One of the most common myths, is the process of applying and being accepted for an EB-5 visa is quick and straightforward. Unfortunately, this is not the case. The application process involves filing Form I-526 (Immigrant Petition by Alien Entrepreneur), then awaiting an approval before being able to submit the next, Form I-485 (Application to Register Permanent Residence or Adjust Status) to receive a conditional permanent residence within the US. Alternatively, for those living overseas, they will need to file DS-260 (Application for Immigrant Visa and Alien Registration) before seeking admission to live within the USA. Once approved, the investor and their family members will receive permanent residence, valid on a conditional basis for two years.
What can slow this process down is the collation of supporting evidence. Investors must present proof they are actively in the process of investing in a for-profit commercial enterprise, or that they have previously invested. Further, potential investors must show evidence they will be engaged in the management of the commercial enterprise, and proof they have invested, or are actively investing, the required amount of capital (the required capital is outlined below). This particular evidence will need the investor to show business registration records, tax returns filed within five years, identifying evidence of any other source of capital, and presenting certified copies of any pending governmental administrative proceeding, private civil actions, and criminal actions which have involved money against the investor within the past 15 years. It’s important to note that this evidence is required whether it took place within the United States or not. Therefore, potential investors with private civil actions pending in their native country must declare it. Likewise, investors are required to present tax returns whether they were filed in the USA or the native country.
It is estimated that this process of collecting the correct evidence and preparing the application can take up to one month. Therefore, it’s highly recommended to work with an EB-5 visa expert in the United States to ensure your application is up to par and submitted on time.
There is a lot of information online regarding the wait time specific nations face before being able to apply for an EB-5 visa. Chinese nationals, for example, face an extraordinarily long waiting period of a projected 14 years. While this is concerning for many countries looking toward the Great American dream, thankfully it is relatively shorter for Indian citizens. Currently, the EB-5 visa wait time in India doesn’t face any backlog, despite some firms claiming their system can beat the apparent delay for applications. In reality, once an applicant’s immigration attorney submits their Form I-526, the process can take as little as 20-26 months to receive notification it’s been approved (based on current averages from the USCIS website). What’s more, once this petition is complete, the investor can apply for U.S. residential status; you can do so by filing Form I-485 to adjust your status (if you’re already in the USA), or DS-230 if you’re living overseas. It should be noted however that the state department, through Charles Oppenheim, said in October last year that retrogression for Indian nationals will happen sometime in 2019 and the projected wait time for a visa to be available for an Indian investor would then be 5.7 years.
There’s no denying that EB-5 does present an incredible opportunity for investors to receive an American Green Card. However, some firms claim this visa program is a fast track, when, in reality, it can take some time depending on what the current USCIS processing times might be at that given time. There might be several reasons why a Green Card may be denied to an investor, but generally, as the EB-5 visa is issued, investors rarely see delays at this point.
For family members of the investor that may be eligible for a Green Card, there is criteria which must be followed. The family member must be a spouse or unmarried child of the principle EB 5 visa applicant (the investor), be physically present in the US when the form is filed, and there are no reasons why the applicant would be barred, which can include multiple criminal convictions.
It’s crucial to note that, to be eligible for American citizenship, the investor must have held lawful permanent resident status for five years.