The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
We generally discuss with prospective investors four options available to them under U.S. immigration laws:
- L-1 (Intracompany transferee),
- E-2 (Treaty Investor – only available for nationals of certain countries),
- Individual EB-5, or
- Regional Center EB-5.
The L-1 and E-2 options, being nonimmigrant visa options, enable the investor to get to the U.S. quicker than the EB-5 options, which are permanent residence options. The L-1 and E-2 options do allow for permanent residence ultimately, through the multinational manager immigrant process, but only if the investor maintains business operations outside of the U.S. and only after U.S. business operations have been ongoing for at least one year.
The following is a checklist of questions to guide the investor in discussing with immigration counsel the best option to meet the investor’s particular needs:
- Do you want to start a new business in the U.S.?
Yes – Individual EB-5 or L-1 (E-2)
No – RC EB-5 - Do you intend to keep your overseas business in operation?
Yes – L-1 (E-2)
No – Individual or RC EB-5 - Do you want to buy an existing business?
Yes – Individual EB-5 or L-1 (E-2)
No – RC EB-5 - Do you expect your U.S. business will have at least 10 employees at the time of filing?
Yes – Individual EB-5
No – L-1 (E-2) or RC EB-5 - Do you want to invest at least $500,000 in the U.S.?
Yes – Individual or RC EB-5
No – L-1 (E-2) - Is your main goal to get a green card or to do business in the U.S.?
Green Card – RC EB-5
Do business in the U.S. – L-1 (E-2) or individual EB-5 - Is finding the quickest way to get to the U.S. the top priority?
Yes – L-1 (E-2)
No – individual or RC EB-5 - Is being able to live in the U.S. your top priority?
Yes – RC EB-5
No – L-1 (E-2) or individual EB-5
A detailed chart comparing the four options using different criteria that may be relevant or critical to the individual investor follows:
E-2 | L-1 | Regional Center EB-5 | Individual EB-5 | |
Amount of investment | Not quantified, but usually over $100,000 (must be “substantial”) | Any amount | Usually $500,000 | $500,000 or $1,000,000 |
Must Create Jobs? | Can be small (no exact number) | Can be small | 10 direct or indirect jobs | 10 direct jobs |
Investors’ Employment | Manager or essential skills, unless investor | Manager or Specialized Knowledge | Limited partner or member of LLC | Equity; engaged in business |
Timing | 1-6 months | Can be < 15 business days with premium processing | Average 14 months plus adjustment of status or immigrant visa | Average 14 months plus adjustment of status or immigrant visa |
Procedure | Can go direct to consul | CIS 1st, unless blanket | CIS, then consul or I-485 | CIS, then consul or I-485 |
Can your spouse work? | Yes | Yes | 3 months after I-485 or upon approval of CPR | 3 months after I-485 or upon approval of CPR |
Permanent Residence | Can file EB-1 after 1 year if qualify as multinational manager | Can be EB-1 after 1 year | File after I-526 approved | File after I-526 approved |
Can family/investor attend school? | Yes | Yes | In-state tuition sooner | In-state tuition sooner |
Employment authorization | Immediate | Immediate | 3 months after I-485 or when enter as CPR | 3 months after I-485 or when enter as CPR |
Can investment be a gift? | Can be problem | Yes | Yes | Yes |
Can investment funds be a loan? | Enterprise cannot be collateral | Yes | Enterprise cannot be collateral | Enterprise cannot be collateral |
Expedite | Depends on consul or premium process | Premium Process | Rare | Rare |
Relevance of country | Only national of treaty country | Not relevant | Source and tracing of funds may vary by country | Source and tracing of funds may vary by country |
Necessity of overseas company | No | Yes | No | No |
Buying existing company | OK | OK | No | Must add 10 jobs |
Geographical area | Any | Any | Rural/high unemployment area for $500,000 | Rural/high unemployment area for $500,000 |
Prior employment overseas required? | No | Yes, 1 year | No | No |
Initial length of visa | Up to 5 years | 1 year start-up | 2 year conditional permanent residence, then permanent residence | 2 year conditional permanent residence, then permanent residence |
Maximum period | Unlimited extensions available | 5 or 7 years | Permanent | Permanent |
We look forward to helping to choose the best option for each individual and his/her family.
