EB-5 Visa Investment in USA

EB-5 Category for Permanent Resident

The Immigration Act of 1990 established a new investor category for obtaining permanent resident status. 10.000 immigrant visas are to be allocated annually to individuals in this category. In general, to qualify the foreign national investor must invest $1,000,000 in a commercial enterprise that will benefit the U.S. economy and create at least ten full-time employment positions for lawful U.S. workers (excluding the foreign national, his or her spouse, and sons and daughters). An investment of only $500,000 is required if the commercial enterprise is in a targeted employment area. The foreign national must be actively involved in the management of the business, either through the exercise of day-to-day managerial control, or through policy formulation. This chapter will discuss the specific requirements for qualifying for permanent resident status under this classification.

Investment Immigration Visa EB-5

1. Qualifying Criteria:

1. Applicants establish a new commercial enterprise by:

· creating an original business;

· purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or

· expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and

2. Applicants have invested -- or who are actively in the process of investing -- in a new commercial enterprise:

· at least $1,000,000, or

· at least $500,000 where the investment is being made in a "targeted employment area," which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area as designated by OMB; and

“Capital” is defined by the USCIS as cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by a foreign national, provided the foreign national personally and primarily liable. To constitute a bona fine investment, the foreign national must not contribute his or her capital in exchange for a note, bond, convertible debt, obligation or any other debt arrangement between the foreign national and the new commercial enterprise. In addition, the assets of the commercial enterprise upon which the petition is based many not to be used to secure any of the foreign national’s indebtedness. All capital is computed at fair market value in U.S. dollars. Any assets acquired directly or indirectly by unlawful means (such as though drug trafficking or other criminal activities) may not be used for the purposes of this section.

3. Whose engagement in a new commercial enterprise will benefit the United States economy and:

a. create full-time employment for not fewer than 10 qualified individuals; or

b. maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.

2. Documents:

Form I-526 and necessary documents. Applicant needs to file I 485 if he or she is in the U.S. or apply for immigration visa or the applicant is outside the U.S.

3. Note:

1. Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving a CIS-designated “Regional Center.”

2. The Immigrant Investor Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

3. For the Investor, these Regional Centers are attractive because they allow for a less restrictive job creation requirement. Instead of having to prove direct job creation, the investor may show indirect job creation through such methods as economic and statistic forecasting tools.

A "Regional Center:"

• Is an entity, organization or agency that has been approved as such by the Service;
• Focuses on a specific geographic area within the United States; and ,
• Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.

· Please note that this pilot program expires in November 2008 unless reinstated.

"Alien investors" must:

• Demonstrate that a "qualified investment" is being made in a new commercial enterprise located within an approved Regional Center; and,
• Show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

4. Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children.

5. Eligible investors must file a CIS Form I-829, Petition by Entrepreneur to Remove Conditions. Form I-829 must be filed within 90 days before the second anniversary of an Alien Investor’s admission to the United States as a conditional resident.