to the US under E-14/E-15 status.
Workers of Extraordinary Ability (EB-1A)
EB-1A applicants do not need an employer to sponsor their application. However, an employment sponsor may strengthen the merits of such an application. Applicants must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. This may be done through an extraordinary one-time achievement (ie.., Nobel Prize, Oscar, Olympic Medal, etc.) or by a combination of at least 3 of the following 10 criteria:
Not all professors or researchers qualify as EB-1B applicants. The professor or researcher must show a certain degree of acclaim or accomplishment within his or her field of study with at least three years of experience in teaching or research. EB-1B applicants do need an employer sponsor. The sponsor typically has to be an academic university who may offer a tenure or a tenure-track teaching position. A research organization may also be the sponsoring employer if they can show it has the means to hire the acclaimed researcher permanently. Professional accomplishments must meet at least 3 of the following 6 criteria:
EB2 Visas
Approximately 40,000 EB2 employment based immigrant visas are used every year. EB2 applicants require a sponsoring employer unless they are applying for a national interest waiver which shall be discussed below. There are two categories of EB2 applicants:
- Advanced Degree
- Exceptional Ability
A National Interest Waiver may be obtained where the EB2 applicant does not need an employment sponsor. The applicant would have to demonstrate waiving the need for a US employer sponsor based on:
Advanced Degree
Advanced Degree applicants must have a job offer for a position which require an advanced degree and you must possess such a degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field). Your degree must match the degrees usually held by peers within the industry in the United States.
Exceptional Ability
Exceptional ability applicants must have a job offer and be able to demonstrate they have skills above and beyond their peers within their professional field. This is established by meeting at least three of the following six criteria:
EB2 visa applicants file I-140. Spouses and unmarried children under 21 may apply for admission to the US under E-21/E-22 status.
The EB-5 visa program allots 10,000 EB-5 visas each year for immigrants who invest at least $1 million (or $500,000 in high unemployment or rural areas) to create or preserve at least 10 jobs. In return, the investor receives a two-year conditional permanent residence card. If the job-creation goal is reached can be converted into permanent resident status with a pathway to citizenship.
Congress also started the Regional Center Pilot Program which allows local governments and businesses to create investment pools. Therefore, EB-5 applicants can simply deposit the requisite investment into the investment pool instead of creating the business themselves.
Investors must invest in a new commercial enterprise which does not include a passive noncommercial activity.
What Are the Job Creation Requirements?
- The full-time employee positions must be created directly by the new commercial enterprise (with no sub-contractors in between).
- The full-time employee must be a US citizen, lawful permanent resident, or other immigrant authorized to work in the United States. This does not include the investor himself or his family members. It also precludes nonimmigrants from being counted as full-time employees.
- The full-time employee must be employed in a position which requires 35 hours of work per week.
- The job must not be considered intermittent, temporary, seasonal, or transient in nature.
What are the Capital Investment Requirement
- Capital may be in the form of cash, tangible property, and indebtedness secured by the investor's assets but it may not be duplicative of assets listed in the visa applicant's petition.
What is a High Unemployment Area?
An area which has 150% of the national average unemployment rate.
What is a Rural Area?
An area not within a metropolitan statistical area as designated by the Office of Management and Budget.
There is an application and a verification process.
What is the Application Process?
- File Form I-526, Immigrant Petition by Alien Entrepreneur
- File I-485, Application to Adjust Status or DS-20, Application for Immigrant Visa and Alien Registration
- Submit evidence of the new commercial enterprise (e.g., corporate formation records with the secretary of state).
- Submit evidence you are managing the new commercial enterprise (e.g., articles of incorporation, corporate bylaws, corporate resolutions,)
- Submit evidence of capital investment (e.g., business bank statements)
- Submit evidence the source of capital is lawful (e.g., tax returns filed with foreign government in the last five years)
- Submit business plan showing 10 full-time employment positions will result from your commercial enterprise.
What is the Verification Process?
- File I-829, Petition by Entrepreneur to Remove Conditions within 90 days before the 2-year anniversary permanent residency.
- Submit evidence of requisite capital investment (e.g., business organizational documents, tax returns, audited financial statements, invoices, receipts, bank statements, contracts, business licenses, etc.)
- Submit evidence your commercial enterprise has created 10 full-time employee positions (e.g., payroll records, tax documents, I-9 forms, etc.)
Although processing times vary, the average time for processing for initial approval of the EB-5 visa takes approximately six months.
EB1 Visas
EB1 visas are employment-based immigrant visas for priority workers which will lead to permanent residence simultaneously. EB1 applicants are not required to go through the labor certification process. There are three categories of EB1 applicants:
- Workers of extraordinary ability (EB-1A)
- University professors or researchers (EB-1B)
- Executives or Managers of Multinational Companies Transferred to the US (EB-1C) (similar to L1 except US branch must be operational for at least 1 year)
EB1 visa applicants file I-140. Spouses and unmarried children under 21 may apply for admission to the US under E-14/E-15 status.
Workers of Extraordinary Ability (EB-1A)
EB-1A applicants do not need an employer to sponsor their application. However, an employment sponsor may strengthen the merits of such an application. Applicants must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. This may be done through an extraordinary one-time achievement (ie.., Nobel Prize, Oscar, Olympic Medal, etc.) or by a combination of at least 3 of the following 10 criteria:
- Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
- Evidence of your membership in associations in the field which demand outstanding achievement of their members
- Evidence of published material about you in professional or major trade publications or other major media
- Evidence that you have been asked to judge the work of others, either individually or on a panel
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
- Evidence that your work has been displayed at artistic exhibitions or showcases
- Evidence of your performance of a leading or critical role in distinguished organizations
- Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
- Evidence of your commercial successes in the performing art
Not all professors or researchers qualify as EB-1B applicants. The professor or researcher must show a certain degree of acclaim or accomplishment within his or her field of study with at least three years of experience in teaching or research. EB-1B applicants do need an employer sponsor. The sponsor typically has to be an academic university who may offer a tenure or a tenure-track teaching position. A research organization may also be the sponsoring employer if they can show it has the means to hire the acclaimed researcher permanently. Professional accomplishments must meet at least 3 of the following 6 criteria:
- Evidence of receipt of major prizes or awards for outstanding achievement
- Evidence of membership in associations that require their members to demonstrate outstanding achievement
- Evidence of published material in professional publications written by others about the alien's work in the academic field
- Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
- Evidence of original scientific or scholarly research contributions in the field
- Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.
EB2 Visas
Approximately 40,000 EB2 employment based immigrant visas are used every year. EB2 applicants require a sponsoring employer unless they are applying for a national interest waiver which shall be discussed below. There are two categories of EB2 applicants:
- Advanced Degree
- Exceptional Ability
A National Interest Waiver may be obtained where the EB2 applicant does not need an employment sponsor. The applicant would have to demonstrate waiving the need for a US employer sponsor based on:
- The proposed endeavor has both substantial merit and national importance.
- You are well positioned to advance the proposed endeavor.
- It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
Advanced Degree
Advanced Degree applicants must have a job offer for a position which require an advanced degree and you must possess such a degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field). Your degree must match the degrees usually held by peers within the industry in the United States.
Exceptional Ability
Exceptional ability applicants must have a job offer and be able to demonstrate they have skills above and beyond their peers within their professional field. This is established by meeting at least three of the following six criteria:
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
- Letters documenting at least 10 years of full-time experience in your occupation
- A license to practice your profession or certification for your profession or occupation
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable.
EB2 visa applicants file I-140. Spouses and unmarried children under 21 may apply for admission to the US under E-21/E-22 status.