Foreign entrepreneurs may be able to immigrate to the U.S. under the EB-5 visa program, which enables certain investors to be considered for green cards. This category was established by Congress, in 1990 as the “employment creation” category which allows people who invest into the United States economy to obtain permanent residence. Requiring an actual investment of $1 million ($500,000 in certain limited situations), some find this method of immigration the most convenient way to immigrate. This category is not for everyone, but if you qualify, it may be possible to invest in the United States, make money, and obtain permanent residence at the same time. A Sharma Law Firm, PLLC is dedicated to representing investors and their families in seeking EB-5 visas, and we can answer your questions and address your concerns regarding your particular immigration needs.
$1 MILLION INVESTMENT
The first requirement is an investment of at least $1 million in capital. Without this amount, it is not possible to fit within this category. (However, a $500,000 investment is acceptable for rural areas and areas of high unemployment. Geographic areas of high unemployment are determined by each state.)
Qualifying investment capital includes cash, equipment, inventory, and other tangible property. It also includes indebtedness secured by assets of the investor. However, the assets of the new commercial enterprise cannot be used as security.
The investor must actually have invested $1 million or be actively in the process of making such an investment. Future plans of investment or uncommitted funds in a bank will not count.
NEW COMMERCIAL ENTERPRISE
The law requires that a new commercial enterprise or business be established with the invested capital. Such a business can be established in four different ways:
Creating an original business – This means developing a business where none was there before.
Purchasing and restructuring an existing business – Changing a business from a sole proprietorship to a corporation may be enough to constitute restructuring, however, ten new jobs must also be created.
Expanding, and thereby substantially changing the net worth and number of employees in a business. The investment must provide at least a 40% addition in the net worth of the company or a 40% increase of employees.
Investing in a troubled business. A troubled business is a business that has lost 20% of its net worth in the last four months. The company must have at least ten employees, which the investor must maintain. There is no requirement to create ten new additional positions.
In addition to creating a new commercial enterprise, the investor must directly participate in the management of this enterprise. The investor, therefore, must be involved in the day-to-day operations of the company.
“Regional Centers”, approved by USCIS, offer another way to be an immigrant investor. A regional center promotes economic growth through capital investment, creator of new jobs, improve regional productivity centers including agricultural projects, hotels, dairy farms, assisted-living facilities, etc. They are located throughout the U.S. A favorable aspect of a regional center is that, even though the investor’s active involvement is limited, it allows him or her in free time to pursue other business endeavors or other interests. A complete list Regional Centers throughout the United States can be found at www.uscis.gov/eb-5centers.
EMPLOYMENT OF AT LEAST TEN FULL TIME U.S. EMPLOYEES
As important as the actual investment, is the requirement that the investment create full time employment for at least ten U.S. workers. Although the investors’ spouse and children may be employed, they cannot be counted toward the ten positions. Independent contractors do not count nor do part time jobs.
CONDITIONAL PERMANENT RESIDENCE
Upon establishing the necessary requirements, the investor is granted conditional permanent residence for two years. At the end of two years, a new set of papers must be filed with the C.I.S. in order to have the conditional residence changed to permanent residence. Final permanent residence will not be granted if:
The new business was established solely to evade immigration laws;
The investor failed to invest the requisite capital or sustain the investment for two years, or
The investor failed to meet the requirements of the other provisions of the employment creation statute.
If after reading this you have questions about immigrating to the United States through investment, or any other immigration matters, please CONTACT A Sharma Law Firm, PLLC and arrange an appointment with our Attorney at our New York office. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranties of the accuracy of information.
