EB-5 Visa Program for Indian Nationals: Key Investment Framework Insights

For Indian nationals seeking permanent residency in the United States, the EB-5 Visa Program presents a promising pathway. By investing in a qualifying U.S. business, investors can secure a Green Card for themselves and their immediate family members. However, selecting the right EB-5 project is crucial—not only for successfully obtaining permanent residency but also for safeguarding the investor’s capital. Due diligence is key to navigating this process.

With the passage of the EB-5 Reform and Integrity Act of 2022, new opportunities have emerged, especially for investors targeting rural EB-5 projects. These projects come with significant benefits, including faster I-526E petition processing times and access to visa set-asides, which can help Indian nationals avoid long wait times often experienced by applicants from high-demand countries like India. Here’s a guide to help Indian investors navigate the most important aspects of choosing an EB-5 project:

Understanding Processing Times and Backlogs

A major challenge for Indian investors applying for U.S. Green Cards is the significant backlog in EB-2 and EB-3 visa categories. The EB-5 program helps alleviate this by offering targeted employment area (TEA) quotas, introduced by the 2022 EB-5 Reform and Integrity Act (RIA). These quotas are particularly beneficial for projects in rural or high-unemployment areas, which are not currently backlogged. This can significantly speed up the Green Card process.

Rural EB-5 projects receive priority processing, with some approvals happening as quickly as 12 months. Additionally, the U.S. Citizenship and Immigration Services (USCIS) allows for EB-5 concurrent filing, meaning investors can submit both Form I-526E and Form I-485 at the same time. This concurrent filing enables Indian investors already in the U.S. on a valid visa to live, work, and study while their EB-5 application is being processed. Staying informed about processing times and maintaining regular communication with your immigration lawyer is essential to efficiently plan your timeline.

Job Creation Without Employee Sponsorship

Unlike other employment-based visa categories, the EB-5 program does not require employer sponsorship, giving Indian investors more independence and flexibility. However, investors must still meet the program’s key requirement: creating at least 10 full-time jobs for U.S. workers.

This can be achieved through direct or indirect job creation when investing through a regional center. It is crucial to select projects with solid job creation strategies, especially in light of the RIA, which has imposed new limitations on indirect job creation for construction projects. Indian investors should carefully review whether a project is likely to meet these requirements, especially if choosing a more hands-on, direct investment approach. For those opting for a regional center investment, working with a center that has a strong reputation and proven success is vital.

Sufficient EB-5 Job Creation: Securing Permanent Residency

Once USCIS approves an investor’s I-526E petition, the project must create at least 10 jobs for each investor to receive their permanent Green Card. For Indian investors, ensuring the project has a reliable job creation strategy—especially one based on construction spending—is essential to minimizing risk. Projects that have already started construction or are using bridge financing often have a greater likelihood of meeting job creation requirements, providing more security for the investor.

Key Due Diligence Questions:

• Has the project begun construction?
• How many jobs have already been created, and are these primarily from construction rather than revenue generation?

Managing Family Members’ Status

One of the major advantages of the EB-5 program is that it extends immigration benefits to family members of the primary investor, including the spouse and unmarried children under the age of 21. This allows Indian families to move to the United States together. However, proper planning and management of family members’ status is crucial throughout the EB-5 process to avoid complications.

Investors should include all eligible family members in their initial petition to prevent delays. Once the application is submitted, family members can begin to transition into U.S. life. For example, spouses can apply for work authorization, and children can enroll in schools. Managing these processes effectively can help your family settle into life in the U.S. smoothly.

Currency Exchange and International Transfer Challenges

Indian investors often face challenges with international money transfers due to currency exchange regulations and restrictions. The Reserve Bank of India’s (RBI) Liberalized Remittance Scheme (LRS) governs how much money can be sent abroad, which can impact the speed at which EB-5 investments are funded.

Investors should work closely with financial institutions and legal advisors who are experienced in navigating these regulations. By properly documenting currency exchanges and fund transfers, Indian investors can ensure compliance with both Indian and U.S. financial regulations, avoiding delays in the EB-5 process.

Properly Structured Capital Stack: Reducing Financial Risk

Understanding how a project’s financing is structured is essential to evaluating its financial stability. The capital stack includes senior loans, developer equity, and EB-5 capital. For Indian investors, choosing a project with a well-structured capital stack is key to mitigating financial risks. Projects backed by reputable developers and significant developer equity are generally more secure. Projects with a high percentage of EB-5 financing or without senior loans are riskier and should be avoided.

Key Due Diligence Questions:

• What percentage of the project’s capital is made up of senior loans, developer equity, and EB-5 investments?
• Has the senior loan been drawn?

Feasible Exit Strategy: Ensuring Return on Investment

A project’s exit strategy outlines how investors will get their investment back, typically through selling or refinancing the project after completion. Indian investors should prioritize projects with a clearly defined and feasible exit strategy, as this ensures the return of capital once Green Cards are secured.

Projects that provide third-party appraisals, conservative financial projections, and a clear track record of success are more likely to offer a stable exit strategy.

Key Due Diligence Questions:

• What is the project’s exit strategy, and is it realistic?
• Does the developer have a track record of successful exits?

Guarantees and Protections: Minimizing Risk

Indian investors should seek projects offering guarantees and protections that can help minimize financial and immigration risks. For example, projects offering I-526E refund guarantees ensure that investors will be reimbursed if their petition is denied. Similarly, completion guarantees ensure that the project will be finished even if it exceeds its budget, reducing both financial and job creation risk. However, be cautious of projects offering principal repayment guarantees, as these may conflict with the “at-risk” requirement of the EB-5 program.

Key Due Diligence Questions:

• Does the project offer a refund guarantee if the I-526E petition is denied?
• Are there clear repayment terms, and is there a completion guarantee?

Planning for U.S. Citizenship

While obtaining a Green Card through the EB-5 program is a significant milestone, many Indian investors ultimately seek U.S. citizenship. To be eligible for naturalization, Green Card holders must meet certain residency requirements, such as living in the U.S. for at least five years and being physically present for half that time.

Investors should also be aware of legal obligations, such as paying taxes and avoiding any actions that could impact their eligibility for citizenship. Once residency requirements are met, Indian investors can begin the naturalization process, which includes submitting Form N-400, attending an interview, and taking the Oath of Allegiance.

By planning for citizenship early, Indian investors can ensure they are well-prepared to navigate the naturalization process.

Final Thoughts for Indian Nationals

The EB-5 visa program offers a direct path to U.S. residency and eventual citizenship for Indian investors. With targeted strategies such as selecting rural projects with faster processing times and working with reputable developers, investors can maximize their chances of success. Due diligence, careful financial planning, and staying informed throughout the process will help Indian nationals achieve their goals of securing permanent residency and building a future in the United States.