We’re modernizing the EB-5 Immigrant Investor Program through investment in real estate development.
Under a new rule published by the U.S. Department of Homeland Security, several changes to the EB-5 Immigrant Investor Program went into effect Nov. 21, 2019.
Alert: On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF). While USCIS considers this decision, we will apply the EB-5 regulations that were in effect before the rule was finalized on Nov. 21, 2019, including:
Real Estate Investors and entrepreneurs ask immigration lawyers if they can obtain green card through investment in real estate?” The answer is: “it depends and yes”
About the EB-5 Visa Classification
Real Estate EB-5 Immigrant Investor Program, stimulates the U.S. economy through job creation and capital investment by foreign investors. Under a program, real estate investors may qualify for EB-5 classification by investing through real estate development projects.
An EB-5 Real Estate investor must invest in a new commercial real estate enterprise.
Only purchasing a property does not qualify the EB-5 requirements but purchasing a property and running business may meet the requirements. Purchasing a property or land then developing and creating jobs may meet the EB-5 requirements.
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business, including:
A sole proprietorship;
Real Estate Partnership (whether limited or general);
Holding Real Estate company;
Real Estate Joint venture;
Real Estate Corporation;
Real Estate Business trust; or
This definition includes a real estate commercial enterprise consisting of areal estate development holding company and its wholly owned subsidiaries, if each such subsidiary is engaged in a for-profit real estate activity formed for the ongoing conduct of a lawful real estate development business.
This definition does not include noncommercial activity, such as owning and operating a personal residence or real estate.
An EB-5 real estate investor must invest the required amount of capital in a property or land that will create at 10 full-time construction jobs. An EB5 visa can be obtained by development and construction of a house or property if it creates 10 full-time jobs.
For a new real estate development company not located within a regional center, the new real estate enterprise must directly create the full-time jobs to be counted. This means that the eb5 real estate development company must itself be the employer of the 10 full-time jobs.
Immigrant investors; their spouses, sons, or daughters; or any alien in any nonimmigrant status (such as an H-1B nonimmigrant) or who is not authorized to work in the United States are not qualifying employees.
Real Estate Capital Investment Requirements
Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by Real Estate immigrant investors, if they are personally and primarily liable and the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital will be valued at fair-market value in U.S. dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) will not be considered capital for the purposes of section 203(b)(5) of the Act.
Immigrant Real Estate investors to obtain green card through investment in real estate must establish that they are the legal owner of the capital invested. Capital can include their commitment to pay (a promissory note) under certain circumstances.