EB-5 Visa – FAQ’s
Costs of Public University Education – If my child obtains an EB-5 green card as a principal applicant or accompanying family member, can my child be eligible for lower university tuition at public universities because they have residence in a state of the United States, and are there any other similar benefits for university admission?
Public universities in the United States frequently offer lower tuition to persons who are residents of the state in which the public university is located. The amount of tuition costs for public universities, and the amount of tuition discount for residents of the state, vary from state to state. Similarly, each state has its own rules how much time a person must live in a state to qualify as a “resident” of the state.
Based on publicly available information, we provide below examples of how some of the more populous states generally treat in-state tuition/residency requirements. Please note that state rules and policies may change. Further, our law firm does not advise students on admission requirements to university in the U.S.
- Texas: In-state tuition available for students who have established Texas as their principal place of residence one year prior to the first date of the academic term.
a. Admission: In Texas, current law provides that students who graduate from High School in Texas in the top 10% of their graduating class, as determined by grade point average, are given certain preferences for admission to the University of Texas at Austin – the premier campus of the University of Texas system (Texas Education Code (TEC), §51.803).
- California: To be classified a California resident for tuition purposes, an adult student, must have established a primary and permanent domicile in California for at least 366 days and relinquished all ties to his/her past place(s) of residence. A student with out-of-state parent(s) must prove financial independence.
- New York: In-state tuition available for students who have established New York as their principal place of residence one year prior to the first date of the academic term and who are financially independent from their parents.
- Florida: In-state tuition available for students who have established Florida as their principal place of residence for at least 12 consecutive months immediately prior to his or her initial enrollment in an institution of higher education.
- Illinois: In-state tuition available for students who have established Illinois as their principal place of residence one year prior to the first date of the academic term and who are financially independent from their parents. In general, establishing financial independence requires a finding that the student has not relied on support from their parents for tuition purposes.
Generally, under U.S. tax laws, persons who become U.S. green card holders (lawful permanent residents), and people who spend at least one-half of each calendar year physically present in the U.S., are likely considered residents of the U.S. for tax purposes. The general rule of the U.S. tax system is that a person who is a U.S. tax resident is taxed on their worldwide income. Assets are not usually taxed unless income is generated on the asset or the asset is sold and a taxable financial gain results. The U.S. and India have entered into a Double Taxation Avoidance Agreement which seeks to minimize situations where people and companies are taxed both in the U.S. and India. Our law firm strongly recommends potential EB-5 investors to seek professional tax advice to address their individual tax situation and enable proper tax planning. Our law firm does not advise on U.S. taxation issues.
Any child who is over the age of 21 at the time the I-526 Immigrant Visa Petition is filed by the EB-5 investor before U.S. Citizenship & Immigration Services (“USCIS”) is considered an adult pursuant to U.S. immigration law and is, therefore, not allowed to accompany the principal EB-5 Investor as a dependent child. If, however, the EB-5 investor files Form I-526 before the child turns age 21, and there is no waiting list for EB-5 visas, then it may be possible for the child to remain with the EB-5 investor’s visa process pursuant to the Child Status Protection Act.
The answer to this question depends on whether a visa waiting list exists at the time the Investor’s I-526 application is approved. The Child Status Protection Act (“CSPA”) provides some protection for family’s immigrating to the U.S. with the general aim of keeping families together. In the above situation, it is helpful to consider the following example:
- The Investor files his/her EB-5 application when the dependent child is 20 years, 9 months old.
- The I-526 petition is approved 18 months later, when the child’s biological age is 22 years and 3 months. Generally, a child over the age of 21 would not be allowed to receive a green card based on his parent’s I-526 petition (initial EB-5 petition).
- However, the CSPA provides some relief in this situation. For the purpose of considering immigration benefits, the child’s age would be calculated in the following manner: The time that the I-526 petition was pending with USCIS (18 months, from receipt date to approval date) would be subtracted from the child’s biological age at the time the I-526 petition was approved. Therefore, in the situation above, at the time the parent’s I-526 was approved, the child’s CSPA age would be 20 years, 9 months old (22 years and 3 months minus the 18 month I-526 petition adjudication time).
- Therefore, after the I-526 is approved, the child’s age would is considered to be under 21 when applying for immigration benefits (such as a green card). If a green card is immediately available for Indian nationals in the EB-5 category (there is no Department of State waiting list for visas) and the Investor and child apply for their conditional green cards within a year of the EB-5 petition approval, the child’s age would remain “frozen” at his/her CSPA age after the EB-5 petition approval.
- However, if a visa waiting list exists for Indian nationals at the time of the I-526 approval, then visas would not be immediately available and the investor and child would not be able to apply for his/her conditional green cards after the I-526 approval. In this situation, the child’s age would continue to increase after the I-526 petition is approved. Once the child’s CSPA age is over 21, the child would be considered to have “aged-out” and would be ineligible for a green card based on the approved I-526 petition.
- Therefore, in the situation above, if a waiting list does not exist for Indian nationals at the time of the Investor’s I-526 approval, the child would be eligible for a green card. However, if at the time of Investor’s I-526 approval, a waiting list exists for Indian nationals that is more than 3 months in duration, the child would likely age-out and be ineligible for a green card based on his parent’s I-526 petition.
A parent who obtained a green card through the EB-5 program (or other visa program) could file an immigrant visa petition for family reunification for a child who is over age of 21 and unmarried. This process would also presently involve a waiting list of approximately 7 years for children born in India. Additionally, if the adult child marries U.S. legal permanent resident or U.S. citizen, he/she would be eligible for a marriage-based green card. Finally, the adult child could also file his or her own separate EB-5 petition.
Generally, in such a situation, the regional center’s escrow bank, or the new commercial enterprise, will wire transfer the EB-5 investment capital back to the original bank account from which it was sent, or a bank account designated by the investor.
Yes, an EB-5 investor can use investment funds earned and deposited in the United States for an EB-5 investment. The EB-5 investor will be required to prove the lawful source of the funds invested even if they are earned in the United States. If the EB-5 investor was in the U.S. while on work visa status, the EB-5 investor must demonstrate that the salary was earned while holding valid work visa status.
After an EB-5 investor’s I-829 petition is approved (unconditional green card), the investor will request the new commercial enterprise to return the principal capital investment amount (e.g., US$900,000). The return of investment capital depends on the success of the business of the new commercial enterprise because all EB-5 investments must be at-risk. If the new commercial enterprise has funds available to repay the principal capital investment to the EB-5 investor, the procedures established in the limited liability company operating agreement or partnership agreement of the new commercial enterprise will govern.
Pursuant to U.S. immigration law, your EB-5 investment must be at risk of profit or loss. The new commercial enterprise that is the target of the EB-5 investment cannot guarantee a profit or interest rate, and cannot guarantee the repayment of your principal capital investment amount. In recent years, USCIS has publicly stated that it is unlikely to approve an EB-5 visa petition in which the new commercial enterprise will convert the EB-5 investor’s principal capital investment amount into ownership of a condominium or personal residence. Such an investment has been regarded by USCIS as a guaranteed investment that is not at-risk. Additionally, USCIS regulations provide that an investment in building one’s own personal residence is not a qualifying EB-5 investment.
The amount needed is $900,000, when you invest into an approved project through a regional center into a Targeted Employment Area (TEA). If you invest directly into your own business outside a TEA, or if you invest into a regional centre outside a TEA, the investment required is $1.8million.
An EB-5 Regional Center is an organisation designated by United States Citizenship and Immigration Services (USCIS) that sponsors capital investment projects for investment by EB-5 investors. The major advantage for regional center designation is that the regional center can take advantage of indirect job creation. A Regional Center essentially pools together multiple Eb-5 investors money for the purpose of investing into a qualifying business, so the investors have no requirement to manage the business or create the 10 jobs themselves.
By investing into an approved development project, you are satisfying all of the requirements of the EB-5 Visa program, without having to start and manage your own business – as the project will create the required number of jobs.
The investor can live, work or retire anywhere they want in the U.S. They are not restricted to live where their investment was made.
The Eb-5 visa has two routes; Direct Investment and Regional Center Investment. If you want to invest into your own business, this is the direct investment route. You will need to invest either $900,000 or $1.8Million (depending on the location) into your own business, and create 10 jobs. Around 95% of all applicants apply through the regional centre route, however if you wish to apply by investing directly into your own business, we can of course assist with this.
The EB-5 visa programme was created in 1990 to encourage foreign investment into the American Economy. The programme was created for Non-U.S. Citizens who are rewarded with Permanent Residence, when investing and creating jobs in U.S. In 1992, the Eb-5 ‘Regional Center’ programme was created.
The EB-5 Visa program allots 10,000 visa numbers each year for immigrant investors and their accompanying family members. Of this allotment of visa numbers, 3,000 are reserved for immigrant investors who rely on the Regional Center Pilot Program.
For the purpose of the EB-5 program, a Targeted Employment Area (TEA) allows $900,000 of investment rather than the regular $1,800,000 of investment which is usually required to get Residency. A TEA is an area of America that has experienced higher level of unemployment than the national average.
Immigrant investors are not required to demonstrate any minimum level of education or work experience. The main requirement for immigrant investors is to demonstrate they have the requisite net worth to make the investment and that the net worth was obtained by lawful means. Proper documentation to establish both of these requirements is critical for the approval of the I-526.
No. Immigrant investors on the EB-5 visa program are not required to satisfy English language proficiency. Please note, however, that our investment documentation is only provided in English and no authorized translations will be provided. Therefore, immigrant investors who are not proficient in English must seek assistance in order to read and comprehend the investment documentation before making an investment decision. We can provide this service if necessary.
EB-5 visa regulations require that the immigrant investor demonstrate that the capital invested to participate in an EB-5 project was obtained by lawful means. Therefore, immigrant investors can rely on any documentation demonstrating the funds were obtained lawfully, such as business records, salary and payroll records, tax records, investment portfolios, sale of assets such as real estate, inheritance, gift, loan and even certifications from the immigrant investors licensed accountants and any combination of thereof. There is more than one way to successfully demonstrate the lawful source of the funds used to invest in the EB-5 project. We will work with immigrant investors and their representatives to address this issue to ensure proper documentation is submitted.
This is the document which is filed after 2 years, to remove the conditions of your green card. When filing this petition, your immigration attorney will demonstrate that the project you have invested into has created the required 10 jobs.
This is the document which needs to be filed once you have invested into a project. The I-526 Petition demonstrates that the investor has invested the required amount into a suitable EB-5 project. The I-526 petition also demonstrates that the capital invested has come from a lawful source of funds. The applicant therefore must provide evidence that is traceable, proving the funds were obtained legally.
For the first two years, the applicants receive conditional permanent residence. The conditions are removed if all requirements have continued to be met, including the job creation requirement.