EB-5 Immigrant Investor

Visa Description

The fifth employment based visa preference category, created by Congress in 1990, is available to immigrants seeking to enter the United States in order to invest in a new commercial enterprise that will benefit the US economy and create at least 10 full-time jobs.  There are two ways to invest which you may use within the EB-5 category and they are:  creating a new commercial enterprise or investing in a troubled business.

Eligibility Criteria

New Business Enterprise

To qualify you must:

  1.  Invest or be in the process of investing at least $1,000,000.  If your investment is in a designated targeted employment area (discussed further below) then the minimum investment requirement is $500,000.
  2. Benefit the U.S. economy by providing goods or services to U.S. markets.
  3. Create full-time employment for at least 10 U.S. workers.  This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however it does not include you (the immigrant), or your spouse, sons or daughters).
  4. Be involved in the day-to-day management of the new business or directly manage it through formulating business policy – for example as a corporate officer or board member.

Targeted Employment Area is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.”  For further detail access section 203(b)(5)(B) of the Immigration Nationality Act (INA).

Troubled Business

To qualify you must:

  1. Invest in a business that has existed for at least two years.
  2. Invest in a business that has incurred a net loss, based on generally accepted accounting principles, for the 12 to 24 month period before you filed the Form I-526 Immigrant Petition by an Alien Entrepreneur.
  3. The loss for the 12 to 24 month period must be at least equal to 20 percent of the business’s net worth before the loss.
  4. Maintain the number of jobs at no less than the pre-investment level for a period of at least two years.
  5. Be involved in the day-to-day management of the troubled business or directly manage it through formulating business policy.  For example as a corporate officer or board member.
  6. The same investment requirements of the new commercial enterprise investment apply to a troubled business investment ($1,000,000 or $500,000 in a targeted employment area).

Regional Center Pilot Program

To qualify you must:

  1. Invest at least $1,000,000 or $500,000 in a regional center affiliated new commercial enterprise or a troubled business located within the area of the USCIS designated Regional Center.  Regional Centers are defined and discussed further below.
  2. Create at least 10 new full-time jobs either directly through the capital investment.

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The organizers of a regional center seeking the regional center designation from USCIS must submit a proposal showing:

  • How the regional center plans to focus on a geographical region within the U.S., and must explain how the regional center will achieve the required economic growth within this regional area
  • That the regional center’s business plan can be relied upon as a viable business model grounded in reasonable and credible estimates and assumptions for market conditions, project costs, and activity timelines
  • How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan
  • The amount and source of capital committed to the project and the promotional efforts made and planned for the business project.

A complete list of currently designated “Regional Centers” can be found at the link on the right hand side.

Application Process

Acquiring lawful permanent residence (“Green Card”) through the EB-5 category is a three step self-petitioning process.  First the successful applicant must obtain approval of his or her Form I-526 Petition for an Alien Entrepreneur.  Second, he or she must either file an I-485 application to adjust status to lawful permanent resident, or apply for an immigrant visa at a U.S. consulate or embassy outside of the United States.  The EB-5 applicant (and he or her derivative family members) are granted conditional permanent residence for a two year period upon the approval of the I-485 application or upon entry into the United States with an EB-5 immigrant visa.  Third, a a Form I-829 Petition by an Entrepreneur to Remove Conditions must be filed 90 days prior to the two year anniversary of the granting of the EB-5 applicant’s conditional Green Card.  If this petition is approved by CIS then the EB-5 applicant will be issued a new Green Card without any further conditions attached to it, and will be allowed to permanently live and work in the United States.

Form I-526 Petition for an Alien Entrepreneur

Type of Investment 

Supporting Documents (Evidence)*

New Commercial Enterprise Evidence that you have established a “for profit” new commercial enterprise.Evidence, if applicable, that your business has been established in a targeted employment area.Evidence that you have invested or are in the process of investing the amount required ($1,000,000 or $500,000).Evidence that the investment funds were obtained through lawful means.  Evidence that the capital used was legally acquired may be demonstrated by the following:

  • Foreign business registration records
  • Personal and business tax returns, or other tax returns of any kind filed anywhere in the world within the previous five years
  • Documents identifying any other source of money; or
  • Certified copies of all pending civil or criminal actions and proceedings, or any private civil actions involving money judgments against the investor with the past 15 years.

Evidence that the new commercial enterprise will create at least 10 full-time positions – not including yourself, your spouse, sons or daughters, or any temporary/nonimmigrant workers.  You will need to submit a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) employees will result, including approximate dates, within the next two-years, and when each employee will be hired.

Evidence that you will be actively involved in the management of the new commercial enterprise, (day-to-day or through policy).

Troubled Business The same evidence which is mentioned above for investors in a new commercial enterprise except instead of the evidence that the business will create at least 10 new jobs, you must submit evidence that:The number of existing jobs is being or will be maintained at no less than the pre-investment level for a period of at least two years.  Photocopies of tax records, Forms I-9, or other relevant documents for the qualifying employees and a comprehensive business plan shall be submitted in support of the petition.* Note:  To be approvable at least 10 jobs must be maintained.
Regional Center Program Evidence that you have invested in a designated Regional Center according to the approved regional center business plan.  A letter from legacy INS or USCIS should be attached with Form I-526 designating the Regional Center.  Your investment must be in a business enterprise within the geographical area specified in this letter.Evidence, if applicable, that your business has been established in a targeted employment area.Evidence that you have invested or are in the process of investing the amount required ($1,000,000 or $500,000).Evidence that the investment funds were obtained through lawful means.Evidence that your investment in the Regional Center will create at least 10 direct or indirect full-time.

 

Form I-829 Petition by Entrepreneur to Remove Conditions

You must submit Form I-829 within the 90-day period immediately before the second year anniversary of your admission to the U.S. as a conditional permanent resident.

 

Type of Investment

 

Supporting Documents (Evidence)*

New Commercial Enterprise Evidence that you in fact established a new commercial enterprise.  This evidence may include, but is not limited to, copies of the business’s organizational documents, and Federal tax returns.Evidence that you have invested the total amount of required funds.Evidence that you have sustained your investment in the new commercial enterprise throughout your two-year period of conditional permanent residence.  This evidence may include, but is not limited to, the following:

  • Business invoices and receipts
  • Bank statements
  • Contracts
  • Business licensees
  • Audited or reviewed financial statements
  • Complete copies of Federal or State income tax returns or quarterly tax statements.

Evidence of the number of full-time employees at the beginning of your business and at present.  Such evidence may include but is not limited to:

  • Business payroll records
  • Relevant tax documents
  • Employee tax form I-9’s.

* Note: Regional center affiliated cases must show that the capital investment was made in accordance with the regional center’s business plan in order to be credited with the creation of indirect jobs.

Troubled Business The same documentary requirements of an investor in a new business apply to an investor in an already existing troubled business, except that the investor must show that he or she has maintained (not created) at least 10 jobs.

Please contact the Law Office of Ruby L. Powers regarding any questions on this immigration process at (713) 589-2085 or Ruby@RubyPowersLaw.com.

USCIS Website – EB-5 Immigrant Investor

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