EB-5 Investor Visa
What is the EB-5 Investor Visa?
The EB-5 visa was made available for U.S. employment creation by the Immigration Act of 1990. The petition, Form I-526, is filed by an immigration attorney on behalf of the immigrant entrepreneur for individual EB-5 applications as well as for EB-5 Regional Center Project filings.
The goal of the EB-5 program is to assist immigrants who seek to enter the U.S. to engage in a “commercial enterprise” that will benefit the U.S. economy and create at least 10 full-time jobs. The reward is that the immigrant will be eligible for a green card if they invest $1,000,000.00 in an appropriate business venture or $500,000 if the investment is made in a venture in a Targeted Employment Area (TEA).
Form I-526 requires compliance with project-specific and petitioner-specific aspects of an investment. Project-related requirements pertain to where the petitioner is investing in an enterprise associated with a designated regional center or a non-regional center project. The investor may encounter issues such as the scope of activities of the designated regional center, the need to show investment in a “new” commercial enterprise, the validity of a targeted employment area determination, satisfaction of the “at risk” requirement, and compliance with various aspects of the job creation mandate.
The petitioner-specific requirements include proving the lawful sources of the funds (invested by the petitioner), tracing the investor’s capital to the new commercial enterprise, ensuring compliance with the regulatory definition of “capital,” and demonstrating adequate involvement by the petitioner in the management of the new commercial enterprise.
A key issue with the EB-5 program, is the “source of funds”. These funds must be shown to be personal capital. Petitioners generally relay on one of two basic approaches to establish lawful source of invested capital. A petitioner may seek to rely on tax, banking and other financial records to document a certain level of income sufficient to lead to the accumulation of investment capital over time. Alternatively a petitioner may seek to demonstrate that EB-5 investment capital derives from one or more distinct transactions involving the sale or leveraging of valuable assets such as real property, securities, or an ownership interest in a closely held business.
Other issues that an entrepreneur may face include meeting the EB-5 “qualifying employee” requirement without committing an unfair immigration-related employment practice (e.g. discrimination in hiring) and tax planning and reporting (before and after immigrating to the U.S.).
At Legacy Immigration, we can help investors in the following scenarios:
- Capital was earned over many years but is unable to show the presence and accumulation in accounts.
- Can document verifiable income over a period of years at or near the investment amount, but fail to account for the fact that personal living expenses were also incurred and must also have been paid for
- Cannot produce tax returns because petitioner is exempt from taxation in client’s country of origin
- Loans of investment capital to the Petitioner
- Capital derived from a gift or inheritance
Our knowledgeable and experienced Attorneys think creatively to help our clients comply with SEC’s and USCIS’ guidelines. You can find more information from USCIS’ website: http://www.uscis.gov/eb-5
Q&A- The EB-5 Investor Visa Program
Q: What are the steps involved in the EB-5 visa process?
A: First, the investor must be affirmatively affiliated with an approved Regional Center. Second, the investor must file the I-526 Immigrant Petition by Alien Entrepreneur with evidence of sufficient lawful funds and either proof of a job already created or a plan to do so (the vast majority of EB-5 investors put forth a plan). Once the I-526 is approved, the alien entrepreneur will have to seek an actual immigrant visa through a Consulate abroad by filing DS-260 with the State Department or if lawfully present in the U.S., the alien can file Form I-485 with USCIS to obtain an adjustment of status without having to depart the U.S. When USCIS approves the I-485, the conditional status begins and accrues for 2 years after which the I-829, Petition by Entrepreneur to Remove Condition, must be filed. At this point the alien must submit corroborating evidence to substantiate the results of the investment efforts.
Q: What is a “commercial enterprise”?
A: Any for-profit activity formed for the ongoing conduct or lawful business including, but not limited to, a sole proprietorship, partnership, holding company, joint venture, corporation, business trust or other entity which may be publicly or privately owned. This 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.
Q: What type of capital can I use for the investment?
A: 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 is valued at fair market value in United States dollars (USD).
Q: Who is a “qualifying employee”?
A: A qualifying employee means a United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States, including but not limited to, a conditional resident, a temporary resident, an asylees, a refugee, or an alien remaining in the United States under suspension of deportation.
Q: Should I form a new Regional Center or work with an existing one?
A: USCIS is no longer premium processing I-924. Developer clients are looking at placing their EB-5 Project within the jurisdiction of an existing, pre-approved EB-5 Regional Center already certified by USCIS. It is necessary to look at the particular objectives and goals of the alien entrepreneur.
Q: What types of evidence are required for a successful petition?
A: Evidence that the petitioner has established a new business enterprise under the laws of the jurisdiction in the United States in which it is located, or, if they have made an investment in an existing business, evidence that the investment has caused a substantial (at least 40%) increase in the net worth of the business, the number of employees or both;
Evidence, if applicable, that your enterprise has been established in a TEA;
Evidence that you have invested or are actively in the process of investing the amount required for the area in which the business is located;
Evidence that capital is obtained through lawful means;
Evidence that the enterprise will create at least 1-10 full-time positions for U.S. citizens, permanent residents, or foreign nationals with lawful employment authorization; and
Evidence that you are or will be engaged in the management of the enterprise, either through the exercise of day-to-day managerial control or through policy formulation.
Q: My I-526 petition has been approved and I have received conditional permanent residence. What do I need to do to obtain permanent residence?
A: Obtaining conditional residence is only half the battle. Within 21 to 24 months following approval of conditional permanent residence status, the alien entrepreneur must file a conditional removal petition on Form I-829. If approved, the conditions on the alien entrepreneur’s permanent resident status are removed and the alien entrepreneur is able to remain in the U.S. permanently. If denied, the alien entrepreneur is placed into removal proceedings.
You need to provide evidence that a commercial enterprise was established by the alien entrepreneur, evidence that the alien entrepreneur invested or was actively in the process of investing the requisite capital, evidence that the alien entrepreneur has, in good faith, substantially met the capital investment requirement of the statue and continuously maintained his or her capital investment over the 2 years of conditional residence, and evidence that the alien entrepreneur created or can be expected to create within a reasonable time 10 full-time jobs for qualifying employees.
Q: My I-829 is denied. What can I do?
A: The alien entrepreneur has the opportunity to renew the I-829 petition before an immigration judge in removal proceedings.
Our attorneys at Legacy Immigration have a 100% approval rate in obtaining EB-5 visas for its alien entrepreneur clients. The highly skilled team knows how to prepare the I-526 with the I-829 in mind. Therefore, it is crucial for the alien entrepreneur to retain knowledgeable and experienced counsel who can plan for an I-829 approval, which starts before an investment is made and an I-526 is filed.
Please give us a call to discuss your case. In-person consultations are available Monday through Friday from 8:00 am to 8:00 pm and Saturdays from 8:00 am to 5:00 pm. Please call our office at 301.529.1912 or complete the form below. Please be sure to provide a timeline of events along with details of your entire immigration history./strong>