…And the Return of the EB-5 Investor Visa
In the United States, real estate investment opportunities abound. International real estate buyers can earn profits and bolster the U.S. economy at the same time. Some people invest from outside the borders. Some investors hope to live in the United States.
If you wish to invest in U.S. real estate from a distance, or to learn about mortgages for international buyers, check out our guide for Foreign Nationals Buying U.S. Real Estate.
If you are thinking of purchasing U.S. real estate and gaining residence as well, read on. We’ll start with a broad-brush Q&A. Then we’ll get into the investment visa and the eligibility rules as of 2021.
Frequently Asked Questions: Here’s What People Are Asking About Immigration by Real Estate Investment
Q. Can I get legal permanent resident (LPR) status by buying U.S. real estate?
A. Not exactly. Without more, owning property in the United States won’t earn you a visa or immigration benefits. But investors can get LPR status by funding U.S. real estate projects.
Q. What about the EB-5 Investor visa? Does it pertain to investments in U.S. real estate?
A. That’s the one. It’s often called the cash-for-visa provision. In return for their investments in major projects that improve properties and bolster the U.S. economy, EB-5 petitioners are granted immigrant visas for themselves and their spouses, plus their unmarried children under 21.
The status of the EB-5 visa has experienced political volatility. Before November 2019, you could qualify for permanent residence as an EB-5 immigrant investor by injecting $1 million into a U.S. business, or you could do it with $500,000 for a business in a Targeted Employment Area (TEA). In 2019, the U.S. government raised the minimum funding amount. From that point on, an investor would have to put $1.8 million into a business, or $900,000 in a targeted employment area. TEA criteria became stricter, pressing the investors to select truly distressed and rural development projects. That made investments in, say, Palm Springs, Washington, D.C. or New York City real estate a lot tougher to do.
Q. Didn’t a judge just decide the entry barriers are too high? Have the lower minimum investment amounts been reinstated?
A. You’re right on top of it. And the lawsuit was brought by a real estate investment company: Colin Behring, CEO of Behring Companies. On June 22, 2021 the federal judge presiding over the case struck down the 2019 investment amount hikes, stating that the acting U.S. Homeland Security Secretary at the time had been improperly appointed. This new ruling has effectively restored the previous rules that didn’t require investor-immigrants to spend so much.
Watch for further legislative debate on the EB-5 rules. Iowa’s Republican Senator Chuck Grassley and Vermont’s Democratic Senator Patrick Leahy are keen to steer more investment to rural regions. Meanwhile, other senators from both major political parties are trying to relax the qualifications for the EB-5 visa, to make it easier to draw investments.
Q. What are the basics of the process?
A. You’ll need an EB-5 approved commercial real estate project. A personal residence doesn’t qualify. You’ll collect supporting documentation, invest your funds, and file your petition. If it’s approved, you’ll get a two-year conditional green card. During that time, you’ll invest the funds and create a need for at least ten U.S. jobs.
After you meet the requirements in the two-year period, you’ll be ready to file the petition to remove the conditions on your status, and receive a 10-year green card (legal permanent residence). You can continue to maintain your permanent resident status for good by keeping your green card up to date. After five years as a legal permanent resident in the United States, you and your family can become U.S. citizens if that’s your goal.
To see the full and updated rules, read the current Policy Manual from U.S. Citizenship and Immigration Services (USCIS).
Q. Is there a waiting period to immigrate as an investor?
A. Once the U.S. government receives the EB-5 petition package, the investor-petitioner has established a priority date. EB-5 visas go to 10,000 applicants annually. Immigrants from one country can only be approved for 7% of the quota. There are long approval waits for people petitioning to immigrate from some countries, including China and India.
While you’re waiting, you might have options, such as a temporary work authorization. Speak with an experienced immigration attorney to find out. And keep your attorney informed about your travel plans. If you seek permanent residence, take care to avoid visa mistakes now that could impact your case later.
Q. Do I really need to hire a lawyer to achieve my immigration goals?
A. Technically, you could do it yourself. Don’t. There are many nuances and potential changes to the rules that a brief guide cannot cover, but your lawyer will. Lawyers who work with investor immigrants are good at sensing what the U.S. government will reject and what it will accept. They also have the staff and informational resources to see you through the administrative processes.
Start by setting up initial, free consultations (in person, by phone, or with an electronic meeting platform such as Zoom) with more than one immigration attorney. Select the best one to take on your case. Your attorney’s office can see you through every stage of the petition process — even the initial stage, when you’re selecting the right investment opportunity to succeed with your petition.
You might wish to have a lawyer in the area where you’ll live and work, so you can develop an in-person relationship, but this is not necessary. You’ll be doing most of your collaborating remotely in any case. When trying to decide between lawyers, look for members of AILA — the American Immigration Lawyers Association.
Q. Is this a costly process, putting aside the cash investment required?
A. It’s a very high-cost undertaking. There are your investments, and the administrative fees for those investments. There are fees for your immigration law firm. There are government fees for biometrics and reviewing your paperwork. The government fees alone run upwards of $9,000.
You might be wondering if selecting an attorney with the most reasonable fees will help you budget for this process. Decide carefully. An experienced attorney will strengthen your case and work through any problems. Note that immigration law is a special area of federal practice, and the EB-5 process is more specialized still. Not every immigration law firm has substantial experience with investor visas. To optimize your chances of a smooth process and a successful outcome, choose a firm that handles investor visas in the regular course of its business.
Earning a Green Card Through the EB-5 Visa: What Are the Rules?
The United States offers two tracks for investors who intend to live in the United States.
The Basic Program: Immigrants may invest in real estate in order to create or improve a business. The investment doesn’t only fund the real estate; it should also have a connection (“nexus”) to the creation of at least 10 full-time jobs for U.S. employees and cover the costs of operations. The arrangement offers multiple sources of profit for the immigrant through property value appreciation and various forms of business income, including rental proceeds from multi-unit residences or commercial properties.
The adventure is not without risk. With the basic EB-5 investment, you must risk and spend your investment, and you must be involved in the business operations.
Regional Center Pilot Programs: The government-approved regional center is a kind of broker for immigrant partners. The investments, in which the immigrant investors take an ownership stake, can include hotel and restaurant properties, offices and shopping malls, condominium complexes and many other types of sites. Immigrant investors take earnings, but are generally not involved in construction or titling processes. Administrative fees to enter these projects run into the tens of thousands of dollars.
Note: Authorization for regional centers is close to its sunset date at our time of publication, so ask your attorney for an update on that.
If You’re Financially Prepared, You Can Get Legal Permanent Residence by Real Estate Investing.
Impressively (and controversially), EB-5 investment helped bring New York City’s Hudson Yards into existence. It’s an expensive route to residence, and more complex than simply buying property. But thousands do it every year. With the EB-5 visa option, they’re able to place themselves and their families on track for residence and even citizenship in the United States.
Important note: The information in this article is for a general readership, and should not be understood as immigration law or investment advice. Every case is unique. Seek investment and immigration experts for expert guidance in reaching your goals.
8 CFR Section 204.6 (e).
U.S. Citizenship and Immigration Services (USCIS) Policy Manual.
Michelle Hackman and Konrad Putzier for the Wall Street Journal: Trump Rule Tightening EB-5 Visa Program Struck Down by Federal Judge (Jun. 23, 2021).