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Frequently Asked Questions about EB-5, H-1B Self Employed, and Fiancé Visa Application for Chinese Nationals

By Yingfei Zhou, Esq.

Q: How can I apply for EB-5 visa?

A: There are two requirements on foreign investors seeking a green card. First, you must invest sufficient funds in an approved project of your choice. Second, ten new full-time jobs must be created as a direct result of that investment. The investment must be either in a new business or an existing business and the investment will spur either a 40% increase in net worth or employees of the existing business.

As to the application process, first, investor files an I-526 form. This form explains how the investment will create the required jobs. Upon approval of the I-526 (usually within eight months of submission), the investor, as well as the investor’s spouse and children under the age of 21 at the time of investment, will receive a conditional visa permitting two years’ residency in the United States. Second, 90 days preceding the second anniversary of I-526 approval, investor needs to file I-829 to remove the conditions on his or her green card to allow permanent residency.

Q: What is the cost of EB-5 visa?

A:  The investor is required to invest at least $1,000,000 or at least $500,000 if the investment is being made in a “targeted employment area”. Such areas must have an unemployment rate of 150% of the national average or are rural areas with a population of less than 20,000.

In addition, investor also needs to pay visa application fees in the amount of $5250, of which $1500 is for the I-526 filing and $3750 for the I-829 filing. Separate $85 biometric service fee will be charged for each conditional resident dependent. Investor will also be responsible for regional center administrative fees if the investor goes through a regional center, as well as attorney fees if an attorney is hired to handle the application.

Q: How long it takes to get EB-5 visa?

A: Usually, the whole process takes about 12 to 18 months for an EB-5 investor to get a conditional green card. Specifically, Step 1 is the I-526 which takes about 6 to 8 months to adjudicate. Step 2 is the consular processing or change of status filing, depending on whether the EB-5 investor lives in the United States or not, which can take 3 to 8 months.

Q: Can I use my own company to sponsor myself for H-1B visa?

A: Yes, with sufficient preparation. USCIS has clarified that, as a business owner, you can qualify for H-1B in your own company. The key to get such cases approved is to show that there is an employer-employee relationship between you and your business, as indicated by the fact that the company has the right to control your employment by having the authority to supervise your work, fire, and otherwise treat you as a regular employee of the company.

To show a valid employer-employee relationship, you may consider providing:

  • Term Sheet
  • Capitalization Table
  • Stock purchase Agreement
  • Investor rights Agreement
  • Voting Agreement
  • Organizational documents and operating agreements/bylaws
  • Employment Agreement
  • A description of the performance review process along with progress and performance evaluations
  • Letters from the directors/preferred shareholders explaining who has the right to control your work performance on a day-to-day basis, who will supervise you and evaluate your work product, and explaining the management structure of the company
  • Company organizational chart, demonstrating your supervisory chain

Q: Can start-up companies be H-1B visa sponsors?

A: Yes, with sufficient preparation. The key here is to prove that the new business is sound and viable and there is a bona fide job offer. Based on our experience, as long as you have sufficient funds to start the business operations, lease an office space, perform services in the beginning and pay yourself and other employees’ salaries, it should be considered as sufficient funding by USCIS. In addition, you need to prove that you are not hired to do administrative, sales or clerical work which does not qualify for H-1B.

For start-up H-1Bs, in addition to documents required in regular H-1Bs, you may also consider providing:

  • Articles of Incorporation/Organization
  • Bylaws/Operating Agreement
  • EIN proof
  • Organization/Incorporation Minutes
  • Business Licenses
  • Lease for business premises
  • Bank statements showing startup funding, wire transfers or tax returns
  • Photographs of the facilities to show sufficient production space to accommodate the work of H-1B employee
  • Proposed Organizational Chart of the business with the list of positions the company is planning to recruit for and the educational requirements
  • Business Plans
  • Contracts or other proof of projects the business is planning to engage in
  • Marketing Plans, brochures and other documentation of the services to be performed/products to be distributed

Q: Who can apply for Fiancé visa?

A: Anyone that has a fiancé (e) who is already a U.S. citizen or lawful permanent resident. You must also show that:

  • You intend to marry within 90 days of your fiancé(e) entering the United States;
  • You and your fiancé(e) are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment; and
  • You met each other, in person, at least once within 2 years of filing your petition, unless the requirement to meet would violate foreign culture or would result in extreme hardship.

Q: How to apply for Fiancé visa?

A: There are two steps. First, you file your Fiancé visa application I-129F with USCIS. After your fiancé visa application is approved by the USCIS in the United States, it is then forwarded to the U.S. embassy in your home country for final processing. The Consular processing procedures are different from country to country. If your marriage takes place within 90 days of your arrival in the U.S., you must file an Application for Adjustment of Status (Form I-485) that will provide you with conditional permanent residence status. This status is valid for two years. After two years, you can file a I-751 application to remove this conditional status and give you permanent residency status.

Q: What are the consular processing procedures of the U.S. embassy in China regarding your Fiancé visa application?

A: For Chinese Nationals, the US embassy in Guangzhou is in charge of all fiancé visa cases for China. Starting October 2013, all fiancé visa applicants are required to complete the DS-160 form. At the interview, you need to bring the confirmation page of your DS-160 form, passport, 2 passport photographs, original/certified birth certificate, marital status certificate, police certificate, sealed medical examination report, court and prison record, military record if applies, affidavit of support (I-134) and evidence of income, evidence of relationship, detailed resume, visa extension notice, records of previous immigration proceedings, and visa application fee. All documents not in English must be accompanied by certified English translations.

We strongly advise you not to give up your job, dispose property, or buy plane tickets until you actually receive your visa, because even if the Consulate determines that you are eligible for a visa, issuance can be delayed for a variety of reasons.