Overview

Steps

Documents

Lawful Source of Funds Requirement

Immigration Flow Chart

FAQs

 

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Overview of Visa Process

The rules governing the EB5 program are very complex and unlike any other Green Card program offered by the USCIS. In simplest terms, however, the process of obtaining permanent resident status through this program may be broken down into the three basic steps. 

Step #1   
File the Form I-526 Petition for Entrepreneur with the USCIS.
Sample approved I-526   

Step #2   
Obtain EB-5 immigrant visa at U.S. Embassy after completion of interview with Consular Officer.  Sample Visa Stamp  

Step #3   
Enter the United States and present the immigrant visa at the airport to obtain lawful permanent resident (“Green Card”) status.  

Completing each of these steps, however, requires careful preparation, planning and execution by the Immigrant, the EB5 visa lawyer and the DC Regional Center program manager.  Sample NVC Letter  

With the support of an experienced EB5 team, the immigrant will be skillfully guided in the process of collecting the required “lawful source of funds” documents, as well as required certificates (police, medical, birth and marriage).

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Steps

While the EB5 visa process has three major milestones there are, of course, many smaller steps which must be completed to reach the goal of residency. The below chart provides a more detailed overview of this process: 

Step

Immigration Process Chart

1

Immigrant carefully researches EB5 America program options to assess qualifications, timing and benefits.

2

If interested in participating and is otherwise qualified, Immigrant submits a preliminary application to EB5 America program managers.

3

Within 10 days, DC Regional Center managers complete a background check and eligibility test. If accepted into the EB5 visa program, the Immigrant is required to complete additional forms, collect records   and place capital into escrow.

4

Immigrant is assigned a highly skilled EB5 program visa lawyer that will prepare and file the comprehensive application package (Form I-526 "Immigrant Petition by Alien Entrepreneur") to the USCIS.

5

If Form I-526 Petition is approved by USCIS, the application is transferred to US Embassy in Immigrant’s home country. The Immigrant will then attend a visa interview at the Embassy conducted by a U.S. Consular Officer.  
If Form I-526 petition is denied by USCIS, all application support materials, including full amount of escrowed capital, are immediately refunded to the Immigrant - and case is closed.  

6

If the Consular Officer approves the case, the EB5 visa stamp is placed into the Immigrant’s passport (same for spouse and children). The immigrant and family must then enter the United States within 180 days of visa issuance, and upon first landing into America all receive conditional residency (conditional Green Card status) valid for 2 years.

7

As soon as the Immigrant and family make their first landing to America resulting in resident status, they are all free to live anywhere in the country, enjoy unrestricted travel/work rights.   

8

Within several weeks of landing, the USCIS will manufacture and mail out the actual “Green Card” but until this arrives in your mail box, the immigrant visa stamp in the passport serves as temporary evidence of residency. 

9

After 24 months, the EB5 program provides the Immigrant with evidence proving of job creation. The Immigrant’s visa lawyer then prepares and files the required Form I-829 “Petition to Remove Conditional Status” with the USCIS. This required application seeks to change the immigrant’s status from conditional to permanent Green Card status.

10

If the Form I-829 application demonstrates the required job creation then the USCIS will approved the case. The Immigrant and family members are then issued new “permanent” Green Cards without an expiration date.
If the EB5 program is unable to demonstrate required job creation, then the USCIS will deny the Form I-829 application and start proceedings to terminate the Immigrant’s residency.     

11

After 3 years, the Immigrant and family members may to apply for U.S. citizenship and U.S. passport.

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Documents

Coming Soon.

Lawful Source of Funds Requirement

The The EB5 program set forth several critical tests that the immigrant must satisfy in order to obtain residency. For example, we previously described one key requirement being job creation — specifically that each immigrant must create and preserve 10 jobs over a 24 month period. Another very important eligibility criteria set forth by the USCIS in the EB5 program is the “lawful source of funds” test.

When the EB5 program was originally created in 1990, the Congress was very worried that gangs and criminals would take some of their illegally obtained profits and use this capital to obtain an EB5 immigrant visa to the United States. As a result of this fear, the immigrant is required to prove to the USCIS that his capital is derived from lawful sources and not from illegal activities.

So a critical part of every EB5 visa petition requires that the immigrant fully document two key issues:

• The “lawful source of funds”
• The “Path” of the funds

If the EB5 visa petition does not clearly prove both of these requirements then the case will be denied by the USCIS. With the help of expert EB5 visa lawyers and the long track record of success by DC Regional Center, immigrant participating in our EB5 program receive guidance on the expectations of the CIS and what types of documents should be collected to meet this burden.

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What Exactly Are the CIS Rules On “Lawful Source” of Funds

Under the rules, the immigrant is required to demonstrate that has invested the full amount of his capital into the new commercial enterprise and that these funds were gained from a lawful source. Specifically, Section 204.6(j) of the rules provides:

A petition submitted for classification as an alien entrepreneur must be accompanied by evidence that the alien has invested or is lawfully in the process of investing lawfully obtained capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 qualifying employees.

Furthermore, the law requires the investor must:

(3) To show that the petitioner has invested, or is actively in the process of investing, capital obtained through lawful means, the petition must be accompanied, as applicable, by:

(i) Foreign business registration records;

(ii) Corporate , partnership, and personal tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind filed within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner;

(iii) Evidence identifying any other source(s) of capital; or

(iv) Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States within the past fifteen years.

Additionally, before the immigrant can file the EB5 visa petition with the CIS, he will also need to demonstrate his committed capital was received by the America business or at least received into escrow. Specifically, the EB5 laws provide as follows:

(2) To show that the petitioner has invested or is actively in the process of investing the required capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk. [Sic] Such evidence may include, but need not be limited to:

(i) Bank statement(s) showing the amount(s) deposited in the United States business account(s) for the enterprise;

But more than showing mere receipt of these funds into the escrow account, the USCIS requires records showing the PATH of the capital from the immigrant’s personal bank accounts to the escrow account. On this issue, the USCIS has stated: 

“A petitioner cannot establish the lawful source of funds merely by submitting bank letters or statements documenting the deposit of funds. Matter of Ho, 22 I&N Dec. 206, 211 (Comm. 1998); Matter of Izummi. Without documentation of the path of the funds, the petitioner cannot meet his burden of establishing that the funds are his own funds. Id. Simply going on record without supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof in these proceedings.”

Documenting the Lawful Source of Funds & Path

Under the EB5 rules, the immigrant’s capital can come from many different legal sources. For example, the funds can come from business ownership, sale of property, inheritance, gift, loan, or other sources.

Because there are some many ways to document lawful source of funds, there is no one specific formula or check list. Rather, the immigrant and his EB5 visa lawyer will simply use common sense when considering how best to document the lawful source of funds. Where funds are inherited, a will or trust forms are instructive. Where funds are earned from income on an investment, stock certificates, dividend letters, and account statements are vital. Where funds were earned from income on a previous business investment, the corporate tax returns for the business, complete with evidence of payouts to the owners, should be included.

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Immigration Flow Chart

The rules governing the EB5 program are very complex and unlike any other Green Card program offered by the USCIS. In simplest terms, however, the process of obtaining permanent resident status through investment may be broken down into the following ten steps. Given the complexity of the EB-5 immigration process, the EB5 Sugarbush Fund is proud to announce that it has secured a top immigration law firm in the United States – Visa Law Group based in Washington, DC - to assist all Investors and family members. With the full support and cooperation of the Fund, the investor’s legal team will manage all aspects of the Green Card process – from start to finish.

FAQs

Coming Soon.

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