Who Can Get an Investment-Based (EB-5) Green Card?

The EB-5 program is not as simple as just "buying a green card". Here's an overview of the eligibility rules.

Like many countries, the United States offers lawful permanent residency (a green card) to wealthy people, specifically business investors, who will pump money into its economy. (See I.N.A. § 203(b)(5), 8 U.S.C. § 1153(b)(5).) Your spouse and unmarried children under the age of 21 can also get green cards, as accompanying relatives.

However, this is not like paying an entry fee to get a green card. You must meet strict eligibility criteria before you can apply for permanent residency this way.

Eligibility Criteria

Applicants for a green card through investment (Employment Fifth Preference or EB-5) must not only invest $1 million in a new, restructured, or expanded U.S. business (or $500,000 if it’s in an economically disadvantaged area), they must take an active role in that business. They do not, however, need to actually control the business.

The business can be located anywhere in the U.S., so long as you maintain your investment for at least three years and are actively engaged with it.

It doesn’t matter where you get the money for the investment. Gifts and inheritances, for example, are fine—so long as you obtained it lawfully. You may even use borrowed funds as long as you remain personally liable in the event of a default, and the loan is adequately secured (and not by assets of the business you are buying).

The business must employ at least ten full-time workers, produce a service or product, and benefit the U.S. economy. Full-time employment is defined as requiring at least 35 hours of service per week.

As the investor, you do not need any particular business training or experience. Nor does it matter which country you come from. However, the immigration authorities tend to be more suspicious about possible fraud with applicants from certain countries.

Numerical Limits

Green cards for investors are limited to 10,000 per year, and 3,000 of those are reserved for applicants investing in rural areas or areas of high unemployment. If more than 10,000 people apply in any given year (which has never happened), you will be placed on a waiting list, based on your Priority Date (the day you filed the first portion of your application). Fortunately, only principal applicants are counted toward the 10,000 limit. Accompanying relatives are not. Therefore, in reality, many more than 10,000 people per year can be admitted with green cards through investment.

The trouble is, USCIS rejects many more applications than it accepts in this category, partly because the eligibility requirements are narrow, and partly because of the category’s history of fraud and misuse. In fact, some lawyers encourage their clients to use their wealth to fit themselves into another category with a greater chance of success. For example, by investing in a company outside the United States that has a U.S. affiliate, the person might qualify to immigrate as a transferring executive or manager (priority worker, in category EB-1).

See a Lawyer

Because the EB-5 category is one of the most difficult categories under which to get a green card, and certainly the most expensive, it’s well worth the investment to gain legal advice before taking any significant steps toward using this strategy. If you try the application once on your own and fail, you may damage your chances of success in the future. What’s more, because you are expected to make the investment first, and apply for the green card later, you could waste a lot of money.

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