The first step in becoming a U.S. citizen through the EB-5 Program is to gain lawful permanent resident status, which requires making an eligible investment and filing Form I-526. Upon I-526 approval, the foreign national is granted conditional permanent residence, which is identical to lawful permanent residence except that it is conditioned on the successful completion of the EB-5 Program. After two years of conditional permanent resident status, the investor files Form I-829 to remove conditions—which will be adjudicated based on whether the EB-5 investment was sustained and the employment creation requirement was met. If Form I-829 is approved, the EB-5 investor will be able to apply for naturalized citizenship four years and nine months after first receiving conditional permanent resident status—assuming all other requirements are met.

I-526 petition delays can simply be due to the backlog of pending applications, but other common reasons for delay can involve authenticating the investor’s lawful source of funds, verifying that the necessary investment was made and is truly at risk, and the need for additional documentation. Generally speaking, petitions are denied due to noncompliance with the EB-5 Program.

Whether or not an EB-5 investor is returned his or her investment—either upon I-526 petition denial or EB-5 visa denial—will depend entirely on the subscription agreement between the investor and the regional center. Many regional centers offer a return of the investment if an investor’s I-526 petition is denied; however, regional centers are unlikely to return capital if the investor’s EB-5 visa is denied due to inadmissibility. Potential EB-5 investors should carefully review the subscription agreement before signing and investing in a project.

The best way to discover whether or not an immigration attorney is affiliated with a regional center is simply to ask. An investor should ask if the attorney is affiliated with, compensated by, or working for a regional center. If a regional center offers a list of recommended attorneys, this does not necessarily indicate affiliation. Regional centers tend to prefer working with attorneys they know have the necessary experience to navigate the complexities of the EB-5 Program.

The first professional a potential EB-5 investor should consult is an immigration attorney with EB-5 experience. After discussing the investor’s goals and plans, the immigration attorney will be able to recommend other professionals as needed, which may include securities counsel, a business plan writer, an accountant, and possibly others.

An EB-5 investor should retain a U.S. immigration attorney with EB-5 experience to prepare his or her entire I-526 petition and all supporting documentation—which includes the source of funds documentation. A qualified attorney will be able to help the investor compile the necessary evidence for establishing lawful source and path of funds.

Interview questions generally relate to personal information (e.g., name, date of birth, relationship to the principal applicant, etc.), employment history, civil and police records, and basic information about the EB-5 investment. The principal applicant should review the cover letter, memorandum, and source of funds document that were submitted to USCIS. In order to be better prepared for the interview, it may be prudent to retain immigration counsel.

The only interview that occurs during the EB-5 visa process is after the I-526 petition is approved and the investor files for conditional permanent resident status with the National Visa Center. The interview will be scheduled by the U.S. consulate in the investor’s home nation. The investor and each family member applying for a conditional green card (except children under 14 years old) will be interviewed.

Yes, the early repayment of a loan used to fund an EB-5 investment will have no effect on the investor’s EB-5 case.

Other than serving as the location of a new business that creates the number of jobs required by the EB-5 Program, real estate itself does not qualify as a form of capital for EB-5 investment purposes. The real estate could, however, be used to secure a loan, which could then be used in an EB-5 investment.

Money gifted to a foreign national from someone in the United States can be used as EB-5 investment funds as long as the gift is accompanied by a deed of gift, is transferred legally, and can be traced to a lawful source.

The key issue when dealing with gifted funds is demonstrating that the funds in question are, in fact, the investor’s funds. It is generally better to have a gift be deposited into the investor’s account and then transferred to the project’s escrow account, but this is not required. In either case, the investor must be able to clearly show lawful source and transfer of funds.

If an EB-5 project has an escrow account set up for EB-5 funds, investors will likely be required to have all investment funds and any administrative fees transferred before their I-526 petitions are filed. USCIS also expects investors’ funds to be irrevocably committed to a project when adjudicating Form I-526.

If an investor wants to use funds for an EB-5 investment, the source of those funds will be required by USCIS. Without direct, primary evidence, an investor may be able to demonstrate lawful source of funds through secondary evidence and a totality of the circumstances. A sworn affidavit explaining where the funds originated may be suitable in certain circumstances. Because lawful source of funds is a key requirement of the EB-5 Program, it is important to retain an experienced EB-5 immigration attorney to help compile the necessary documentation.

The specific details of every EB-5 case are different, but generally speaking, if an EB-5 investor fully complies with all EB-5 laws and regulations and has his or her I-526 petition prepared by competent counsel, the likelihood the petition will be denied is relatively low. The success of an I-526 petition ultimately depends on whether the investor can prove he or she made the necessary investment using lawfully obtained funds, and that the investment is or will be responsible for creating ten new full-time jobs.

The time it takes for an investor to obtain an EB-5 visa depends on several factors. First, the investor must find a suitable project, conduct sufficient due diligence, make an investment, and prepare the I-526 petition—all of which may take several months to complete. The processing time for I-526 petitions is more than a year; upon I-526 approval, the investor will have to apply for the visa, which is usually issued within six months. An EB-5 investor should expect it to be two years or longer before he or she obtains the EB-5 visa.

The amount of risk involved in an EB-5 investment depends wholly on the project and, if applicable, the regional center. While all EB-5 investments must be considered “at risk” in order to comply with the EB-5 Program, careful due diligence should be conducted to determine how much financial and immigration risk a given project carries. Good projects carry virtually zero immigration risk and very little financial risk; others may be quite risky. Consulting qualified, third party professionals—such as due diligence experts and immigration attorneys with EB-5 experience—can help investors navigate the EB-5 market to find low-risk projects.

The primary concern for permanent residents travelling abroad is whether they can clearly demonstrate to USCIS their intent to permanently reside in the United States—this is accomplished by establishing obvious ties to the United States, such as family, housing, employment, bank accounts, etc. Travel frequency is less of an issue than length of time spent abroad—any absences of six months or more will raise a rebuttable presumption that permanent resident status has been abandoned. Absences of more than a year require a re-entry permit.

At no time during the EB-5 process is an EB-5 investor required to be in the United States. All communication between the investor and his or her attorney can take place via phone, email, etc., and the attorney will be able to handle the process on behalf of the investor. Physical presence is required only after the investor receives permanent resident status.

The key issue is whether the green card holder can demonstrate that he or she intends to permanently reside in the United States. Extended absences can result in the assumption that the lawful permanent resident has abandoned his or her status. Generally speaking, if a green card holder stays out of country for six continuous months or more, he or she will need to prove intent to remain a permanent resident of the United States and may need to obtain a reentry permit.

The conditional permanent resident status granted to an EB-5 investor upon approval of Form I-526 gives the immigrant all the rights and privileges of permanent resident status, including the right to work, live, and study anywhere in the United States. The main distinguishing characteristic of the conditional status is that it is effective for only two years, and at the end of this two-year period, Form I-829 must be submitted to remove the conditions from the status.

The laws and regulations of the EB-5 Program do not stipulate any age requirement or limit. Age is only a factor as it relates to signing contracts; if an applicant is younger than 18, he or she cannot sign a legally enforceable contract. It may be possible for someone under age 18 to have his or her legal guardian co-sign the paperwork.

The age of an EB-5 applicant is only a factor if the investor cannot legally execute a binding contract. Generally speaking, this means the investor must be 18 years old or older—but there is no upward age limit.

The current adjudication time for I-526 petitions is about 14–16 months. Once Form I-526 is approved, the investor must either have his or her status changed (if already in the United States) or go through the visa application process through his or her nation’s consulate or embassy. The application to adjust status (for those in the United States) is typically approved within 12–18 months. The visa application process with the National Visa Center (NVC), on the other hand, generally takes between 6–12 months. Once conditional resident status is granted, the foreign investor can apply for permanent resident status two years later through Form I-829.

There is no specific limit to the number of family members who can apply for EB-5 visas as derivatives; however, the only family members eligible as derivative beneficiaries are the principal applicant’s spouse and any unmarried children under age 21 at the time the I-526 petition is filed.

The child of an EB-5 investor may be included as a derivative beneficiary as long as he or she is unmarried and under age 21 when USCIS receives the I-526 petition. Note, however, that this issue becomes more complicated for the children of Mainland-born Chinese investors due to visa retrogression. For EB-5 purposes, a child’s age is frozen while the I-526 petition is pending, but this is not the case while waiting for an available visa.

Typically, all derivatives apply for the EB-5 visa and green card at the same time as the principal applicant. This application process takes place after the I-526 petition is approved.

Once an EB-5 investor and his or her derivative beneficiaries have obtained conditional permanent resident status, they may live, work, and study anywhere in the United States. The right to study in the United States does not necessarily mean access to resident tuition rates—the residence requirements for in-state tuition vary by state.

The first step in becoming a U.S. citizen through the EB-5 Program is to gain lawful permanent resident status, which requires making an eligible investment and filing Form I-526. Upon I-526 approval, the foreign national is granted conditional permanent residence, which is identical to lawful permanent residence except that it is conditioned on the successful completion of the EB-5 Program. After two years of conditional permanent resident status, the investor files Form I-829 to remove conditions—which will be adjudicated based on whether the EB-5 investment was sustained and the employment creation requirement was met. If Form I-829 is approved, the EB-5 investor will be able to apply for naturalized citizenship four years and nine months after first receiving conditional permanent resident status—assuming all other requirements are met.

An EB-5 investor may apply for U.S. citizenship after 4 years and 9 months in the United States. This period begins when the investor is granted his or her conditional permanent residence and is noted on the investor’s green card. The investor must also meet certain other requirements, such as being physically present in the country at least 50% of the time and not abroad for any period of more than six months.

Tax residence is not the same as permanent residence, and determining when an immigrant’s tax obligation in the United States begins can involve some level of complexity. Generally speaking, however, a person becomes a resident for tax purposes after both gaining permanent resident status and physically residing in the United States for six months.

A conditional green card holder has conditional permanent resident status, which affords the immigrant all the rights granted to permanent residents. A conditional green card holder may live and work anywhere in the United States, and he or she may enrol in education programs as a domestic student.

No, a lawful permanent resident is in no way required to pursue the naturalization process. There are benefits to gaining citizenship, and so those who are eligible should consider applying—but doing so is optional.

The conditional green card issued based upon I-526 approval is valid for two years and must be renewed annually after that until I-829 adjudication. The standard green card must be renewed every ten years.