Everything you need to know about immigrant investor visas

One of the main reasons for the popularity of EB-5 visas is speed – it allows applicants to acquire a Green Card within two years and, in some cases, less than a year.

By Mark I. Davies

H-1B has long been the visa of choice for Indians seeking to relocate to the United States. But as the program faces increasing uncertainty, Indians are flocking to the EB-5 visa, the fastest and most direct route to a Green Card.

Accounting for almost 75% of the total annual H-1B visa quota, Indian nationals have long been by far the largest recipient group for the H-1B visa for highly skilled workers. China, in second place, accounts for only around 10% each year.

The H-1B program has come under greater scrutiny amid claims that it displaces American workers. This had led to calls for the program to be tightened, for example by reducing the number of visas available, increasing the minimum salary requirements, and restricting the ability of spouses to work in the United States.

As a result, many Indians are looking for other immigration pathways into the United States. As the longest-established US immigration attorneys in India, the one in which we have seen the most dramatic growth is the EB-5 investor visa.

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One of the main reasons for its popularity is speed. The program allows Indian applicants to acquire a Green Card for them and their immediate family within two years and, in some cases, less than a year.

There are two key requirements of the EB-5 visa program, that the applicant be able to invest a minimum of $500,000 in a new commercial venture and that such an investment is used to create and sustain 10 full-time American jobs.

Applicants can choose between two options, either invest in a fund called a Regional Center, or to manage their investment directly themselves. The Regional Center is by far the most popular option, with almost 95% of investors pursuing this route. This is because the Regional Center takes on the responsibility for ensuring compliance with the program, and in doing so, helps to mitigate the risk to the Green Card.

Most Regional Centers use the EB-5 funding for commercial real estate projects across the United States. These are usually hotels, shopping centers and apartment complexes, but golf courses, ski resorts and water parks are also being built with EB-5 money.

I recently conducted a site visit for a project run by one of the largest and most active Regional Centers, EB5 Capital, close to our New York headquarters. They have broken ground on a new Ritz-Carlton Hotel in Manhattan using money from Indian investors and twenty other nationalities.

ALSO READ: Indians making a beeline for EB-5 visa to get Green Card (March 14, 2016)

“We have always had strong interest from India and my team is accustomed to working with sophisticated Indian investors,” Angel Brunner, CEO and Founder of EB5 Capital, told me.

“What is exciting with this particular project is that we are receiving investors from not just the Indian subcontinent, but also from places where there are significant Indian communities outside of India, such as Hong Kong, Indonesia, Qatar, Singapore, the UAE, and United States.”

With over 800 Regional Centers across the United States, it is vital to invest in a Regional Center with a strong track record of delivering EB-5 projects so as not to risk your Green Card.

The alternative to the Regional Center option is for a client to manage the investment themselves in what is termed “Direct EB-5.” Given the importance of ensuring compliance with the EB-5 program, it is especially important to establish a long and close partnership with an attorney who has experience with Direct EB-5.

This includes ensuring that an investment is made in a new commercial venture established in a so-called “Targeted Employment Area,” which is a rural area or one that has high unemployment. Only investments in these areas are subject to the $500,000 investment level. Outside of Targeted Employment Areas the minimum investment level rises to $1 million.

ALSO READ: Immigrant entrepreneurs to get parole in US, no visa hassles, easier route for Green Card (August 29, 2016)

One of the most challenging requirements of Direct EB-5 is to create and sustain 10 full-time jobs. As a result, we find that many clients prefer to go the Regional Center route and then establish their business free of the constraints of the EB-5 program once they have their Green Card.

Although it is a faster route to a Green Card, the whole EB-5 process is inevitably more expensive than the H-1B visa, and the US government is strict about documenting where the money came from to pay for it. This has proven the biggest hurdle to Indians applying for the EB-5 program.

The number of Indian’s applying for EB-5 visas has skyrocketed from just a few dozen five years ago to several hundred this year. Each country faces an annual cap of around 700 visas before facing a waiting list, so it is best to act fast and apply for an EB-5 visa as soon as possible.

(Mark Davies is Global Chairman of Davies & Associates LLC, a New York based immigration law firm with a long history of helping Indian clients both in India and the United States. Currently ranked in the list of Top 25 Immigration Attorneys, Mark has helped bring hundreds of Indian families to the United States and has supported them with their legal requirements long after they have relocated.) 


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