How to Get a US EB5 Visa from Thailand

The EB-5 Immigrant Investor Program is one of the fastest pathways to US permanent residency from Thailand. It allows individuals who make significant financial contributions to the US economy to obtain green cards for themselves and immediate family members, including spouses and unmarried children under 21. With an EB-5 green card, you and your family can live, work, and study anywhere in the United States.

There are two routes to the EB5 visa: investment in a new commercial enterprise or investment in the Regional Center Program. Each pathway requires a capital investment in a qualifying venture that creates or preserves US workers' jobs. Both EB-5 visa routes are available to Thai investors who invest in stimulating the American economy and meet the visa requirements.

Establishment of the EB5 Visa

Established in 1990, the traditional EB-5 program was designed to stimulate economic growth through job creation and foreign investment. The program derives its name from the employment-based fifth preference visa granted to participants.

In 1992, Congress established the Regional Center Program as an alternative for EB-5 investors. This program allows you to invest capital in projects designed to stimulate the economy in specific US regions. These projects must be sponsored by regional centers that are approved by US Citizenship and Immigration Services (USCIS).

Types of EB-5 Investments

Before applying for the EB-5 visa, you must make a qualifying investment in either a "new commercial enterprise" or a regional center.

New Commercial Enterprise

The original EB-5 investment route is to contribute capital to a "new commercial enterprise." This means that the enterprise must have been:

• Established after November 29, 1990, or
• Established before November 29, 1990, but significantly restructured or reorganized to constitute a new commercial entity, or
• Expanded through the EB-5 investment to result in at least a 40% increase in net worth or employee count.

A "new commercial enterprise" encompasses a broad range of business structures including, but not limited to, corporations, partnerships, limited liability companies, and sole proprietorships. The enterprise must be for-profit and engaged in lawful business activities.

Regional Centers

If you are more interested in making a passive investment without the responsibilities of business ownership or management, you might consider investing in a regional center. Regional centers pool funds from multiple foreign investors to finance large-scale projects, typically in economically disadvantaged areas. Because of this, the minimum investment for Regional Center Projects is often reduced and the job creation requirement can be met through both direct and indirect employment (see below).

The majority of EB-5 investments are channeled through regional centers because they allow for indirect job creation and investors can take a more passive role. Additionally, Regional Center Projects often offer potential benefits such as expedited processing times and additional support services for investors. However, you should be aware that you have limited control over a regional center investment.

EB-5 Eligibility

Job Creation Requirements

The job creation requirements vary depending on your investment type. Regional center investments allow for indirect job creation, while the traditional EB-5 route requires direct job creation.

Direct job creation involves a traditional employer-employee relationship between the business and its workers. Indirect jobs, on the other hand, are jobs created in other companies as a result of the enterprise's operations and increased demand for goods or services.

Job Creation Requirements for a New Commercial Enterprise

If you are investing in a standard "new commercial enterprise" outside of a regional center, your investment should create at least 10 full-time jobs (at least 35 hours per week) for qualified US employees. Employment positions that are temporary, seasonal, or short-term in nature do not qualify as permanent full-time jobs. Conversely, positions anticipated to last at least two years are typically considered to be permanent full-time roles. All full-time positions counted towards job creation requirements must be directly created by the business itself or its wholly-owned subsidiaries, meaning the business in which you invest must be the direct employer of its workers.

Job Creation Requirements for a Regional Center Business Investment

For regional center businesses, both direct and indirect employment can contribute to the job creation requirement. Up to 90% of the necessary jobs for regional center investors can be filled through indirect job creation.

Job Creation Requirements for a Troubled Business Investment

If a business is struggling financially, you may be able to meet the job creation requirement by preserving existing jobs rather than creating new ones. In this case, you must demonstrate that the number of employees will remain at or above the pre-investment level for a minimum of two years.

A business qualifies as troubled if it has operated for at least two years and experienced a net loss of at least 20% of its previous net worth within the 12 or 24 months leading up to your Form I-526 priority date.

Capital Investment Requirements

For the EB-5 visa, your investment funds can include cash or any physical assets that you legally own or control. These assets must be valued at their current market price in U.S. dollars, and you will need to provide proof of your legal ownership of them.

However, certain types of funds and investments are not eligible. These include money obtained illegally, investments made as loans or debt to the business, investments with guaranteed returns, and those that include repayment agreements. Still, the business may offer a buyback option, which it can choose to exercise at its discretion.

The minimum investment amount required for an EB-5 visa petition filed on or after March 15, 2022, are:

• 1,050,000 USD for investments outside of Targeted Employment Areas (TEAs)
• 800,000 USD for investments within TEAs (see below)

It's important to note that these investment amounts are subject to change. Future adjustments will be based on inflation rates and will occur every five years starting in January 2027.

Targeted Employment Areas (TEAs)

A TEA is classified as either a rural area or an area with high unemployment.

• Rural Area: A geographic region outside of a metropolitan area and any city or town with a population of less than 20,000 people based on the latest US census.
• High Unemployment Area: A region with an unemployment rate of at least 150% of the national average.

Regional centers are frequently situated in TEAs, which allows you to use the reduced investment requirement.

Lawfully Sourced Investment Funds

You must demonstrate that the funds used to invest in the venture were obtained legally. All funds must be traceable to lawful activities. To prove the lawful source of funds, you will need to provide evidence like bank statements and tax returns.

Common examples of lawfully sourced funds include:

• Income from employment: salaries, wages, and bonuses
• Income from property sales: profits from selling real estate
• Loans secured by real estate: funds borrowed using property as collateral
• Business sale proceeds: earnings from selling a business
• Inheritances: funds received from a deceased individual's estate
• Gifts: monetary gifts from family or friends, provided the gift giver can also demonstrate the lawful source of their funds

This list is not exhaustive and other lawful sources of funds may be considered.

How to Apply for an EB-5 Visa

Before applying for the EB-5 visa, you should ensure that you can meet the investment requirements. While there are no specific personal requirements to apply for the visa, you should generally have a clean immigration history and criminal record.

Once you're ready to start the application process, your immigration attorney can guide you through the following steps.

Step 1: Select Your Investment

The first step in the EB-5 process is identifying and selecting a suitable investment project that aligns with the visa program’s criteria. You can establish a new commercial enterprise anywhere in the United States or invest in a project sponsored by a regional center.

A regional center is a third-party organization approved by the government that highlights and sponsors job creation opportunities within a geographical area. They will be able to tell you what investment opportunities there are within their area which will meet the criteria for the visa.

You can find a list of government-approved EB-5 investment regional centers here.

Step 2: Submit Your Form I-526 Petition

Once you’ve made your investment, the next step in applying for an EB-5 visa from Thailand is to file either Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, depending on your chosen investment.

This formal petition provides documentary evidence of your capital contribution and the project’s eligibility for the EB-5 program. USCIS will verify the origins of the investment funds, the project’s authenticity, the business plan’s feasibility, and the investment area’s qualification as a Targeted Employment Area (TEA), if applicable.

If you have invested in a new commercial enterprise, you must demonstrate that:

• You have made a qualifying investment in a for-profit commercial enterprise.
• You are actively involved in the business as a manager.
• The investment will create at least ten full-time jobs for qualified US workers or, if the business is troubled, that employee levels will remain the same for at least two years post-investment.

If you have invested in a regional center, you must demonstrate that:

• You have made a qualifying investment in a USCIS-approved regional center.
• Your investment is eligible for Targeted Employment Area (TEA) designation (if applicable).
• The investment will create at least ten full-time jobs for qualified US workers.

USCIS can take anywhere from several months to several years to process these petitions.

Step 3: Visa Bulletin

When USCIS receives your petition, they will provide a priority date. This date is essentially your place in the visa queue. USCIS updates this "queue" with a monthly Visa Bulletin. The Visa Bulletin indicates when a visa has become available for your application date and category.

Step 4: Apply for a Green Card

After your Form I-526 petition is approved, you can proceed with the application for conditional permanent residency. The specific process varies depending on your location.

Applying from Outside the US

If you reside in Thailand, your application will undergo consular processing. You must complete a Form DS-260, Immigrant Visa and Alien Registration Application, and a medical examination with an authorized physician. You will also be expected to attend a visa interview at the US Embassy in Bangkok. The visa interview is normally scheduled within several months of the Form I-526 petition approval if there is a visa al. Once your visa is issued, you have 6 months to enter the US.

Applying from within the US

If you reside in the United States, you must apply for an Adjustment of Status (AOS) by submitting a Form I-485, Application to Register Permanent Residence or Adjust Status. This can be filed concurrently with the Form I-526 or when a visa becomes available on the Bulletin after the Form I-526 is approved. Even though you are already in the US, you may still be required to attend a visa interview. USCIS normally takes around 6 months to a year to process Form I-485 applications.

All applicants must submit the required documentation and pay the appropriate fees. If your application is successful, you will be issued a conditional green card valid for two years.

Step 5: Remove Conditions from Permanent Residency

After two years in the US with your conditional green card, you should apply to remove the conditions and receive full permanent residency. To remove the conditions, you must file a Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status within 90 days of the conditional green card's expiration date. The I-829 petition requires comprehensive documentation demonstrating the ongoing viability of the invested enterprise, including job creation and capital investment.

Once the Form I-829 is approved, you and your eligible family members receive unconditional permanent residency, allowing you to live and work in the United States indefinitely. A subsequent five-year period of continuous residency qualifies you to apply for US citizenship.

It is important to note that the I-829 process can be lengthy, with average processing times ranging from 2 to 4 years. However, timely filing of the I-829 petition maintains your conditional permanent resident status while the application is pending.

Required Documents for an EB-5 Visa Application

While the specific document requirements can vary based on your individual circumstances, you should expect to provide some of the following:

• Identity Documents: These include your passport, national identity card, and birth certificate
• Civil Status Documents: This might include marriage certificates or divorce decrees if you are or have been married. If you have any children applying with you, you should also provide their birth certificates.
• Financial Documentation: This category includes bank statements, tax returns, proof of asset ownership, and detailed explanations of the source of investment funds.
• Investment Project Documentation: You must provide evidence demonstrating that your investment meets the EB-5 program's criteria. This might take the form of a thorough business plan. A comprehensive plan should outline the company, its goals, products, services, market analysis, operations, marketing strategy, financial projections, and organizational structure.
• Background Checks: You must provide a police clearance certificate. If you have a criminal history, you must also submit any relevant legal or court documents.

Documents not originally issued in English may require official translations and verification. Your immigration attorney will provide specific guidance on acceptable documentation and the necessary translation and verification procedures.

EB-5 Visa Cost

The Department of State (DOS) and USCIS update their filing and application fees regularly, so it's important to check official websites for the most up-to-date information. In August 2024, you should expect the following costs when applying for an EB-5 visa.

If you are applying from Thailand:

• Form I-526: 11,160 USD or Form I-526E: 12,160 USD
• Form DS-260: 345 USD
• Form I-829: 9,525 USD

If you are applying from within the US:

• Form I-526: 11,160 USD or Form I-526E: 12,160 USD
• Form I-485: 1,440 USD (if applying from the US)
• Form I-829: 9,525 USD

You should also factor in costs for the medical exam, transportation and travel expenses, and obtaining civil and legal documents.

If you are investing in a Regional Center Program, you will also need to pay administrative fees. These normally range from 50,000 to 80,000 USD. These fees cover the center's services and the costs of professionals like attorneys, economists, and business plan writers who are involved in the investment process.

Benefits of the EB-5 Visa

The EB-5 visa offers significant advantages for you and your family including:

• Permanent Residency and Citizenship: Successful EB-5 applicants can obtain a green card which opens up the path to US citizenship.
• Family Benefits: Your spouse and unmarried children under 21 can also qualify for green cards.
• Education Opportunities: Your children can attend school in the US.
• Freedom to Live and Work: EB-5 visa holders can reside and work anywhere in the United States without requiring sponsorship or additional work authorization.
• Travel Privileges: You are free to travel internationally for brief trips.

Alternatives to the EB-5 Investment Visa

If you're considering alternatives to the EB-5 visa, there are several other options depending on your qualifications and goals:

1. O-1 Visa: This nonimmigrant visa is for individuals who possess extraordinary ability in fields such as science, arts, education, business, or athletics. Unlike the EB-5, it does not require a financial investment, but instead, you need to demonstrate a high level of achievement and recognition in your field.
2. L-1 Visa: This visa is available to executives, managers, or employees with specialized knowledge transferring from a foreign branch to a US branch of the same company. While it does not lead directly to a green card like the EB-5, it allows you to work long-term in the US and can be a stepping stone to permanent residency.
3. E-2 Visa: This visa is available to investors from countries with which the US has a treaty or agreement, including Thailand. While the E-2 visa requires a substantial investment in a US business, the required investment is significantly lower than the EB-5. However, the E-2 does not provide a direct route to permanent residency.

Reputable US Visa Lawyers in Thailand

Siam Legal International is a full-service law firm with over two decades of experience helping Thai citizens become US permanent residents. Our team of skilled immigration attorneys is dedicated to providing personalized guidance and support through the visa application process. Your immigration attorney will:

• Guide and advise throughout the EB-5 process.
• Evaluate if the EB-5 visa is the best immigration option based on your goals and circumstances.
• Assess the eligibility of your chosen investment.
• Analyze the source of your investment funds and determine the necessary documentation.
• Prepare and submit the EB-5 application.
• Respond to any Requests for Evidence (RFEs) for I-526, Adjustment of Status, and I-829 petitions and applications.

Contact us today for a comprehensive consultation and start your journey to becoming a US lawful permanent resident.

EB-5 Visa Frequently Asked Questions

What types of investments qualify for an EB-5 visa?

Qualifying investments for the purposes of an EB-5 visa include:

• Starting a new business
• Investing in an existing business
• Purchasing an existing business
• Investing in a Regional Center Project

What is a regional center?

A regional center is a business entity authorized by the US government to pool investment capital from multiple EB-5 investors for large-scale economic development projects. These projects aim to stimulate economic growth, create jobs, and increase regional productivity. Regional centers often focus on developing real estate projects such as hotels and resorts.

What is the difference between investing in a regional center and making a direct investment?

The EB-5 program offers two primary investment paths: direct investment or investment through a regional center. While both routes lead to permanent resident status, they differ significantly in terms of investor control, risk, and job creation requirements.

With direct investment, you have direct ownership and control over the business and therefore carry potentially greater risk. You must create 10 full-time jobs and typically invest more than a regional center program.

For a regional center investment, your funds are pooled with others' funds and the center manages the project. Consequently, you have limited control over the day-to-day operations. Regional center projects typically require a lower minimum investment.

I already have a business in the US. Can I use it as my EB-5 investment?

Yes, you can potentially use your existing US business to qualify for an EB-5 immigrant visa. However, your business must meet all the requirements for an EB-5 visa, such as creating or preserving a minimum number of jobs. You should consult with an immigration attorney to determine if your business qualifies.

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