Filing Form I-526 is the first step foreign investors must take to get an EB-5 investor visa. The EB-5 visa is a unique type of employment-based visa. To qualify for an EB-5, you must first invest the required capital in a qualifying EB-5 project. You also have to submit proof of your eligibility for an EB-5 visa as part of the Form I-526 filing process. This article explains what the EB-5 program is, who is eligible to file Form I-526, and how the application process works.
Written by Paige Hooper.
Written January 11, 2023
What Is USCIS Form I-526?
If you want to invest in a U.S. business and permanently move to the United States to oversee your investment, your first step is submitting a Form I-526: Immigrant Petition by Standalone Investor. United States Citizenship and Immigration Services (USCIS) uses Form I-526 to determine whether you’re eligible for the EB-5 Immigrant Investor Program.
What Is the EB-5 Program?
“EB” refers to an employment-based green card or visa. There are five sub-categories of employment-based visas, sometimes called preference classes. Sub-category 5 is for investors. The EB-5 program creates a pipeline that allows foreign investors to contribute to the American economy and gain permanent resident (green card) status at the same time.
What Are the EB-5 Program Requirements?
There are four main requirements to qualify for the EB-5 program:
You Must Invest in a Qualifying Project. A qualifying project is any U.S.-based new commercial enterprise. A commercial enterprise is any lawful, for-profit business activity. A new commercial enterprise can be a new venture or an existing business that was established after Nov. 29, 1990. It can also be a business that existed before that date, if the business has since undergone substantial restructuring or if the business will be significantly expanded due to your investment.
You Must Invest the Required Amount of Capital. For Form I-526 petitions filed after March 15, 2022, the minimum investment amount is $1,050,000, or $800,000 for projects that improve local infrastructure or projects located in designated Targeted Employment Areas (rural areas or areas with high unemployment rates). The minimum amounts are adjusted every five years. The next adjustment will be in January 2027. “Capital” can include cash, real estate, personal property, and other assets. You must be able to show that you legally own and control the capital and that you obtained it through lawful means.
Your Investment Must Create U.S. Jobs. Your proposed EB-5 investment plan must create at least 10 full-time employee positions. The person in the new job must be authorized to work in the U.S. and be employed directly by the business enterprise. Full-time means at least 35 hours per week. There are special rules for projects that qualify as “troubled businesses.”
You Must Actively Participate in Managing the Project. You must have a hands-on role in the project. This means being involved in either managing the business’s day-to-day operations or creating the business’s policies. This type of active involvement in the process justifies your need to move permanently to the U.S.
To meet these requirements, you must provide detailed documentation about your planned investment (more about that below). This means that you need to select an eligible project and at least begin the investment process before you complete Form I-526.
How Does the Form I-526 Application Process Work?
To begin the application process, complete and submit Form I-526. You’ll need specific and detailed information about your investment, your source of funds, and your business plans. You must also attach evidence to support the information in your petition and pay a filing fee. The evidence required for a Form I-526 application is different for each applicant depending on your proposed investment project.
After you submit your application, USCIS will typically respond in one of the following ways:
Approval: If USCIS finds that the evidence you submitted is sufficient and that you qualify for the EB-5 program, it will approve your petition.
Request For Evidence: Often, USCIS needs more information to reach a decision. In this case, USCIS may send you a Request for Evidence (RFE). The RFE will contain a list of information or documents USCIS needs and a deadline for submitting the requested evidence. If you don’t submit the requested information to USCIS by the deadline, USCIS will deny your petition.
Notice of Intent to Deny: USCIS might also send you a Notice of Intent to Deny your petition (NOID). In this case, USCIS doesn’t think you qualify for the EB-5 program, but it’s giving you one more chance to make your case. Like an RFE, a NOID includes a list of requested information and/or documents and a submission deadline. USCIS will deny your petition unless you submit all the requested evidence by the deadline.
Denial: Finally, USCIS might deny your petition without sending a NOID. In this case, you’ll receive a denial notice explaining why your application was denied. If USCIS denied your Form I-526 petition, you may want to consult with an attorney before reapplying.
What Evidence Do You Have To Submit With Form I-526?
Along with Form I-526, you must include documentation showing that the information on the form is correct and evidence proving that you meet all the requirements to qualify for the EB-5 program. The exact documents necessary may be different for every applicant, but these are some common examples:
Information About the Business You’re Investing In: Depending on the business, this might include articles of incorporation, a state business license, partnership agreements, shareholder agreements, financial reports, and/or statements from business bank accounts.
Evidence of Your Investment Funds: If you’ve already invested in the business, submit bank statements or business records to prove that the business received your capital investment and how it’s been applied so far. If you haven’t yet invested, attach evidence about the assets you plan to invest, including proof that you own the assets and that you acquired them from a lawful source.
Information About Job Creation: Submit a detailed business plan that documents why the business will need at least 10 new full-time employees as a direct result of your investment.
Documentation of Your Management Role: This might be a statement listing your role in the business, job title, and management duties, or evidence of your role as a policymaker for the company.
Where Do You File Form I-526?
You must file Form I-526 by mail. Check the USCIS website to be sure you submit your application to the correct address. Your application packet should contain:
Your completed Form I-526
Your filing fee (either a check, money order, or a Form G-1450: Authorization for Credit Card Transaction)
If you want to receive email updates about your application status, include a Form G-1145: Request for e-Notification
You only need to send one copy of your application. You should also keep a copy for your records.
What’s the Filing Fee and Processing Time for Form I-526?
The current filing fee for a Form I-526 petition is $3,675. Filing fees change from time to time, though, so check the USCIS website to be sure you’re sending the correct amount. USCIS will reject your petition if you don’t include the correct filing fee.
Processing times for Form I-526 vary widely but have been slower than usual in recent years. Traditionally, processing Form I-526 for an EB-5 visa takes between 1-2 years. The average median processing time for Form I-526 in the last five fiscal years (2018 to 2022) has been about 29 months or 2.4 years. (See Table, below.) You can check the current estimated processing time for your service center on the USCIS website. Processing times also vary by country of origin. Because of visa application quotas, countries with high immigration demand, such as India and China, are currently experiencing longer wait times.
Keep in mind that these processing times are only for your Form I-526 petition, which is just the first step toward obtaining an EB-5 green card. After your Form I-526 is approved, you must then file a Form I-485: Application to Register Permanent Residence or Adjust Status (this is your green card application).
If you’re in the U.S., you likely already have a visa to enter the country. You can file Form I-485 simultaneously with Form I-526, while Form I-526 is pending, or after Form I-526 is approved.
If you’re outside the US, you’ll need to apply via consular processing, which can add several months to your EB-5 processing time. After your Form I-526 petition is approved, you must file a DS-260: Application for Immigrant Visa and Alien Registration to obtain an EB-5 visa, which you can use to enter the U.S. Then, you can proceed with Form I-485: Adjustment of Status.
If your Form I-485 application is approved, you’ll be granted conditional permanent residence, or a conditional green card, for two years. During those two years, you must carry out the business plan approved in your Form I-526 petition. At the end of the two years, you can file a Form I-829 Petition by Investor to Remove Conditions on Permanent Resident Status.
Historic USCIS Processing Times for Form I-526
|FY 2018||FY 2019||FY 2020||FY 2021||FY2022|
|Form I-526 Processing Time||17.9 months||19.0 months||31.1 months||32.5 months||44.2 months|
Table source: https://egov.uscis.gov/processing-times/historic-pt