Understanding the EB-5 Immigrant Investor Visa Program

What Is An EB-5 Visa?

Established 1990 as the EB-5 Immigrant Investor Program by Congress as part of the Immigration Act of 1990, the EB-5 visa gives foreign investors a way to obtain permanent residence (green card) in the United States. Since its inception,EB-5 visa has become an important source of investment for development projects in the United States. In order for a foreign investor to be eligible for the EB-5 visa, that individual has to meet three basic requirements:

1. The foreign national must invest a minimum of $1 million in a New Commercial Enterprise in the United States (or invest a minimum of $500,000 if the investment is made in a Targeted Employment Area);
2. The foreign national must prove that the capital invested comes from a legal source (e.g., was not obtained through criminal activities) for the purposes of section 203(b)(5) of the Immigration Act of 1990;
3. The foreign national must show that the investment has created or preserved, or will create, a minimum of 10 new jobs for U.S. workers.

Apart from the principal foreign investor, his/her spouse and unmarried children under the age of 21 also qualify to receive permanent residence (green card).

Minimum Capital Investment Requirement:

Although the minimum capital investment amount required for the EB-5 visa is currently $1 million, if the investments are made in the “Targeted Employment Area” (“TEA”) that amount is $500,000.

The “Targeted Employment Area” (“TEA”) includes any of the following:

1. A targeted employment/ High Unemployment Area. This refers to an area that has an unemployment rate of a minimum of 150% of the national average rate.
2. Rural Area. This refers to an area located outside a metropolitan statistical area (MSA) and is outside a city or a town with a population of 20,000 or more.

Capital refers to cash, equipment, inventory, other tangible property, cash equivalents, and the indebtedness secured by assets owned by the foreign investor. The foreign investor has to be primarily and personally liable and that the assets of the new commercial enterprise on which the petition is made are not used to secure any of the indebtedness.

Investments Requirements:

Investments that qualify for EB-5 purposes are those made in for-profit “New Commercial Enterprise” (“NCE”). NCE simply refers to a:

• A commercial enterprise that was established after  Nov. 29, 1990, or
• A commercial enterprise that was established before or on  Nov. 29, 1990, that has been:
  1. Purchased and the existing company/business restricted in such a way that it results in an NCE, or
  2. Expanded through investments such that there has been a 40% increase in the number of employees or in net worth of the enterprise.

Also, you have to provide evidence, (if applicable), that the NCE has been established and does business predominantly in a targeted employment area (TEA).

Commercial enterprise refers to for-profit activates formed for the ongoing running of lawful business include, though not limited to:

• A corporation
• A holding company
• A joint venture
• A partnership (limited or general)
• A sole proprietorship
• A business trust or other entity, either publicly or privately owned
• Including any NCE consisting of a holding company or its wholly-owned subsidiaries, provided that this subsidiary engages in for-profit activities formed for the ongoing running of a lawful business.

Note: This definition does not include passive investments such as the acquisition of properties with no commercial or job-creating components such as a residential property.

Job Creation Requirements:

The EB-5 visa investor must provide proof that the investment in the new commercial enterprise led to the creation or preservation of a minimum of 10 full-time direct or indirect jobs for qualified employees within two years of the foreign investor’s admission to the U.S. as a Conditional Permanent Resident. If there is more than one EB-5 visa investor in a single NCE then the total amount of jobs created or preserved must give 10 full-time jobs to each EB-5 immigrant investor. A full time refers to a minimum of 35 work hours a week.

Note: A foreign investor can be credited with preserving a job in a troubled business.

A troubled business is one that was established two or more years ago and has incurred a net loss (of a minimum of 20% of the net worth of the NCE) during the 1-or 2-year period before the immigrant investor’s Form I-526 filing for removal of conditions.

Also, if the investment is associated with a regional centre, full-time jobs in the regional centre framework can include indirect jobs as determined by use of a reasonable economic methodology.

Regional Center-Based EB-5 Investment:

A designated regional centre is a private or public entity (for instance a sole proprietorship or a corporation) that has filed for and has obtained the designation from USCIS to take part in the Immigrant Investor Program also known as the regional centre program. These regional centres have the authority to sponsor job-creating capital investments projects within a geographic area and within specific industries. This enables the foreign investors to get credit for both jobs created directly within the NCE and indirectly (outside the NCE).

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The Processes Involved In Securing Permanent Residency through EB-5 Visa

There are basically three steps involved in acquiringanEB-5 visa

One –Filing a Form I-526, Immigrant Petition by Alien Entrepreneur with USCIS : 

First of all, the foreign investor must file Form I-526. Through documentation, will show that the foreign investor passes the criteria and requirements needed to obtain an EB-5 visa.

Two – Conditional Residence :

After the approval of Form I-526, the investor (and family members if they qualify) can file for a conditional permanent resident status valid for 2 years.

• If the foreign investor is already in the United States, he/she needs to file Form I-485, Application to Register Permanent Residence or Adjust Status, with the United States Citizenship and Immigration Services (USCIS). This will allow the investor to change status to a conditional permanent resident within the United States.
• If the foreign investor is outside the United States, the investor should file for a DS-230/DS-260, Application for Immigrant Visa and Alien Registration, with the U.S. Department of State. This will allow the investor to obtain an EB-5 visa for admission to the U.S.

Three – Removal of Conditions : 

• The foreign investor must file a Form I-829, Petition by Entrepreneur to Remove, within the last 90 days of the 2-year conditional permanent residence period
• The foreign investor needs to include only the conditional resident’s address on Form I-829.

Requirements for the Removal of Conditions

1. Foreign investors continued the investment in the New Commercial Enterprise during the 2-year period
2. The NCE created, preserved, or can be expected to create within a reasonable time 10 jobs.

If the United States Citizenship and Immigration Services (USCIS) approve the Petition by Entrepreneur to Remove Conditions, the conditions will be removed and the foreign investor and family members who qualify will be permitted to live and work in the U.S. permanently.

Conclusion :

The EB-5 visa is a great way for you and your family to immigrate to the U.S. if you are willing to invest in the American economy, which is a booming economy and one of the largest and most profitable in the world. Also, the privileges associated with the U.S. permanent residence (green card) are limitless including the ability to live and work in the United States, access to the best healthcare, send your children to the best schools and the opportunity to gain access to the best financial minds and to grow your enterprise in the United States.

Sources

1. 2016. About the EB-5 Visa. [ONLINE] Available at: https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-eb-5-visa. [Accessed 30 October 2016].
2. 2016. EB-5 Immigrant Investor Process. [ONLINE] Available at: https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-process. [Accessed 30 October 2016].
3. 2016. EB-5: Permanent Workers – Immigrant Investors. [ONLINE] Available at:https://my.uscis.gov/exploremyoptions/eb5_permanent_workers. [Accessed 30 October 2016].
4. 2016. EB-5 Immigrant Investor Program. [ONLINE] Available at:https://www.uscis.gov/eb-5.[Accessed 30 October 2016]