EB-5 Immigrant Investor
USCIS administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.
All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:
Established after Nov. 29, 1990, or
Established on or before Nov. 29, 1990, that is: 1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or 2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
- A sole proprietorship
- Partnership (whether limited or general)
- Holding company
- Joint venture
- Business trust or other entity, which may be publicly or privately owned
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
Note: This definition does not include noncommercial activity such as owning and operating a personal residence.
Regional Centers are pre-approved entities that basically set up everything for the immigrant investor who does not want to create their own business. Currently, there are over 50 Regional Centers. As a skilled Las Vegas Immigration Attorney, Robert West can assist you in finding the right Regional center for you. This type of EB-5 requires only a $900.000 investment in comparison to the traditional Eb-5 that requires an investment of $1.8 million do.
Job Creation Requirements
Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
Create or preserve either direct or indirect jobs:
Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.
Note: Investors may only be credited with preserving jobs in a troubled business.
A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.
A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation.
This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any non-immigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.
Full-time employment 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 Immigrant Investor Pilot Program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.
A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week.
The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.
Capital Investment Requirements
Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.
Note: Investment capital cannot be borrowed.
Required minimum investments are:
- General. The minimum qualifying investment in the United States is $1.8 million.
- Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $900,000.
- A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.
- A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.
What Is An Employment-Based Visa?
There are multiple types of visas that fall into one of two categories: immigrant and non-immigrant. Non-immigrant temporary visas allow a foreigner to live and work in the United States. An immigrant visa allows a foreigner to become a permanent resident of the United States. The most well-known employment-based non-immigrant visa is a specialty worker visa called the H1-B. For an H1-B visa, the worker must have a degree that matches the field of work. Read More
What Types Of Business Visas Allow People To Legally Work In The US?
The most common type of visa that allows people to legally work in the United States is the H1-B visa, which is for specialty occupations. For example, if a company wants to hire a foreign worker to fill a position in a field which matches the worker’s degree (e.g. engineering or accounting), then they might use the H1-B visa for this purpose. Every year, the number of H1-B applicants outnumbers the available visas. Read More
What Are Regional Centers In The EB-5 Program?
Before regional centers existed, a company would have to apply to USCIS to become a regional center. This process would take at least a year but allowed companies to run multiple projects per year. We’ve done projects at regional centers before, such as the Philadelphia Naval Yard Redevelopment project. My clients were able to get residency cards through that process. Read More
What Route Can Someone Take Aside From The EB-5 Program?
If an investor wants to come to the United States from a country with which the United States has a treaty, then they may be able to obtain an E2 visa. This type of visa can usually be obtained pretty quickly but does not allow the investor to obtain permanent residency. Most investors who seek the E2 visa invest $200,000 to $300,000 and hire four or five workers. Read More
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