U.S. residency based on employment creation

EB5 – stands for employment based 5th preference immigrant visa category. This visa category is allocated to foreign investors with the Congressional intention to stimulate U.S. economy. Program EB-5 represents a unique opportunity for foreign investors (“FN”) to U.S. permanent residency (“green cards”) with minimum requirements and restrictions in comparison to other types of visas.

Requirements:

1) U.S. law allows for conditional residency for persons who, after Nov. 29, 1990, invest $1,000,000 (or under certain circumstances $500,000) in a new commercial enterprise that employs 10 full-time U.S. citizens or authorized immigrant workers and engage in the business through day-to-day management or policy formation.

2) Person must invest in a new commercial enterprise:

• A person who invests in a new commercial enterprise can apply for EB5 even if he did not establish or formed the actual business.

3) Investments (Amount):

• FN invests or actively in the process of investing, capital of $1,000,000, or

• Invests or in process of investing, $500,000 if the investment in the targeted employment area (i.e., a rural area of less than 20,000 population or an area which has experienced high unemployment of at least 150% of the national average).

• Investment can be cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by entrepreneur, provided that the entrepreneur is personally liable and that assets of the new commercial enterprise are not used to secure any of the indebtedness. A loan to the commercial enterprise or any other debt arrangement between the entrepreneur and the new commercial enterprise does not constitute an investment.

4) Source of funds:

• Petitioner must show the source of funds and that they are legitimate.

5) Multiple Investors/Partnerships:

• Enterprise can have multiple investors including nonpetitioners. Each investor who wishes to qualify must independently meet the capital and employee requirements. All full-time employee positions, however, may be credited to the qualifying investors.

6) Employment Creation

• FN must create full-time positions for at least 10 qualifying U.S. citizen or immigrant workers (other than the applicant or his or her immediate family) within the 2-year conditional residency period.

• Independent contractors are not considered employees.

• Employment is defined in terms of the positions not the person requiring full-time (35 hours/week) employment. Thus, investors in such industries as the construction industry can qualify even where individual workers change so long as the position remains.

• Investment with Regional Center enables petitioner to bypass the employment creation requirement altogether.

7) Investor Must Petition for Removal of conditional residency (“CR”) status. FN must petition within 90 days before the 2nd anniversary of their CR status. This petition must contain facts and information demonstrating that:

• The conditional resident had invested the required capital,

• The CR sustained the enterprise and investment. (bank statements, invoices, contracts, tax returns, business licenses), and

• The CR “created or can be expected to create within a reasonable period of time 10 full-time jobs for qualifying employees.

8) Immigrant Investor Pilot Program- Regional Centers

• In 1992 U.S. Appropriations Act established a pilot program for immigrant investors that permitted investment through regional centers and relaxed the job creation requirements for employment creation visas.

• Regional Centers wishing to participate in this program had to demonstrate how they would promote growth through increased export sales, improve regional productivity, create new jobs or increase domestic capital investment.

• The FN investor must meet all criteria of employment-creation investors, except s/he is allowed to demonstrate that investment in the regional center will create jobs indirectly beyond the commercial enterprise. Thus, there is no need to directly hire any US workers.

Advantages:

• Approved investor, and also members of his immediate family (spouse and children under 21 who are not married) have the right to permanently reside in the U.S.

• The Investor and members of his/her family in 5 years, at will, can become U.S. citizens.

• The Investor and members of his/her family can live, work, study and operate their own business in any part of the U.S.

• There are no age, education, administrative skills, experience, achievements, or knowledge of languages requirements that are often needed for other types U.S. visas.

• The Investor and his/her family can receive reduced tuition rates at public U.S. colleges and universities, comparable to what U.S. citizens would pay.

For proper legal guidance throughout the EB-5 process, please contact our office for a free expert legal consultation. The unique nature of every EB-5 investor case and its factual and legal complexities requires an indebt legal analysis. Our extensive immigration law experience to properly assess and prepare your EB-5 paperwork, from A-Z.