CONTENTS
- 1. Investment Immigration (EB-5) | An Immigration Program for Investors
- 2. Investment Immigration (EB-5) | The Concept and History of EB-5
- - The Introduction and Development of the Regional Center Program
- 3. Investment Immigration (EB-5) | Requirements for Eligible Investment Immigration
- - Investment Amount Requirements
- - Eligibility of Capital
- - Job Creation Requirements
- 4. Immigrant Investor Program (EB-5) | Application Procedure and Amendments
- - Key Provisions of the EB-5 Reform and Integrity Act
- 5. Immigrant Investor Program (EB-5) | Points to Note When Preparing
1. Investment Immigration (EB-5) | An Immigration Program for Investors
Investment immigration (EB-5) is an immigration program that may rank as a priority when Korean investors consider acquiring U.S. permanent residence for the purposes of global business expansion, a stable basis for residence, and their children's education.
Investment immigration (EB-5) is a program based on relatively clear eligibility requirements and the substantive requirement of job creation, and it is drawing attention as a practical alternative in that permanent residence can be acquired without the Labor Certification process.
On March 15, 2022, President Biden signed the Investment Immigration (EB-5) Reform and Integrity Act (EB-5 Reform and Integrity Act), thereby strengthening the existing program's eligibility requirements and introducing new regulations and integrity standards to enhance the program's transparency and reliability.
We comprehensively examine the concept, key requirements, procedures, investment types, recent amendments, and even the points of caution in immigration that an applicant must keep in mind regarding the Investment Immigration (EB-5) program.
2. Investment Immigration (EB-5) | The Concept and History of EB-5
The EB-5 program (Employment-Based Fifth Preference Category) is the category corresponding to the fifth preference among U.S. employment-based immigrant visas.
It allows a foreign investor to acquire permanent residence by 1)investing capital at or above a certain amount in a New Commercial Enterprise within the United States and thereby 2)creating Full-Time Employment for U.S. workers at or above a certain threshold.
This is a program introduced to provide the individual foreign investor and their family (spouse and unmarried children under 21 years of age) with the opportunity for permanent residence and economic activity within the United States, while at the same time maximizing the economic ripple effects on U.S. local communities through job creation and capital inflow.
The Introduction and Development of the Regional Center Program
The Regional Center program, introduced as a pilot project beginning in 1992, was designed so that institutions approved on a specific regional basis recruit investors to concentrate capital in large-scale projects and gain recognition not only for direct employment but also for the indirect employment that accompanies economic effects.
Subsequently, the 2022 EB-5 Reform and Integrity Act extended the Regional Center program through September 30, 2027, while at the same time newly introducing strict reporting obligations and fund management standards to enhance integrity, accounting transparency, and oversight.
3. Investment Immigration (EB-5) | Requirements for Eligible Investment Immigration
An Investment Immigration (EB-5) investor must invest in a New Commercial Enterprise that meets the requirements below.
Investment Amount Requirements
An investor must meet the minimum investment amount required at the time of investment.
Petition Filing Date | Standard Minimum Investment | Targeted Employment Area Investment |
On or After March 15, 2022 | $1,050,000 | $800,000 (infrastructure included) |
A Targeted Employment Area (TEA) may be recognized when it is defined as a rural area or an area of high unemployment.
A high-unemployment area must have an unemployment rate that is at least 150% of the national average, and a rural area means an area outside a metropolitan statistical area (MSA) or with a population of fewer than 20,000.
In addition, future investment amounts will be adjusted every 5 years according to the Consumer Price Index (CPI), with the first adjustment applying on or after January 1, 2027.
Eligibility of Capital
Investment capital consists of cash, tangible assets, personal assets, and similar property that the investor owns and controls, valued at fair market value in U.S. dollars.
However, the following types of capital are not eligible.
- Assets obtained through unlawful means (such as criminal activity)
- Capital raised through bonds, convertible bonds, loans, or similar instruments between the investment enterprise and the investor
- Capital secured by a guaranteed return
- Capital secured by a redemption right (however, a buyback option exercised voluntarily by the enterprise is permitted)
The investor bears the burden of proving the lawful source and ownership of the capital, and where necessary, a promissory note for payment may be included in part.
Under the EB-5 reform legislation, in each fiscal year a portion of EB-5 visas is allocated to qualified immigrants who invest in certain sectors.
- Rural areas : 20%
- High-unemployment areas : 10%
- Infrastructure projects : 2%
Job Creation Requirements
Through the investment enterprise, an investor must directly create full-time positions (at least 35 hours of work per week) for at least 10 qualified employees.
[Types of Jobs]
- Direct jobs: An employer-employee relationship is established directly between the enterprise and the employee.
- Indirect jobs: Employment that arises externally as a result of the economic ripple effect of the project.
- Troubled business: For an enterprise experiencing management difficulties, maintaining existing jobs is also treated as job creation (a net loss for 2 years, with the loss amount equal to 20% or more of net worth).
- Eligibility for employment: U.S. citizens, permanent residents, or non-citizen immigrants authorized to work lawfully (excluding the investor, the spouse, children, and persons in nonimmigrant status)
4. Immigrant Investor Program (EB-5) | Application Procedure and Amendments
①Filing the I-526/I-526E Petition
A standalone investor files Form I-526, and a regional center investor files Form I-526E.
Approval may take an average of more than 2 years.
②Visa Application or Adjustment of Status
After approval of Form I-526, an applicant residing abroad applies for an immigrant visa through Form DS-260, while an applicant residing in the United States changes status to conditional permanent resident through Form I-485 (Adjustment of Status).
Conditional permanent residence is valid for 2 years.
③Filing Form I-829 to Remove Conditions
Beginning 90 days before the conditional permanent residence expires, the applicant files Form I-829 to apply for removal of the conditions. Full permanent residence is then granted.
Key Provisions of the EB-5 Reform and Integrity Act
The EB-5 Reform and Integrity Act includes the following key provisions.
- Strengthened mandatory reporting for regional centers and the introduction of a new audit requirement
- Strengthened verification of the source of an investor's assets
- A third-party audit requirement to ensure project transparency
- Priority visa allocation for targeted employment areas and infrastructure projects (rural 20%, high-unemployment areas 10%, infrastructure 2%)
- Unused visas are carried over for 1 year and, after 2 years, revert to general EB-5 visas.
5. Immigrant Investor Program (EB-5) | Points to Note When Preparing
An Immigrant Investor Program (EB-5) investor must thoroughly understand the laws and policies of U.S. Citizenship and Immigration Services and comply with all of the eligibility of capital, job creation, application procedure, and the integrity standards of the recent amendments.
Recently, cases of harm caused by investment immigration fraud have also been frequent, so cooperation with a reliable immigration attorney and a certified regional center is important.
If you have any questions regarding the Immigrant Investor Program (EB-5), our firm can assist you, with a task force composed of foreign attorneys advising on U.S. law (United States), foreign attorneys (United States), and immigration attorneys who also hold accountant qualifications, supporting the entire immigrant visa application process, from documenting the source of capital to local communication. Please contact us.
See More
Watch related video content
for this case study.
What is the survival strategy of domestic companies due to US protectionism?
