EB - 5 Entrepreneurs or Investors
Congress created the EB-5 immigrant investor visa category in the Immigration Act of 1990 with the intention of attracting foreign capital to the United States and creating jobs for U.S. workers. The overall advantage of the EB-5 visa category is that it allows the beneficiary to engage in commercial enterprise anywhere in the United States. There are ten thousand visas made available in this category each year. Half of these visas are set aside for investors participating in regional pilot programs designed to attract targeted investments in economically underserved areas and areas experiencing an unemployment rate higher than the national average.
The EB visa is for immigrants seeking to enter the United States for the purpose of engaging in a "new commercial enterprise" that benefits the U.S. economy by bringing money into the U.S. and providing jobs for U.S. workers. If you possess a substantial amount of capital to invest in a U.S. business, the Investor Visa may be the best option to acquire permanent residence in the shortest period of time. The U.S. Investor Visa program requires an investment of either $500,000 or $1,000,000, and the creation of at least 10 jobs for U.S. workers over a two year period.
Requirements for the EB-5 visa
An applicant for the EB-5 visa must file form I-526, the Immigrant Petition by Alien Entrepreneur with the appropriate regional U.S. Citizenship and Naturalization Services Center including fees and evidence supporting the application.
There are three basic requirements as follows:
- The alien must establish a business or invest in an existing business that was restructured
- The alien must have invested $1,000,000 ($500,000 in some cases) in the business
- The business must create full-time employment for at least 10 U.S. workers
There are three ways of meeting the requirements for qualifying business:
- The creation of an original business
- The purchase of an existing business with simultaneous restructuring or reorganization
- Expansion of an existing business through the investment of the required amount and the creation of ten new jobs
Any for-profit entity formed may serve as a commercial enterprise, including sole proprietorships, partnerships, holding companies, joint ventures, corporations, and business trusts, among others. A holding company with its subsidiaries would also qualify if each subsidiary is engaged in the active conduct of business. Non-commercial activities, such as home ownership, do not qualify. Also, the alien must be actively involved in the business, and may not be a passive investor.
The investment may be in the form of cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien provided that he or she is personally liable and the assets of the new commercial enterprise are not used to secure any of the indebtedness. The required investment is $500,000 for a business established in a "targeted employment area." Targeted employment areas include rural areas with a population under 20,000 people that have an unemployment rate that is at least one and a half times the national average.
An EB-5 investor must be engaged in the management of the enterprise either through day to day managerial control or through policy formulation. A purely passive role is not permitted. An EB-5 applicant should submit documentation verifying such a role.
Application process
The EB-5 investor should provide evidence of creation of a new enterprise, or investment in an existing enterprise including, but not limited to, the following:
- Articles of incorporation, partnership agreements, organizational documents
- Evidence of lease agreements for the qualifying enterprise
- State business licenses
- Evidence that the required amount of capital has been transferred
- Evidence that investment has resulted in the substantial increase of net worth
- Documentation of sources of capital
- Documentation of intent to invest or actual commitment to invest capital
- Documentation of assets purchased or transferred from abroad for the qualifying enterprise
The investment must create at least ten full-time jobs for U.S. citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the U S. The ten positions must be full- time employment. This means employment of a minimum of thirty five hours per week. This includes conditional residents, temporary residents, asylees, and refugees, but does not include non-immigrants. The investor is permitted to employ this or her spouse and children in the enterprise, however the spouse may not be applied to the ten employee requirement.
An alternative to the EB-5 visa is the E-2 Treaty Trader Visa that which does not require as large an investment.
Our Firm is very experienced in filing investor petitions for both the non-immigrant E Investor/Treaty Traders Visa and the permanent resident EB Investor Visa. If you are seeking to immigrant to the U.S. through an investor visa, contact our office so that we may advise you on the most appropriate visa option for you.
Please contact us to start your immigration application now.