In recent years, Indians are increasingly exploring avenues for immigration to the United States (US). However, the process of obtaining a Green Card may not be as easy as one would hope, as it generally entails a significant wait time and other complexities due to visa quotas and backlogs. Indian applicants applying for employment-based visas in the US were recently reported to be looking at a wait time that is more than their life expectancy.

The US EB-5 visa program (referring to an employment-based fifth preference visa) has hence emerged as a prominent choice, as it offers immigrants a unique and time-efficient pathway to obtain permanent residency in the US.

Aimed at generating employment and eliciting foreign investment in the US, the EB-5 visa program, administered by the United States Citizenship and Immigration Services (USCIS), ensures that immigrant investors (along with their spouses and unmarried children under 21 years of age) become eligible to become a Green Card holder if they make a minimum specified investment and ensure a specified amount of job creation.

Capital Investment Requirements

To be eligible for the EB-5 visa, Indian immigrant investors would be required to make a significant financial commitment, to the tune of:

(i) USD 1,050,000 (Approx Rs 8,71,17,026) as a minimum investment amount; or

(ii) USD 800,000, (Approx Rs 66,374, 178) if the investment is to be in a ‘targeted employment area’ (referring to an area which at the time of investment, is a rural area, or an area that has experienced high unemployment, defined as at least 150% of the national average unemployment rate).

In both of the above cases under serial no. (i) and (ii), the investment must be made in a ‘new commercial enterprise’, which is generally defined as a for-profit activity formed for the ongoing conduct of a lawful business, including a sole proprietorship; partnership (whether limited or general); holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business); joint venture; corporation; business trust; limited liability company; or other entity, which may be publicly or privately owned in the US.

Job Creation Requirements

Applicants must plan to create or preserve 10 permanent ‘full-time jobs’ (meaning a position that requires a minimum of 35 working hours per week) for ‘qualified US workers’ (referring to a US citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including a conditional resident, temporary resident, asylee, refugee, or a person residing in the United States under suspension of deportation).

For this purpose, applicants must be specifically conversant with the regulations about USCIS-designated regional centers, which have a direct bearing on how this job-creation requirement can be fulfilled. In certain cases, depending on the ‘new commercial enterprise’ in which the investment is made, even ‘job maintenance’ (as opposed to job creation) may satisfy this requirement.

How the EB-5 visa works

Immigrant investors can apply for the EB-5 visa by filing the prescribed application forms, as set out by the USCIS.

As far as Indian immigrant investors are concerned, one of the key benefits of the EB-5 visa program is that it lays down a shorter and faster pathway to becoming a Green Card holder. Successful applicants to this visa program generally receive conditional green cards for 2 years.

The immigration authorities thereafter remove the conditions to these green cards over time, once the applicant has demonstrated that the conditions for the visa, as set out above, have been fulfilled. It is pertinent to note that the transition from a conditional to a regular green card does not affect what the holder is permitted to do in the US.

While the EB-5 visa certainly appears to be an easy way out provided one is willing to make the financial commitment required, applicants must be thoroughly conversant with the legal implications of this visa program, which extend beyond the application phase and require ongoing diligence.

This includes demonstrating that all invested funds are sourced from legal sources, keeping abreast of all changes in the legislation and policy that affect the legal landscape, and adhering to post-approval responsibilities crucial for a seamless immigration journey. As the EB-5 visa program continues to evolve, potential Indian immigrants must stay updated on the legal requirements and seek professional advice to navigate the complexities of US immigration laws.