The granddaddy of all the U.S. government’s investment visas is the coveted EB-5. It allows a successful investor applicant to obtain green cards for himself and members of his immediate family within a short time. Once the investor and family achieve this status they are allowed to live and work here as permanent residents for the rest of their lives. If they choose to do so, after being in green card status for five years, they can apply for their U.S. citizenship, never again having to worry about visa issues.
The following is a brief overview of the rigorous requirements for the EB-5. Accordingly, the application process is substantial, and like the E-2 non-immigrant investor visa it is document heavy, and most applicants find it difficult to understand which documents they are being asked for and what those documents look like. I can help you with that.
Note: This definition does not include noncommercial activity, such as owning and operating a personal residence or a passive investment in equities of indebtedness.
Indirectly investing in a Regional Center project heavily regulated by USCIS which has been set up by a third party for the purpose of pooling capital from multiple alien investors. The regional service entity must promote economic growth, regional productivity, and job creation.
The difference between a direct investment and an indirect investment through a Regional Center is that with the direct investment the investor is complete control of the enterprise and is directly
involved in its management. An investor who indirectly invests in a Regional Center project gives up control and management of his investment to a board of directors of the Regional Center entity. His control is limited by the number of his shares in that entity.
NOTE: There are many details which need to be evaluated and discussed to confirm the applicant meets the requirements. Additionally, I do not advise my clients to invest in Regional Center projects. There have been too many Regional Center failures where the client loses his investment and his green card. Please contact me directly to discuss your situation.
Note: Future adjustments will be tied to inflation. These adjustments will occur every five years.
Capital means cash and all real, personal, or mixed tangible assets owned and controlled by the immigrant investor. All capital will, and must be, evaluated at fair-market value in U.S. dollars.
Note: There are exceptions to what is considered as capital. Immigrant investors must establish that they are the legal owner of the capital invested. Capital can include their promise to pay (a promissory note) in certain circumstances.
A Targeted Employment Area can be, at the time of investment, either:
A rural area is any area other than an area within a metropolitan statistical area (M.S.A.) (as designated by the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more according to the most recent decennial census of the United States.
A high-unemployment area consists of the census tract or contiguous census tracts in which the new commercial enterprise is principally doing business, which may include any or all directly adjacent census tracts, if the weighted average unemployment for the specified area based on the labor force employment measure for each tract is 150% of the national unemployment average.
An EB-5 Investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees within a 2-year period after filing his application.
In the case of a troubled business, the EB-5 may rely on job maintenance.
A troubled business is one that has been in existence for at least two years and has incurred a net loss during the 1- or 24-month period before the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20% of the troubled business’ net worth before the loss. When determining whether the troubled business has been in existence for two years, USCIS will consider successors in interest to the troubled business when evaluating whether they have been in existence for the same period of time as the business they succeeded.
A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including a conditional resident, temporary resident, asylee, refugee, or a person residing in the United States under suspension of deportation. This definition does not include immigrant investors; their spouses, sons, or daughters; or any noncitizen in any nonimmigrant status (such as an H-1B nonimmigrant) or who is not authorized to work in the United States.
Full-time employment (full-time positions) means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the regional center program, full-time employment means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.
A job-sharing arrangement where two or more employees share a full-time position will count as full-time employment provided that the hourly emolument requirement is met. This definition does not include combinations of part-time positions even if, when combined, the positions meet the hourly requirement.
Jobs that are intermittent, temporary, seasonal, or transient do not qualify as permanent full-time jobs. However, jobs that are expected to last at least two years are generally not considered intermittent, temporary, seasonal, or transient.
As is evident, the investor must present an application which makes clear to USCIS that his project fits within these many, and others not discussed above, requirements. The attorney’s role is to advise, and work with, the investor to guide the investor from the very early days in creating and structuring his enterprise in such a fashion that it achieves both the investors business plans and that it clearly meet these requirements. Done correctly, the investor will have a successful business enterprise and will have built a solid relationship with the United States government. I enjoy working with truly creative entrepreneurs in this challenging process.