In order for a foreign national to qualify, the person must make an investment of $1 million. The investment requirement lowers to $500,000 if it can be established that the investment will be for what is known as a targeted employment area, which means a rural area or an area having at least 150% of the national unemployment average.
The foreign national must make the investment in a commercial business. Investment must consist of capital, which means cash or tangible assets. Regulations provide that capital must have been acquired legally. Capital that was acquired in an unlawful manner or was acquired while the person was in unlawful immigration status may not be used.
The investment must create a new business, or restructure or expand an existing business. In order to qualify, the immigrant investor must be engaged in the management of the enterprise, rather than possess a mere passive role.
Once the EB5 visa is granted, the foreign national obtains lawful permanent resident status, which is for a conditional two-year period. A petition to remove the condition must be filed within 90 days before the end of the two-year period with evidence that the investor still meets the requisite criteria. Failure to meet the deadline terminates the permanent resident status.
The EB5 visa category is one of the most complicated areas of immigration law. Although 10,000 visas are available each year, only 1,000 are granted. It is highly advisable retain a professional and experienced attorney with the ability to competently handle EB5 cases. Such practice not only involves an extensive knowledge of immigration law, it also requires knowledge in corporate, investment, and tax law as well. It may be advantageous to also examine the possibility of alternatives including EB1, E2, and L1 since you may qualify for these as well.