Must-have EB-5 documentation involved in the application process - EB5Investors.com
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Must-have EB-5 documentation involved in the application process

EB5Investors.com Staff

By Marta Lillo

The EB-5 application process does not require “one size fits all” documentation because the U.S. Citizenship and Immigration Services (USCIS) may need extraordinary or additional paperwork when necessary.

However, there is a set of standard documents that EB-5 investors will come across depending on their country of origin, the nature of their EB-5 investment, and the stage in the application process they are in, among other factors.

Applicants must provide some of these documents; others are mandatory by the regional center or developer of the EB-5 investment, the New Commercial Enterprise (NCE), while some have mixed origins.

Basic EB-5 documentation

Most of the following documentation is primarily required throughout the process and mostly for filing the I-526 form, unless otherwise indicated:

Personal documentation

Private and personal documents, consisting of private and public civil records, constitute primary evidence for the USCIS. The first include:

  1. Identification cards
  2. Passports
  3. Education credentials
  4. Proof of domicile
  5. U.S. status
  6. Birth certificate showing birth in the United States
  7. U.S. Naturalization Certificate
  8. U.S. passport/passport card
  9. Form I-551 “green card” or
  10. A foreign passport containing Form I-94 with I-551 stamp (if entered the U.S. by land) or an electronic Form I-94 record (if by air or sea). 

Meanwhile, public civil documents include the following:

Government-issued

  1. Birth certificates (applicant and derivative family members)
  2. Marriage certificate (if it applies)
  3. Marriage termination documentation (divorce papers, annulments, etc.)
  4. Adoption certificate (of applicants or dependents)
  5. Court and prison records
  6. Military Records
  7. U.S. Security Number (if applicable)
  8. Police certificates in all countries the investor has lived (if the investor has lived in different countries within a range of time, depends on the country).

Private secondary evidence

  1. Employment history (must indicate the employer’s full legal name, employment address, job title, and work dates for each position). Resumes often apply.
  2. Copy of original ink handwritten signature valid for filing purposes (according to USCIS standards).

In case the EB-5 investor is an immigrant

  1. Permanent visa or resident card
  2. Employment Authorization Document, or any purpose authorized by the Immigration and Nationality Act (INA)
  3. Form I-94 of Arrival-Departure Record
  4. Application to adjust status concurrently (I-485 Application)
  5. Removal, exclusion, or deportation accounts before the Department of Homeland Security (DHS) or the Department of Justice’s Executive Office for Immigration Review (EOIR) (if applicable).

Documentation required for an EB-5 New Commercial Enterprise (NCE)

Organizational documents

  1. Articles of incorporation
  2. Certificate of merger or consolidation
  3. Partnership agreement
  4. Certificate of limited partnership
  5. Joint venture agreement
  6. Business trust agreement
  7. Certificate evidencing authority to do business in a State or municipality (or a statement saying such a certificate is not required)
  8. In the case of an expanded business, proof that the required capital was transferred to an existing business, which resulted in a substantial increase in net worth or number of employees of the enterprise, not limited to:
  9. Stock purchase agreements
  10. Investment agreements
  11. Certified financial reports
  12. Payroll records
  13. Any similar instruments, agreements, or documents evidencing the investment and the resulting substantial change.

Investment evidence

  1. Copies of bank statements showing amounts deposited into the U.S. business accounts for the NCE
  2. Assets purchased for use in the NCE
  3. Property transferred from abroad for use in the NCE
  4. Monies transferred or committed to be transferred to the NCE in exchange for shares of stock that cannot be redeemed at the holder’s request or any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing that is secured by assets owned by the petitioner (other than those of the NCE) and for which the petitioner is personally and primarily liable.

Required paperwork for an EB-5 investment

Regional center or developer records

  1. USCIS-approved entity designation
  2. NCE identification number (NCEID)
  3. Prior I-526/green card approvals
  4. Copy of the receipt notice from the regional center’s Application for Approval of an Investment in a Commercial Enterprise (Form I-956F).

EB-5 Project offering memoranda

These are documents provided by the regional center or developer about the project.

  1. Economist report
  2. Private Placement Memorandum
  3. Operating Agreement
  4. Subscription Agreement
  5. Escrow agreement
  6. Limited partnership agreement: investor’s rights and obligations
  7. Evidence proving that the EB-5 investor will be in a policymaking or managerial role at the EB-5 project
  8. Business plan
  9. Project information
  10. Due diligence report
  11. Developer information
  12. Job creation report
  13. Relevant tax records
  14. Form I-9s or other similar documents, if the employees have already been hired, or state when they will be. 
  15. Lending structure
  16. Title insurance
  17. Evidence, if applicable, that the project has created or will create employment in a Targeted Employment Area (TEA).

Investment in an operating business or Lawful Business Entity

Documentation that the investor is actively invested in or in the process of investing in a lawful business entity validly, which can be classified as:

  • Formed after Nov. 29, 1990, and validly operating under the laws of U.S. jurisdiction. 
  • For investments made before Nov. 29, 1990, evidence must show either a business restructuring or a 40% increase in net worth or number of employees.

The evidence can include:

  1. Copies of articles of incorporation
  2. Certificate of merger or consolidation
  3. Partnership agreement
  4. Certificate of limited partnership
  5. Joint venture agreement
  6. Business trust agreement or other similar organizational document
  7. Proof that on a date after Nov. 29, 1990, the necessary amount of capital was transferred to an already established business, resulting in a significant increase in either the net worth or number of employees.

Investment in a troubled business

  1. Job Creation evidence that the number of existing employees is being or will be maintained at no less than the pre-investment level for at least two years. 
  2. Photocopies of tax records, Forms I-9s, or other relevant documents for the qualifying employees and a comprehensive business plan.

Evidence the EB-5 project is in a TEA

To qualify for TEA (Targeted Employment Area) designation, the NCE will provide evidence that the project is in a rural or high unemployment area (HUA). 

For rural areas

  1. Documents proving the NCE is principally doing business within a jurisdiction outside any standard metropolitan statistical area (MSA) and outside any city or town with a population of 20,000 or more in the most recent U.S. Census.

For HUAs

  • Unemployment data for the relevant MSA or county where the NCE is principally doing business demonstrating that it has an average unemployment rate of 150% of the national average rate.
  • A letter from the state government certifying that the NCE is located in a high unemployment area.

Documentation for an EB-5 petitioner’s investment in the NCE

  1. Copies of bank statement(s) showing amount(s) deposited in NCE’s U.S. business account(s).
  2. Assets purchased for use by the NCE include:
  3. Invoices
  4. Sales receipts
  5. Purchase contracts, if they identify the assets with the purchase cost, date of purchase, and the purchasing entity
  6. Property transferred from abroad for use by the NCE including, but not limited to:
  7. U.S. Customs and Border Protection commercial entry documents
  8. Bills of lading
  9. Transit insurance policies containing ownership information and information to identify the property and indicate its fair market value.
  10. Evidence of money transferred or committed to the NCE in exchange for stock shares may not include terms requiring the NCE to redeem it at the holder’s request.
  11. Evidence of any loan or mortgage agreement, promissory note, security agreement, or other proof of borrowing secured by the petitioner’s assets (other than those of the NCE) and for which the petitioner is personally and primarily liable
  12. Evidence of business activity of the NCE
  13. Invoices
  14. Purchases
  15. Contracts

Documents involved in direct EB-5 form filings

Each stage in the EB-5 application requires a specific form: I-526, I-485, DS-260, and I-829. The current application is online, and investors should attach part of the abovementioned documents depending on the instructions on the form. 

Other documents associated with form filing include:

  1. Decision statement (digital)
  2. Filing fee receipt (digital)
  3. Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative Notice of attorney of representative (digital)
  4. Cover letter (attorney writes it)

Other associated documents are:

  1. Check certificates
  2. Credit card payment statement
  3. Attorney fees
  4. Other legal and business counsel fees

Proof of legal Source of Funds (SOF) for an EB-5 investment

Whatever the source, the USCIS and the investors must trace the funds back to their origin and authenticate every dollar placed in the EB-5 investment. The number of documents will depend on the applicant’s source of capital and country of origin. They may include:

  1. Proof of employment and income
  2. Net worth certificates
  3. U.S. or country of origin bank account statements
  4. Debt and loan statements
  5. Property ownership documents
  6. Sale or loan of property documents
  7. Bank promissory note
  8. Gift letters (demonstrating that the investor obtained this capital through lawful means and that the funds were a gift provided in good faith and not to circumvent any limitations imposed on permissible sources of capital, including, but not limited to, proceeds from illegal activity).
  9. Tax statements and returns (minimum of 3-5 years)
  10. Business license/registration
  11. Company-audited financial reports
  12. Tangible assets
  13. Insurance proceeds
  14. Third-party identity used to transfer capital into the U.S. on the investor’s behalf. It may include any money-service business or third-party exchanger.
  15. Monetary judgments against the petitioner from any court in or outside the United States within the past 15 years
  16. Identity of any person who transferred capital used for your investment into the United States on your behalf.

Other EB-5 information the USCIS might demand

  1. Requests of Evidence (ROE)
  2. Notices of Intent to Deny (NOIDs) 
  3. Requested materials for ROE or NOIDS

Best practices to keep in mind when submitting EB-5 documents

When filing documentation for an EB-5 visa application, investors must follow the best practices recommended by the USCIS and immigration attorneys.

First, the agency officers work under the “best evidence rule,” which requires the original document where the facts are under questioning in an application. However, legible photocopies of documents are generally accepted unless specific instructions demand the original version. If EB-5 investors submit original documents that the USCIS does not require, the agency may retain them as part of their record and not automatically return them; it could even destroy them upon receipt.

Secondly, the USCIS suggests providing records from the last five to seven years and sometimes 15 years (depending on the form). If some of the documentation is more recent than this, applicants must justify why they are submitting it and how it is legal.

Thirdly, Chapter 6 of the USCIS Policy Manual outlines the two types of evidence that the agency considers: primary and secondary. Primary evidence is sufficient to prove an eligibility requirement and includes government-issued documents such as a birth certificate, marriage license, divorce certificate, and official travel documents. On the other hand, secondary evidence may demonstrate that a fact is likely genuine, but it does not come from a primary source. Examples of secondary evidence include employment records, property records, and religious records. However, investors must demonstrate that the required primary evidence does not exist or is unobtainable.

Finally, investors should accompany their foreign language documents with complete, certified English translations. All translations must include the translator’s printed name, date, and contact information. USCIS may request additional validation if necessary.

DISCLAIMER: The views expressed in this article are solely the views of the author and do not necessarily represent the views of the publisher, its employees. or its affiliates. The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public; do not include confidential information in your question.