EB-5 for Immigrant Investors
The EB-5 immigrant visa category allows a person and his or her family members to get a Green Card by investing a certain amount of money in the U.S. and creating or saving at least 10 full-time jobs for citizens or permanent residents.
To qualify under the EB-5 category, the new enterprise must: (1) be one in which the person has invested (or is in the process of investing) at least $1 million (2) benefit the U.S. economy; and (3) create full time employment for at least 10 U.S. workers. Moreover, the investor must have at least a policy-making role in the enterprise.
In addition, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth. These individuals must invest at least $500,000 in a “targeted employment area”.
EB-5 visa holders become conditional permanent residents for two (2) years following the approval of an adjustment application or admission under an immigrant visa.
Immigration Law Associates, PC is well versed and experienced in helping foreign entrepreneurs comply with the immigration requirements necessary to establish a viable EB-5 enterprise to gain permanent resident status. To enquire further about your options under this program, please Contact Us or call 847-763-8500.
The EB-5 Program
To encourage immigration through the EB-5 category, Congress created the EB-5 category as a temporary pilot program in 1993. It has now been renewed several times and is currently due to expire on September 30, 2012. Efforts to extend the pilot program again is underway in Congress. The program sets aside 3,000 Green Cards each year for foreign investors who invest in “designated regional centers.” Click here to see a list of Regional Centers.
Under the program, it is sufficient if 10 or more jobs will be created directly or indirectly as a result of the immigrant’s investment. The investor’s enterprise itself is not required to employ 10 U.S. workers. Convincing proof of the job creation (or in some instances, job retention) is required in order for an investor to remove the conditions on his permanent residence after two years.
Elements of EB-5 Visas:
- The enterprise must be new (formed after November 29, 1990) and it must be a commercial enterprise.
An enterprise formed before this date may qualify if an investor “restructures” or “expands” an existing business. Regardless of methods used to create a “new” enterprise, the focus of the law is on the creation of at least 10 incremental employment opportunities. Investments creating a new enterprise but failing to create 10 new jobs will fail to qualify for EB-5 classification. In addition, “new commercial enterprise” does not include noncommercial activity, such as owning and operating a personal residence or nonprofit enterprise.
- To show that the petitioner has invested or is actively in the process investing, the petition must be accompanies by the evidence that the entire capital amount has been already invested and at risk in the commercial enterprise at the time of the petition.
The regulation defines “capital” as cash and cash equivalents, equipment, inventory, and other tangible property. Capital does not include loans by the petitioner or other parties. However, indebtedness secured by assets owned by the petitioner may be considered capital, provided the investor is personally and primarily liable for the debts and the assets of the enterprise upon which the petition is based are not used to secure any of the indebtedness.
- The petitioner must have legally acquired the funds invested, including being in legal immigration status if funds are eared or acquired in the U.S.
To establish that capital used in the new enterprise was acquired by legitimate means, the following types of documentation may be filed: (1) foreign business registration records; (2) personal and business tax returns, or other tax returns of any kind filed anywhere in the world within the previous five years; (3) documents identifying any other source of money; or (5) certified copies of all pending governmental civil or criminal actions and proceedings, or any private civil actions involving money judgments against the investor within the past 15 years.
- To show that his or her investment will create at least 10 full-time positions, the petition must be accompanied by one of the following.
- Photocopies of relevant tax records, Forms I-9, or similar documents for 10 qualifying employees; or
- A comprehensive business plan showing the need for at least 10 qualifying employees, and when the employees will be hired.
- The petitioner must be involved in the day-to-day managerial control of the enterprise.
This requirement may be evidenced by: (1) a comprehensive job description for the petitioner; (2) evidence that the petitioner is a corporate officer or on the board of directors; or (3) evidence that the petitioner is involved in direct management activities or policymaking activities of a general or limited partnership.
Removing the Conditions
It is important to remember that an immigrant investor’s permanent resident status is conditional. A petition to remove the conditions should be filed within the 90-day period immediately preceding the second anniversary of his or her admission to the U.S. as a conditional permanent resident. Proof of job creation is essential for this purpose. Failure to remove the conditions will result in automatic termination of the conditional resident’s status.
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