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What is the EB-5 Program?
USCIS administers the EB-5 program, created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot program enacted in 1992, and regularly reauthorized since then, investors may also qualify for EB-5 visas by investing through regional centers designated by USCIS based on proposals for promoting economic growth.
Are there any restrictions or limitations on the types of business or industry in which the investment can be made?
No, there are no limitations on the type of business or industry one can invest in. The investment must be in a “new commercial enterprise” in the United States. “New” means that the investment must have been made after November 29, 1990. “Commercial” is to be distinguished from a passive, speculative investment, such as a purchase of real estate for use as a personal residence or for potential appreciation in value (as opposed to an active real estate development project).
The U.S. investment can be:
(1) the creation of a new business;
(2) the purchase of an existing business, which is reorganized to form a new enterprise; or
(3) the expansion of an existing business, such that a 40% increase in the net worth or number of employees occur.
Does the investor need to work in the business directly and be involved in daily operations?
The investor does not need to work in the business directly and daily management and operations can be outsourced to a third party. However, the investor must be engaged in some way in the business, such as being involved in a decision-making capacity (partner, member, officer, or director, etc).
How long must the investor keep the business? When can it be sold or dissolved?
The business must be kept until the I-829 application is approved. Once USCIS approves the I-829 application the business may be sold or dissolved. And of course the investor also has the option of continuing the business if he/she desires.
What happens to an application if the business fails or goes bankrupt?
If the business fails, the investor has the option to re-capitalize and incur business losses and maintain the required number of jobs until his/her I-829 application. This way, his/her green card is secured even if the business fails.
How many jobs must be created?
The investment must create full-time employment for at least 10 qualified employees. The required 10 positions cannot include the investor or the investor’s spouse or children. The 10 jobs must be for employees of the enterprise in which the investment is made and cannot include independent contractors. However, for approved regional centers, the creation of employment can include indirect and induced employment.
When must the employment be created?
The EB-5 petition must document that the required 10 jobs will be created within a 2 1/2 year period immediately following the approval of the EB-5 petition.
What constitutes as a qualified employee?
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 nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.
What is considered full-time employment?
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.
How does one define Direct 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.
How does one define Indirect Jobs?
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.
What is a job-sharing arrangement?
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.
What is the minimum amount of investment required?
The minimum amount of investment is $1,000,000, unless in a targeted employment area (TEA) which qualify for a minimum of $500,000.
What is a targeted employment area?
A targeted employment area is a rural area or a geographical area that has experienced unemployment at a rate of at least 150% of the national average rate, at the time of investment. Individual states are authorized to designate geographical areas within the state that qualify as targeted employment areas.
What constitutes rural areas?
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 documentation must be presented to prove that the investor’s funds came from a lawful source?
Generally, the investor will present some combination of individual and/or business tax returns, employment records, documentation regarding sale of or dividends from a business, documentation regarding gifts or inheritance, and documentation regarding securities or real estate transactions.
Can the investor’s funds come from a gift or a loan?
Yes, however the person giving the gift must prove the lawful source of the gifted funds. Loans may come from an individual residing inside or outside the U.S. It is very common for parents to donate the funds as a gift to their son or daughter and have them become the EB-5 investor. The gifted or loaned funds can also come from a foreign or domestic corporation. The corporation must also prove lawful source of funds.
When does the investor get a conditional green card?
A conditional green card is granted once the I-526 application is approved by USCIS, and is valid for a period of up to two years. Currently USCIS takes approximately sixteen months to process I-526 applications.
Do all family members get conditional permanent residence status at the same time?
The investor, his or her spouse and any unmarried, under 21-year-old children can obtain permanent residency at the same time and through a single investment of the mother or father.
What documents must be filed with the I-526 petition?
The basic rule is that there must be documentation to establish each of the requirements set forth above. Specifically, documentation must prove the actual transfer or commitment of funds; the lawful source of the investor’s funds; the location of the investment in a targeted employment area (if the investment is less than $1,000,000); the investment in a new commercial enterprise; the involvement of the investor in the business; and the actual creation of 10 full-time positions or a comprehensive business plan showing the need for the 10 employees and the approximate dates when they will be hired. Specific additional documents will be required depending upon the details of the investor and the investment being made.
When does the investor get a permanent green card?
A permanent green card is issued by USCIS once the I-829 application is approved. The applicant must demonstrate that the invested capital at risk amount created the required number of jobs. The I-829 is filed two years after the I-526 is approved. Currently it takes USCIS approximately nineteen months to process I-829 applications.
When does the investor get an U.S. passport?
The investor will be applicable to apply for a U.S. citizenship (if desired) three years after receiving his/her permanent green card. The applicant will also be required to fulfill his residency requirements of 3 consecutive years prior to the citizenship application to be eligible for the passport.