A. Purpose

The Immigration and Nationality Act (INA) makes visas available to qualified foreign nationals who will contribute to the economic growth of the United States by investing in U.S. businesses and creating jobs for U.S. workers. [1] See INA 203(b)(5). Congress created this employment-based fifth preference immigrant visa category (EB-5) to benefit the U.S. economy by providing an incentive for foreign capital investment that creates or preserves U.S. jobs.

The INA authorizes approximately 10,000 visas each fiscal year for immigrant investors (along with their spouses and unmarried children under the age of 21) who have invested or are actively in the process of investing in a new commercial enterprise and satisfy the applicable job creation requirements. Three thousand of the visas are set aside for immigrants, and their eligible family members, who invest in a new commercial enterprise within a USCIS-designated regional center. Regional centers are organized in the United States for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. [2] See Section 610(a) of the Judiciary Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992) as amended by Section 11037 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, 116 Stat. 1758, 1847 (November 2, 2002).

The INA established a threshold investment amount of $1,000,000 U.S. dollars per investor. To encourage investment in new enterprises located in areas that would most benefit from employment creation, the INA also sets aside at least 3,000 of the approximately 10,000 EB-5 visas annually for qualified immigrants who invest in new commercial enterprises that will create employment in targeted employment areas (TEA), which includes rural areas and areas with high unemployment. The minimum amount for investing in a TEA is currently set at $500,000 U.S. dollars per investor. [3] See INA 203(b)(5)(B)-(C). See 8 CFR 204.6(e)-(f).

Upon adjustment of status or admission to the United States, immigrant investors and their derivative family members receive conditional permanent resident status for a 2-year period. Ultimately, if the applicable requirements have been satisfied, USCIS removes the conditions and the immigrants become lawful permanent residents (LPR) of the United States without conditions.

B. Background

1. EB-5 Category Beginnings

In 1990, Congress created the EB-5 immigrant visa category. [4] See Section 121(a) of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990). The legislation envisioned LPR status, initially for a 2-year conditional period, for foreign nationals who established, [5] In 2002, Congress eliminated the requirement that an immigrant investor establish the new commercial enterprise. See Section 11036 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, 116 Stat. 1758, 1846 (November 2, 2002). invested (or were actively in the process of investing) in, and engaged in the management of job-creating or job-preserving for-profit enterprises. [6] See Sections 121(a)-(b)(1) of IMMACT90, Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990). Congress placed no restriction on the type of the business if the foreign national invested the required capital and directly created at least 10 jobs for U.S. workers.

2. Creation of the Regional Center Program

In 1992, Congress expanded the allowable measure of job creation for the EB-5 category by launching the Immigrant Investor Pilot Program (referred to in this guidance as the Regional Center Program). [7] See Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992). Congress designed this program to determine the viability of pooling investments in designated regional centers. [8] See S. Rep. 102-331 at 118 (July 23, 1992). Currently, the jurisdiction of a regional center is based on the regional center proposal submitted to and approved by USCIS.

The Regional Center Program is different from the direct job creation (stand-alone) model because it allows for the use of reasonable economic or statistical methodologies to demonstrate job creation. Reasonable methodologies are used, for example, to credit indirect (including induced) jobs to immigrant investors. Indirect jobs are jobs held outside the enterprise that receives immigrant investor capital.

3. Program Extensions

Congress initially approved the Regional Center Program as a trial pilot program, set to expire after 5 years. Congress has extended the program several times. [9] For information on the current expiration date, see the USCIS website.

Evolution of EB-5 Program

Act

Statutory Provisions

Sections 121(a)-(b) of the Immigration Act of 1990 [10] See Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990).

Congress creates the employment-based fifth preference immigrant visa category (EB-5).

EB-5 provides a path to permanent resident status, initially on a 2-year conditional basis, to qualified foreign nationals who contribute to U.S. economic growth by investing in domestic businesses and creating employment.

Intends for immigrant investors to establish, invest in, and engage in the management of job-creating commercial enterprises.

Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 [11] See Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992).

Congress creates an Immigrant Investor Pilot Program (Regional Center Program) to have a number of the available EB-5 visas set aside each fiscal year for foreign nationals (and eligible family members) who invest in a commercial enterprise associated with a designated Regional Center.

Regional centers designated for the promotion of economic growth.

The Regional Center Program allows foreign investors to claim credit for direct and indirect job creation. [12] For a discussion on indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs [6 USCIS-PM G.2(D)].

Sections 11035-37 of the 21st Century Department of Justice Appropriations Authorization Act [13] See Pub. L. 107-273, 116 Stat. 1758, 1846 (November 2, 2002).

Includes a specific reference to limited partnerships as commercial enterprises and eliminates the requirement that immigrant investors prove they have established a commercial enterprise themselves. Investors need only show they have invested or are actively in the process of investing in a commercial enterprise, among other requirements.

Defines full-time employment as employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.

Allows regional center proposals to be based on general but economically and statistically sound predictions submitted with the proposal concerning the kinds of enterprises that will receive capital from immigrant investors, the jobs that will be created directly or indirectly as a result of the investments, and other positive economic effects of the investments.

Section 1 of Pub. L. 112-176 [14] See 126 Stat. 1325, 1325 (September 28, 2012).

Eliminates the word pilot from the name of the Regional Center Program.

C. Legal Authorities

INA 203(b)(5); 8 CFR 204.6 – Employment creation immigrants

INA 216A; 8 CFR 216.6 – Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

8 CFR 216.3 – Termination of conditional permanent resident status

Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 [15] See Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.

Footnotes


2. [^]

See Section 610(a) of the Judiciary Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992) as amended by Section 11037 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, 116 Stat. 1758, 1847 (November 2, 2002).

4. [^]

See Section 121(a) of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990).

5. [^]

In 2002, Congress eliminated the requirement that an immigrant investor establish the new commercial enterprise. See Section 11036 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, 116 Stat. 1758, 1846 (November 2, 2002).

6. [^]

See Sections 121(a)-(b)(1) of IMMACT90, Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990).

7. [^]

See Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992).

8. [^]

See S. Rep. 102-331 at 118 (July 23, 1992).

9. [^]

For information on the current expiration date, see the USCIS website.

10. [^]

See Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990).

11. [^]

See Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992).

12. [^]

For a discussion on indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs [6 USCIS-PM G.2(D)].

13. [^]

See Pub. L. 107-273, 116 Stat. 1758, 1846 (November 2, 2002).

14. [^]

See 126 Stat. 1325, 1325 (September 28, 2012).

15. [^]

See Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.