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Minimum Travel and Stay / Residency Requirements for EB-5 Investors

While investing in the EB-5 program may seem a bit confusing for some persons, the residency requirement may seem much more difficult for investors who wish to travel outside the United States often. For many investors who expected the process to permanent residency would only require them to obey the laws and meet the requirements of the program, are sometimes surprised at the residency requirements. This article will discuss the residency requirements that are expected with the EB-5 investor program.

What is the Requirement of Maintaining Green Card During the Conditional Green Card Period?

For simply maintaining residency status (in the conditional green card state) and your green card active, as long as you spend no more than 180 CONSECUTIVE days OUTSIDE of the U.S., you are good to go.

But when you go once every 6 months, you should create a paper trail by doing the following things:

  • Getting a social security number
  • Rent or Sub-Lease an apartment in your name
  • Open a bank account in your name
  • Get a credit card and do some shopping, travel, etc.
  • Get a driving license
  • Become a member of some library or some club (even professional clubs in your area of expertise)
  • File Tax Returns if applicable

And keep all these papers safe, in scanned copies, etc. Your attorney will submit them to USCIS when required.

If in case you’re unable to meet these requirements, due to other more important commitments, then there are legitimate ways in the USCIS process to address them via a re-entry permit, which your immigration attorney can file for you.

Re-Entry Permit (To Be Filed If You Cannot Travel to the US in 6 months or 1 year)

Very simple procedure of Re-Entry Permit Application needs to be filed, which your lawyer will file for you.

To maintain your Residence status (i.e. green card) – you have to keep from abandoning your residence in the US. You can have a trip out of the US greater than 180 / 365 days or longer without abandoning your residence. You can apply for a re-entry permit which allows you to stay out of the US for up to two years without abandoning your residence.

You can apply for a reentry permit (on form I-131) before you leave the US. You can depart before the reentry permit is approved. With such a reentry permit, you can also return to the US at any point until the reentry permit’s expiration date.

Reentry permits are issued for two years. At the expiry of these 2 years you can apply for a new one. The second such reentry permit will be granted for two years again. From the 3rd time one onwards, subsequent ones may be approved for two years or one year at a time depending on the officer.

Is there a different requirement to become a US Citizen?

Requirement to obtain US Citizenship:

If you are interested in obtaining U.S. Citizenship, then as you receive a conditional green card and enter the country, you should aim to spend at least 180 days per year in the U.S. for a period of 5 years. This can be any period of consecutive 5 years post the conditional green card.

For Naturalization – the individual has to be physically present in the US at least 50% of the time + 1 day for the last five years (so about 181 days per year). The clock for the five years of residence starts on the date of issuance of the first green card (during the conditional residence). Continuous residence is essentially that the individual does not have any trips outside of the US greater than 180 days. USCIS counts days out of the US differently than we do. For USCIS, if you go on a cruise and leave Friday and come back Monday at 8:00AM, then you have been gone for four days. That is how they count, the day you left, the days in between, and the day you arrive back in the US. If you have a trip out of the US greater than 180 days, you are presumed to have broken your “continuous residence” for naturalization purposes. However, you can rebut this presumption by showing that you still had a house, car, job, insurance, etc. in the US during the time you were away thru your attorney as well.

Even after the investor obtains his green card, they must maintain what is known as the Legal Permeant Residency (LPR) status.
In order to maintain the LPR status, the holder of the EB-5 investor visa must show an attempt to hold on to their permanent residency status. Holders of the visa must show an attempt to maintain this status by establishing roots in the country. If an investor is constantly leaving the country for long periods of time, Custom and Border Control officers may be concerned that that person is not taking their residency seriously and may not allow the investor back into the country.
To show that the investor has an intention of maintaining his or her status, there must be evidence that can be presented to the Customs and Border Control officers if questioned.

Here is a list of things which may provide officers with enough evidence to allow the investor to pass:

  • Family that reside in the US
  • Owning property in the US
  • Provide proof that the investor’s job is in the US or abroad
  • Provide proof of employment or their permanent personal residence is in the US
  • Secure a reentry permit if an extended stay abroad is known, this can be added to the individual’s passport as a supplement provided through the USCIS
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