EB-5 Visa: Immigrant Investor Visa

1 .Overview	6. Conditional Permanent Residence
2. History	7. Application Process
3.Changes	8. Permanent Residence
4. Requirements	9. Frequently Asked Questions
5. Capital Investment Requirements	10. EB5 Services Provided by Our Law Office

Overview of the EB5 Visa: Employment Based Firth Preference Visa

The EB-5 visa was created by the Immigration Act of 1990, and allows investors to immigrate to the United States based on their investment in a U.S. business. This visa allows investors and their immediate family members to obtain green cards and remain in the United States indefinitely. To obtain an EB5 visa, the individual must invest $1,000,000 USD in a new enterprise, $500, 000 in an existing investment project with a an approved Regional Center, or $500, 000 in a USCIS designated "Targeted Unemployment Area," which is either a region of high unemployment or a rural area. The immigrant must show that he or she will either directly or indirectly be creating or preserving at least 10 jobs for U.S. workers, and these jobs do not include those for the investor or their immediate family. The investment can be made in a new or existing job generating commercial enterprise, an existing troubled business, or in a USCIS designated Regional Center, which is a third party investment corporation, either private or public, which acts to manage investment projects in the U.S. and creates the 10 required jobs for U.S. workers.

Upon approval of the EB5 visa, the investor and their immediate family will receive conditional permanent residence for two years. Within 90 days before the conditional permanent residence expires, the investor must show that the 10 U.S. jobs have been created, or maintained (in the case of investing in a troubled business), or that the 10 jobs will be created within a reasonable time frame.

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History:

In 1992 Congress created the Immigrant Investor Pilot Program, or Pilot Program which has been extended through September 30, 2012. The pilot program allows immigrants to invest in an economic unit called a “Regional Center.” The main advantage of investing in a regional center is that the regional center will ensure that you satisfy the job creation requirement, wherein the regional center will create the 10 “indirect” or “direct” jobs required to maintain the green card and become a permanent resident. A regional center is defined as a private or public economic entity whose main role is to promote and organize economic growth, job creation, and regional productivity through domestic capital investment. Those economic entities that seek to become a regional center must submit a comprehensive proposal to the USCIS.

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Changes to the EB5 Visa:

The use of the EB5 visa as an avenue to immigrate through the investment in the U.S. economy has been far less than originally anticipated by Congress. Moreover, in 2005, a survey conducted at a Government Accountability office reported that investors were unlikely to use the EB5 visa program because of lengthy adjudication times, a difficult and burdensome application process, and the suspension of processing on hundreds of visa cases. As anticipated, in 2011, the USCIS made a number of changes to the EB5 visa application process and program in general, increasing the number of applications filed from under 800 in 2007, to over 3,800 applications in fiscal year 2011.
The USCIS has made the following changes to the program:

Direct email contact between Regional Center Petitioners and the USCIS EB5 visa adjudication team.
Accelerated processing times and optional premium processing for certain applications and petitions, subject to additional fees.
The introduction of an expert decision board to assist in adjudication of applications on regional center petitions.
The use of economists and business analysts hired by the USCIS to assist the adjudication team, and guide the USCIS in its decision making.
The use of a consulting firm to guide the USCIS making the necessary changes in the program

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EB-5 Commercial Enterprises Include:

Corporation
Privately or publicly owned business trust
Joint venture
Holding company
Partnership
Sole proprietorship

Please note that commercial enterprises also include holding companies and its subsidiaries. To qualify, the subsidiaries must engage in for-profit activity.

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Requirements:

EB-5 Job Creation Requirements:

In order to qualify for the investor visa, you must show that your investment will create and preserve at least 10 full-time jobs for U.S. citizens within two years of your entry into the United States, or within a reasonable time after the two year period, depending on the particular investment.

You may show that your investment will create and preserve direct jobs, which are jobs that are located within the enterprise in which you invested; or
You may also show that your investment will create indirect jobs, which are those that come as a result of investing in the USCIS designated regional center. Those investing in a USCIS designated regional center are allowed to show that their investment will create 10 indirect jobs

Definition of a New Commercial Enterprise:

A new commercial enterprise is defined as an enterprise established after November 29, 1990. Those established on or before November 29, 1990 may qualify if they were:

1.Purchased and reorganized or restructured in a way where it functions as a new commercial enterprise, or
2.The corporation has expanded so that its net worth or total employees increases by 40 percent

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Capital Investment Requirements:

Capital refers to cash, inventory, equipment, cash equivalents and assets owned by the foreign investor. The investor must be primarily liable. All assets held by the foreign investor will be valued in U.S. dollars.

The minimum qualifying investment for EB-5 visa is generally $1 million USD
The minimum investment in high unemployment or rural areas (targeted employment areas) is $500,000 USD. To qualify as a high unemployment area, at the time of the investment in the corporation, the unemployment rate of the region must be 150% the national average. In order for a region to qualify as a rural area, it must meet the requirements set forth by the Office of Management and Budget, or it must be outside the boundary of a city or town with 20,000 or more residents.

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Conditional Permanent Residence:

If your EB-5 visa petition is approved, you will be granted conditional permanent residence for 2 years from the approval date. Within 90 days before your conditional permanent residence expires, you must be able to prove, with ample documentation, that your investment has created 10 full-time jobs (in cases where the investor has not invested in a regional center) or 10 full-time direct or indirect jobs (in cases where the investor has invested in a Regional Center). Depending on the nature of the enterprise, you may also show that 10 full-time direct or indirect jobs will be created and maintained within a reasonable time thereafter.

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Application Process:

1. File Form I-526 Petition by Alien Entrepreneur
2. If your Form I-526 is approved, you may file form I-485 Application to Register Permanent Residence or Adjust Status, in order to adjust your status to conditional permanent residence; or you may file DS-230 Application for Immigrant Visa and Alien Registration, in which you must file DS-230 with the U.S. Department of State in order to obtain an EB-5 visa for entry to the U.S.
3. 90 days before your conditional permanent resident status expires, you, or your attorney of record must file Form I-829 Petition by Entrepreneur to Remove Conditions.

I-526 Supporting Documentation on Investment:

The foreign investor must provide:

Evidence that they have invested in a new commercial enterprise in accordance with the USCIS’s rules mentioned above
Evidence that you have invested or are in the process of investing the total funds, $1 million USD, or $500, 000 USD in the case of low employment or rural areas
Evidence that the funds were legally obtained by providing the following:

Foreign business records, including business registration records
Business/corporate tax returns
Personal tax returns
Documentation of any other sources of income in any country you have lived in
records of any money judgments against the foreign investor, which is not limited to any civil or criminal actions or private civil actions in the previous 15 years

New Commercial Enterprise Supporting Documentation for I-526:

The foreign investor must provide documentation to verify that the for profit commercial enterprise is a new enterprise and or is considered a new enterprise according to the rules stated in the article above
If you have invested in a targeted employment area (rural area or area of high unemployment) you must provide evidence to prove that the corporation is located within a targeted area

Management of Enterprise Supporting Documentation for I-526:

The foreign investor must provide evidence that they are or will be involved in directly managing the business
The foreign investor should provide necessary documentation on their duties and responsibilities

Job Creation Supporting Documentation for I-526:

The foreign investor must provide all necessary documentation showing that the new commercial enterprise will create and preserve 10 full-time jobs. Please note that these jobs cannot include jobs for the investor’s immediate family members or for nonimmigrant workers.
A thorough and complete business plan must be submitted along with the I-526. This must include how the funds will be used, and show that the investment will result in at least 10 full-time jobs. The plan should include estimates on when and why the 10 employees will be hired, and what positions they will likely hold in the business

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Form I-829 Application Process:

I-829 Investment Supporting Documentation:

Documentation verifying that the enterprise is a new commercial enterprise. Documentation may include federal tax returns
Documentation verifying that you have invested the required funds or are in the process of investing the required funds
Evidence that you have managed and continued investing in the business throughout the two year period

Provide bank statements
Contracts
Business licenses
Business transactions
Financial statements
Reviewed financial statements
Federal or state income tax returns
Quarterly tax statements may be submitted in place of federal or state income tax returns

It is important in this critical process to provide as much documentation and evidence as possible, in order to substantiate your investment and continued management of the business

Job Creation Documentation: The foreign investor must provide documentation on how his or her investment has created and maintained 10 full-time jobs in the United States in the form of:

employee Forms I-9
tax documentation related to the creation of these jobs
business payroll records
In addition, other relevant information may be included in place of the above stated documentation

Upon approval of your Form I-829 petition, all conditions will be removed from your permanent residence and you will be allowed to stay in the United States permanently.

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EB-5 Investor Visa FAQ (Frequently Asked Questions):

Can I bring my husband or wife and children with me to the United States while on an EB-5 investor visa?

Yes, you may bring your spouse and dependent children under 21 years of age to the United States. They will receive conditional permanent residence after the Form I-526 is approved. With the approval of your I-829, your spouse and children will receive permanent residence status, and may attend school and be authorized to work.

What is the processing time for the EB5 conditional permanent residence?

According to numerous regional centers, the I-526, Immigrant Petition by Alien Entrepreneur processing time is around 8 months, however, such petitions may be approved in around 2 months, or more than 8 months in cases where an RFE, Request for Evidence, is required by the USCIS.

Should my immigration lawyer reside in the same state as the Regional Center?

The location of your immigration lawyer does not matter in EB5 immigration cases, and should not be a deciding factor, as U.S. immigration law is considered federal law.

Can I apply for an EB5 visa while on H-1B or other non immigrant visa status?

If you are already in the United States on another non-immigrant visa, you may apply for an EB5 visa. In such cases, it is advised that you maintain your non-immigrant visa status until your EB5 visa petition is approved, which could take approximately 2-12 months. Once you receive conditional permanent residence your non-immigrant visa will expire.

Should I choose an immigration attorney before looking at any regional centers?

There is no right answer to this question, however an immigration lawyer may assist you in finding the appropriate regional center.

Can I work for another U.S. employer after receiving conditional permanent residence?

Yes, after your I-526 is approved and you obtain conditional permanent residence, you may work for another U.S. employer, however, in order to remain in the United States permanently, you must show that your investment has created or preserved 10 U.S. jobs, and have your I-829 approved.

When can I get my investment back?

Each regional center has its own requirements, however, once your I-829 is approved, and you fulfill the job creation requirements, you may ask the regional center for your money.

Can investment funds come from unsecured loans?

No, according to the definition of capital for EB-5 visa purposes, unsecured loans cannot be used as investment funds. Any loan used for investment purposes must be secured by assets owned by the entrepreneur. The assets of the commercial enterprise in which an EB5 visa is based cannot be used to secure any of the loans.

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