The author’s views are entirely his or her own and do not represent legal advice or council.
EB-5 visa applicants face an uphill battle in today’s political climate. In this week’s Plan Friday, Brent explains how to give yourself the best shot at getting an EB-5 visa application approved.
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For wealthy investors, the EB-5 program is a highly desirable way to get a green card. Once your application is approved, you and immediate family can live in America for a 2-year conditional period. After that, you can apply for your permanent green card. Pretty sweet, right?
But the program has come under public criticism in the past several years. It desperately needs to be fixed. Right now, you have to invest $500,000 to $1 million and create at least 10 full-time, permanent jobs. The Department of Homeland Security has proposed raising the investment minimums, but nothing has been done yet. Congress keeps re-authorizing the program for six-month periods, which is not a long-term solution.
Meanwhile, applicants are under a lot of scrutiny. Requests for evidence, or RFEs, from USCIS have increased by 45% during the current administration. Getting an RFE can be time-consuming and expensive. It means USCIS requires documentation from you before they approve your application.
The good news is, you can still get an EB-5 visa after you get an RFE. Here are some best practices to help you avoid getting one in the first place, and get your visa application approved.
#1 Invest Enough Money
First of all, you have to invest $1 million, unless you have official documentation that your company will be in a designated TEA. The TEA must either be a rural area or have 50% higher unemployment than the national average. If it’s an official TEA, you can invest $500,000 instead of $1 million.
#2 Make Sure It’s “At-Risk” Investment
Your investment must be what USCIS calls “at risk,” which is money allocated for your business that you have no guarantee of getting back. This also must be money you obtained legally--and yes, USCIS will check. If you don’t show proof, they’ll ask for it. I have another video that explains what “at risk” investment is in more detail and how to show it.
#3 Job Creation
You also have to prove you have created 10 permanent jobs within approximately 2 years of getting your conditional visa. These have to be full-time jobs held by American citizens, lawful permanent residents, or other people authorized to work in America. It doesn’t count if it’s a job held by you, your spouse, or your kids. These jobs cannot be seasonal, temporary, or contract positions.
The best way to demonstrate projected job creation is to include a detailed monthly hiring timeline in your business plan. You need to spell out the job title, salary, and month in which you plan to hire each of the 10 people within the first 2 years. I actually tell people they should plan to hire at least 11 or 12 full-time employees, just to be on the safe side.
#4 Create a Solid Business Plan
A business plan is required for the EB-5 visa. The USCIS policy manual explains something called “Matter of Ho,” which was a 1998 decision mandating a “comprehensive and credible” business plan for EB-5 applicants.
To be “comprehensive and credible,” you need a strong market analysis and financials. Your business plan should explain who your 3-5 biggest competitors are, as well as their strengths and weaknesses. (And yes, you have to be more specific than just saying “They’re all garbage.”) Include both direct and indirect competitors. Your market analysis should also include relevant, recent data about your industry. It doesn’t have to be long, but it does need to be detailed.
As for your financial projections, USCIS wants to see the assumptions underlying your income forecasts. For that, you’ll need industry averages for your type of business, as well as the market research I just mentioned. And make sure your staffing projections line up with your financial forecast.
Feeling overwhelmed yet? You’re not alone if this sounds daunting. Work with an experienced business plan company like Masterplans as well as an experienced immigration attorney to ensure your business model and plans are solid.
Let’s end with a quick story. One foreign entrepreneur was seeking an EB-5 visa through direct investment. She invested $500,000 to renovate and reopen a failed hotel in a TEA in the Midwest. To demonstrate the required job creation, she prepared a thorough staffing projection based on industry standards for a small hotel. Her conditional EB-5 visa was approved, and her attorney is now working on her permanent green card!
Disclaimer: The information in this blog post is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your situation. Consult with legal and financial experts before making financial investments.
Brent Butler is Masterplans’ founder and CEO.