26. WHAT STEPS ARE INVOLVED IN THE I-526 PETITION PROCESS?

Step one of attaining legal permanent residence in the U.S. is to submit the I-526 petition, also known as the Petition for Alien Entrepreneur. The foreigner should also provide evidence which shows the potential investment is legitimate. 

The following criteria is considered when the USCIS reviews the I-526 petition:

  • New Commercial Enterprise: Documentation must prove the investment is new and the investor is allowed to transact business.
  • Investment Capital: Documentation must show the potential investor has deposited the capital requirement in a "at risk" escrow account. USCIS requests the accounts be "at risk" to convey the investment is wholly for the EB-5 venture. The investment has to be used entirely for the purpose of creating or maintaining employment at the venture. Any capital used to finance administrative costs or other non-employment reasons are not considered "at risk".
  • Managerial Role: The person who is investing the capital for the EB-5 venture must be involved in the management of the business. They should help form the venture's policies by actively assisting in activities listed in section 3423(b) of the Vermont Revised Uniform Limited Partnership Act, VRULPA, as well as other activities listed in the Limited Partnership Agreement. If an investor is considered a limited partner in his dealings with the EB-5 venture, he or she must have a specific range of ownership described in the Uniform Limited Partnership Act (ULPA), which was then later enacted in Vermont with VRULPA. It is plausible the dynamics of VRULPA and the EB-5 immigration law specifications have conflicting requirements in the extent to which the investor should be involved in the venture's management. Potential investors should always work with legal counsel to assure they meet all requirements.
  • Amount of the Investment: The minimum investment that can qualify for the EB-5 program is $1,000,000 in areas with good economic standing, and $500,000 for areas considered to be Targeted Employment Areas, TEAs. Any documentation submitted with the petition must help prove the investor has met the minimum funding requirements. Employment Creation: All EB-5 ventures must be able to create or maintain 10 full-time positions. Documentation about the 10 positions should be included with the petition submission. Please see the earlier discussion to learn more about qualifying jobs and Regional Center investments.

The Petition for Alien Entrepreneurship, or the I-526, will be approved if the above requirements are met. It is up to the USCIS to review all supporting evidence and determine whether the investor is approved or not. The USCIS also has the power to request additional information on the different makeup and facets of the investment, including how the investor is associated with the enterprise. The criteria for qualifying for the EB-5 program is frequently changing, therefore it is hard to judge whether an investor will be approved based on current criteria.

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