Overview

-- By Mugg & Tang, LLP

Immigration through investment is one kind of employment-based immigration in the fifth employment-based preference (EB-5). EB-5 is set aside for immigrant investors who invest a specific minimum amount of capital in a business which will create employment for a specific minimum number of U.S. workers.

In order to obtain permanent residence through an investment, the first step is to file a petition with the USCIS to determine if the foreign investor is qualified for immigration under the fifth preference category. Once the first step is approved, then the investor can apply for permanent resident status. The application for permanent residence can be made at a U.S. consulate overseas, or can be made here to adjust status to a permanent resident if the foreign investor is in the U.S. and is eligible.

Immediate family members of the EB-5 immigrant can also immigrate with the immigrant investor. No separate immigrant visa petition is required on behalf of such family members as they are derivatively included in the petition filed by the primary applicant.

The grant of permanent residency is conditional for a two-year period. The foreign investor must file a petition with the USCIS prior to the two-year anniversary requesting that the conditional basis of the residence be removed. To remove the conditional status, the investor must establish that he or she continues to meet the conditions for participation in the program.