Understanding the Role of USCIS in EB-5 Visa Applications

Updated: June 23, 2024

WRITTEN BY

EB-5 Insider Team

A group of professionals with years of experience helping people immigrate to the US

Note: This article is for informational purposes only. We are not providing legal advice or selling securities. The articles and content on this site are of a general informational nature only and should not be relied upon for individual circumstances.

USCIS administers the EB-5 Immigrant Investor Program, which was created in 1990 to stimulate the U.S. economy through foreign capital investment and create full-time jobs for qualifying U.S. workers. The role of the USCIS has evolved as the EB-5 program has undergone reform and legislative changes.

The most significant changes to USCIS’s role in EB-5 visa applications came as part of the EB-5 Reform and Integrity Act (RIA), signed into law by President Biden in March 2022 as part of the Consolidated Appropriations Act. This reform created new requirements for the EB-5 visa and Regional Center Program. USCIS was already responsible for designating regional centers, but this reform expanded its role to include oversight.

Under the EB-5 Program, USCIS will determine whether a foreign investor and their spouse, including any qualifying dependents, qualify for a green card and permanent U.S. residency after making a necessary investment of at least $800,000 and creating or preserving at least 10 full-time jobs for U.S. workers.

We’re discussing the role of the USCIS, its key responsibilities, and how it evaluates EB-5 applications.

What is USCIS’s Role?

The EB-5 Program was created in 1990 to help stimulate the U.S. economy by offering foreign investors an easier way to acquire permanent U.S. residency through investment. The Regional Center Program was launched in 1992, setting aside EB-5 visas for foreign investors who invest in commercial enterprises associated with USCIS-approved regional centers.

Each step of the EB-5 application process is submitted to USCIS, which will review it per the program’s requirements. They’ll determine whether a legally obtained source of funds funded the investment and whether the EB-5 project is feasible and capable of creating or maintaining at least 10 full-time jobs for U.S. workers.

The USCIS will determine whether the EB-5 project qualifies the investor and their family to receive a temporary green card. Suppose the conditions of the EB-5 program are determined to have been met during the conditional residency period. In that case, USCIS will issue the applicant and their dependents permanent residency and a green card that can be renewed every 10 years. Reforms introduced as part of RIA have expanded the USCIS’s role regarding regional centers, including giving them responsibility for oversight to ensure compliance and conducting on-site audits at least once every five years.

Key Responsibilities and Functions for EB-5 Applications

The USCIS is involved at every significant stage of the EB-5 application process as they are responsible for approving petitions. They may request additional evidence or an interview if they have cause for concern with your application.

The USCIS is involved in the following parts of the application process:

  • When an EB-5 investor files Form I-526 (Immigrant Petition by Standalone Investor) or Form I-526E (Immigrant Petition by Regional Center Investor). Suppose an immigrant visa is immediately available for an investor. In that case, they will also process Form I-485 (Application to Register Permanent Residence or Adjust Status), which can be done concurrently with the other two forms while pending or after their approval.
  • USCIS provides the most up-to-date information on EB-5 visas in its Visa Bulletin, which includes visa availability and priority dates.

Following the Form I-526/I-526 approval:

  • Investors will submit a DS-260 to the Department of State and file a Form I-485 with USCIS to adjust their status to conditional permanent resident. When USCIS approves, investors can reside on a conditional green card for two years in the United States.
  • An EB-5 investor will then be required to file a Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) to USCIS within 90 days immediately before the expiration date on their conditional green card.
  • If USCIS approves the petition, it will issue the investor a renewable permanent green card every ten years.

USCIS is also responsible for designating regional centers. If an entity seeks regional center designation, it must submit a Form I-956 (Application for Regional Center Designation) to USCIS, which must include a Form I-956H (Bona Fides of Persons Involved with Regional Center Program) for each person involved in the regional center. Each person must attest that their information is correct and that they follow the Immigration and Nationality Act.

When USCIS approves the designation application, the regional center must file a Form I-956F (Application for Approval of an Investment in a Commercial Enterprise) for each new investment offering it intends to sponsor. An EB-5 investor involved in that regional center project can then submit a Form I-526E.

How USCIS Evaluates EB-5 Petitions

There are five criteria that USCIS uses to evaluate EB-5 petitions throughout the visa application process.

Sufficient Investment Amount

USCIS will use the I-526 petition submitted by the applicant to determine if they have made the minimum required capital investment into a qualifying business enterprise or regional center. Projects within a targeted employment area (TEA) have a lower investment threshold of $800,000, while projects outside a TEA have a minimum investment of $1,050,000. USCIS will also assess if the capital is irrevocably committed to the project and if it remains ‘at risk’.

Capital is Lawfully Obtained

USCIS will determine if the investor’s capital has been lawfully obtained through legal sources. They will inspect the evidence provided to follow the funding path, from how the investor acquired it to how it was provided to the EB-5 project. If they cannot determine the source or path of funding, USCIS may require additional evidence from investors.

Determine if the Capital Was Invested In an NCE

The USCIS will use the I-526 petition to determine if the capital was invested in a new commercial enterprise or a project connected to a regional center. The NCE must be a for-profit entity conducting a lawful, ongoing, commercial business activity and has been established after November 29, 1990.

Job Creation Requirement and Business Plans

USCIS will assess the business plan the investor or regional center submitted to determine its feasibility. It must meet EB-5 requirements and may be re-submitted for USCIS approval if considerable changes are made to its structure or operation. By reviewing the evidence submitted, USCIS will determine if the investor has met their EB-5 requirement of creating at least 10 full-time jobs for qualifying American workers.

For new commercial enterprises, the ten full-time positions must be created directly within the company as permanent roles with at least 35 working hours per week. USCIS will assess the I-526 petition to determine if the jobs have been created or will likely be created within a reasonable time.

The ten full-time positions can be created directly or indirectly for investments in regional center projects. Indirect jobs are those created because of the investment’s wider economic stimulus, including the money new employees are now spending in the local area.

Determine If an Investor is Actively Involved

The EB-5 Investor Program requires investors to be actively involved in managing the new commercial enterprise. Within a regional center project, they must demonstrate that they attend board meetings and necessary votes. USCIS will determine if an investor is actively involved in an NCE with day-to-day involvement and if it is a direct investment or on a board level for regional centers.

USCIS Recent Updates and Changes

Congress passed the EB-5 Reform and Integrity Act of 2022 (RIA), which saw significant updates to the involvement of the USCIS. The RIA was introduced to provide more transparency and oversight to the EB-5 process with protection for investors.

USCIS must audit each designed regional center at least once every five years. This audit will require USCIS to review any documentation required to be held and maintained by the regional center and review the flow of capital into the investment projects. These audits aim to improve the integrity of the EB-5 program to verify further the information provided in regional center applications and associated investor petitions.

RIA established a special fund, known as the ‘EB-5 Integrity Fund’, which must be used by the Department of Homeland Security to:

  • detect and investigate fraud and other crimes
  • determine if those involved in EB-5 investor visas are complying with U.S. immigration law
  • conduct site visits and audits

Each regional center must contribute at least $10,000 annually to the integrity fund, which provides USCIS with the resources it needs to fulfill its oversight responsibilities. In-person visits have been introduced to prevent the misappropriation of investor funds and fraud by ensuring that the report business activities are taking place.

USCIS performs more extensive background checks on those working in the EB-5 industry as part of these reforms. A person with criminal convictions within the last 10 years cannot be associated with a regional center, and anyone with a fraud case over $1 million is prohibited from participating in the Regional Center Program.

Gain U.S. Permanent Residence Through Investment

If you have the capital to make the required $800,000 investment, an EB-5 visa is the most efficient way to achieve permanent residency and U.S. citizenship.

EB-5 Insider simplifies your path to U.S. residency and citizenship through investment, working with foreign nationals internationally to streamline the application process. We’ll help you obtain a permanent U.S. green card for yourself, your spouse, and any unmarried children under 21 for an investment of $800,000.

Start applying for an EB-5 visa today, or contact our team for more information.

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