The EB-5 Investor Visa

I feel like I have been getting a lot of questions from friends, family and prospective clients about so called "investor visas" lately. As I do not have the most experience with this particular aspect of immigration law, I thought it would be a great subject to research and write a blog post about.


The Immigrant Investor Program was established in 1990 to help stimulate the U.S. economy through capital investment and job creation. All EB-5 investors must invest in a new commercial enterprise established on or after November 29, 1990. Qualified investors must create or preserve at least ten (10) full-time jobs for U.S. workers within two (2) years of being admitted as a conditional permanent resident. The minimum qualifying capital investment in the majority of cases is $1 million.

Full-time Employment & Job Preservation

A common difficulty with the EB-5 program is job creation. If you are interested in participating in this program, the employment created by your investments must be full-time. According to the government, full-time requires a minimum of 35 employment hours per week. The position must also be permanent and constant. Therefore, if you are investing in a resort, theme park, or other seasonal enterprise, it will be important to verify that you can maintain at least ten (10) full-time employees year around in order to qualify for this program.

A qualified U.S. employee includes U.S. citizens, lawful permanent residents (LPRs) and other immigrants authorized to work in the United States. Non-immigrant workers such as H-1B, L and TN employees do not count, no matter how many hours they are working. The same goes for undocumented workers and yourself and your immediate relatives. Asylees, refugees, conditional permanent residents and individuals residing in the United States under a suspension of removal are qualified.


When it comes to preserving jobs, you will only be credited with doing so in a troubled business. Such a business must be an enterprise that has been around for at least two years and has incurred a net loss in the twelve (12) to twenty-four (24) month period prior to the priority date on your application. The loss must also be at least twenty percent of the enterprise’s net worth prior to incurring the loss.

Capital Investment

The capital you invest can include cash, equipment, inventory, cash equivalents and indebtedness secured by assets owned by you, provided you are personally and primarily liable for the indebtedness and the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. Capital is valued in U.S. dollars, not in any foreign currency or other units of financial measurement.

In certain cases, if you are investing in a targeted employment area, the minimum investment is reduced to $500,000.00 instead of $1 million. A targeted employment area is a rural area or an area experiencing unemployment of at least 150 percent of the national average. A rural area is an area outside of a metropolitan statistical area as designated by the Office of Management and Budget or an area outside the boundary of any city or town having a population of 20,000 or more according to the most recent U.S. census.


This may seem straightforward, but with urban sprawl being what it is in the United States, what may seem rural to you or your attorney may not always be viewed as such by the U.S. government.

Filing for EB-5 Investor Status

To begin, it is necessary to file Form I-526, Immigrant Petition by Alien Entrepreneur. The cost is $1,500.00. You will need to provide evidence that you (1) are investing in a new “for profit” enterprise; (2) are investing in a targeted employment area, if applicable; (3) are involved in the management of the new enterprise; (4) have invested, or are in the process of investing the required $1 million or $500,000.00; (5) obtained the funds by lawful means; (6) will create at least ten (10) full-time positions for qualified employees; and (7) will preserve at least ten (10) full-time U.S. employee positions, if applicable.

Once the I-526 is approved, you will need to file an I-485 Application to Register Permanent Residence or Adjust Status if in the United States, or a DS-230 Application for Immigrant Visa and Alien Registration with the Department of State if outside of the United States. Both also carry government costs.


You and your derivative family members will then be granted conditional permanent residency for a period of two years. Ninety (90) days prior to the expiration of the conditional permanent residency, you must file Form I-829 Petition by Entrepreneur to Remove Conditions, along with evidence that you (1) did invest in the enterprise; (2) have or are actively investing the total amount of required funds; (3) have sustained the investment in the new enterprise throughout the two years of conditional residence; (4) have created at least ten (10) full-time jobs for qualifying employees or they will be created within a reasonable time; and (5) at least ten (10) full-time jobs for qualifying employees have been preserved, if applicable. The cost of the I-829 is $3,750, plus a biometric fee of $85.00 per person (you and your dependents).

If the I-829 is approved, the conditions on permanent residence will be removed and you will become a full-fledged permanent resident of the United States. Your spouse and unmarried children under the age of twenty-one (21) may be admitted as derivative family members when the conditional residency is approved and their conditions will also be removed once the I-829 is approved.


Conclusion


If you have large sums of money you would like to invest in an enterprise within the United States, the EB-5 option may be the best for you. By participating in the program, you can possibly achieve lawful permanent residence status in the United States and eventually U.S. citizenship if that is your goal.

However, if the process seems clear, it is not always easy. Aside from the massive investment required, the government interprets the law and may not see things as clearly as you or your attorney. Requests for Evidence (RFEs) can be common and time consuming. In petitioning to remove the conditions on permanent residency, you may be asked to open your books and allow more governmental intrusion into your business than you may normally be comfortable with.

Furthermore, there is always the possibility that the business will fail. If it does prior to the end of the two year conditional residence period, there is the likelihood that you will not only lose your business and money, but also your green card.

Still, if the resources are there, and your ultimate goal is to reside in the United States, the EB-5 program could be of tremendous benefit to you, your family and the employees and communities your enterprise will touch.

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