Author: Maryjoy Chuba
The EB-5 Immigrant Investor Program is a significant pathway for foreign investors to gain U.S. permanent residency by investment. It was established in 1990 with the goal to promote the U.S. economy through the infusion of foreign capital and the generation of jobs. Foreign investors can choose between Direct Investment and Regional Center Investment with various advantages and prerequisites.
Eligibility and Investment Opportunities
There are two ways that an investor can become eligible for the EB-5 visa:
- Standard Investment: $1,050,000 for a start-up business venture to create a new business or to re-start a failing business.
- Targeted Employment Area (TEA) Investment: $800,000 for investment in a rural or high-unemployment area (less than 20,000 in population or unemployment rate of no less than 150% of national average).
Both investments are required to create or retain a minimum of 10 full-time jobs for American workers.
Direct Investment vs. Regional Center Investment
Direct Investment
- It is owned and operated by investors.
- Investors must be part of operating the business.
- The investment must be put at risk and generate a minimum of 10 full-time American jobs directly.
- Investors have more control of the company but higher operational risks and liabilities.
Regional Center Investment
- Investment is made in USCIS-approved EB-5 Regional Centers.
- There is no active management. That is what makes it ideal for passive investors.
- The jobs requirement is more lenient in that indirect and induced jobs are included in meeting the requirement.
- Investment is pooled to enable larger, often property or infrastructure projects to become feasible.
- It facilitates easier application but with reduced control of funds.
How to Conduct Investment Feasibility and Due Diligence
In order to ensure that an EB-5 investment is authentic and profitable, investors need to conduct careful research:
- Regional Center Investors should verify the background of the center, financial standing, and compliance with USCIS regulations.
- Investors should make sure that the business plan, job creation plan, and source of funds are compliant with USCIS requirements.
SAFEGUARDS – Reform Act for Prevention of Frauds Enhancements
The EB-5 Reform and Integrity Act of 2022 made a number of significant provisions to prevent fraudulent activity in the Regional Center Program and improve investor protections and transparency. They are:
- Enhanced USCIS Oversight: Increased scrutiny and regular audits of regional centers to ensure compliance with program requirements.
- Separate accounts for EB-5 investor funds and transparent documentation of fund utilization are required to be maintained by regional centers.
- Third-Party Fund Administration: Third-party fund administrators are employed to oversee investment flow and independent financial monitoring is legally required.
- Strict Compliance and Sanctions: Non-compliant regional centers can be shut down to make sure that only legitimate and properly managed centers are engaged.
- Background Checks and Certifications: Background checks are necessary for regional center operators and project managers to prevent bad actors from entering the program.
These protections reduce risks of fraud significantly and provide greater protection to investors while improving the program’s integrity of the EB-5 Regional Center Program.
Why the Regional Center Program is Important
Very often, individuals who are considering the EB-5 Visa are interested in the direct investment for the sake of having more control of investment or distrust with Regional Centers. Of course, protection for avoiding fraud is offered by the Reform and Integrity Act of 2022, makes the Regional Center Program more attractive, and is more efficient in meeting the job creation requirement than the direct investment options. Investment is facilitated by the regional Center Program for foreign investors and makes the EB-5 visa more accessible. To repeat, some of the major advantages are:
- Greater job creation flexibility (including indirect and induced jobs).
- Reduced managerial burden, making it a passive investment.
- Less financial exposure compared to having a sole proprietorship.
- Increased visa availability for rural and areas with high unemployment.
Now is the best time for Indian and Chinese nationals to apply.
Opportunity for Indian and Chinese Investors
- Avoiding Retrogression: Indian and Chinese nationals are subject to significant delays in nearly all of the employment-based visa categories, while most of the EB-5 categories are current for them. This enables them to get a green card without significant delays compared to H-1B or other employment-based visas.
- Set-aside categories: Congress has established rural and high-unemployment investment categories that let Chinese and Indian investors bypass visa backlogs.
- Concurrent Adjustment Filing: Another major revision to the EB-5 program in 2022 allows individuals already in the U.S. (on F-1 or H-1B visas, for instance) to file for adjustment of status simultaneously with their EB-5 petition, allowing them to stay in the U.S. and work while waiting for approval.
- Increased Demand: Over 4,700 EB-5 petitions were submitted in 2024 alone and represented $3.8 billion in investment. This heightened demand means that EB-5 visas available will become subject to retrogression soon.
Urgency in Filing: Monitoring Visa Bulletin and Retrogression Risks
Even though EB-5 visa categories are presently open, this is not promised to stay that way. The U.S. Department of State has said that it will provide advance notice in the Visa Bulletin in case of imminent retrogression.
Rural and High Unemployment Categories
- The rural category retrogression can only cause a delay of a few months and is therefore a safer choice.
- High category unemployment can cause waiting for a number of years owing to much higher demand and limited visa availability.
Visa Demand and Supply Imbalance:
- There are available 4,416 rural projects visas for Fiscal Year 2025 and only 2,164 pending applications, implying that demand can be satisfied by supply.
- For TEA projects with high unemployment, there are only 2,208 visas, yet more than 3,000 applications are pending, retrogression is likely.
- For infrastructure projects, there are only 442 visas per fiscal year.
- For unreserved visas, only 11,720 visas are available with over 4,500 visas issued at consular processing by the end of Q1 FY2025, leaving around 7,178 visas available.
Because there are more applications pending in certain categories than there are visas to offer, retrogression is likely for HUA and Infrastructure projects. It is advisable to refer to the Visa Bulletin and consult with immigration experts for recent developments.
Trump Administration’s Golden Visa Speculation
President Trump suggested on February 25, 2025, a Golden Visa program with a $5 million investment that would be a potential substitute for the EB-5 program. That would have to be authorized by Congress and will not likely occur due to the way the EB-5 program benefits local economies and creates employment. Rather than a substitute, the Golden Visa may likely be added alongside EB-5.
Grandfathering Provision
If you file your I-526E petition before September 30, 2026, you will be grandfathered and your application will still be processed even though the program is scheduled to expire in 2027.
Final considerations
The EB-5 Immigrant Investor Program presents a fantastic opportunity for foreign investors to become residents of the United States while contributing to economic development. And is still a viable option for investors particularly Chinese and Indian Nationals who get a special opportunity to apply without having to worry about retrogression for at least in the short term. While Direct Investment provides control and potential financial return, it is also with great responsibilities and risk. With recent Reform and integrity Act assuring greater protection against abusive practices and offering greater transparency and investor protection, the Regional Center Program is more attractive and allows a passive role with structured investment options and is hence the preferred choice for many investors interested in a smooth immigration process.
Although President Trump’s idea for a Golden Visa program has generated some enthusiasm, the EB-5 program is going to continue until September 30, 2027, and those who apply before September 30, 2026 are grandfathered. Interested investors who are seeking a faster and more predictable path to U.S. permanent residency are advised to take advantage of this limited time before changes and delays are introduced in the future. It is time for Indian and Chinese investors to apply before demand outpaces visa availability and retrogression sets in. Lawyers representing immigrants need to counsel clients now in order to be able to use the EB-5 program before significant delays resume.
