EB-5 Visa Description
The EB-5 program has been created by Congress in 1990 and it is presently managed by the USCIS. The purpose of creating this program was to stimulate the U.S. economy by encouraging foreign investors and job creation.
Because of a pilot program created in 1992 in connection with the EB-5 Visa, and still active today, you can also be considered eligible for an EB-5 Visa if you make your investment through a regional center from the ones designated by the USCIS.
The EB-5 program is being managed based on the EB-5 Adjudications Policy Memorandum based on prior policy guidance which is the guiding document of the program applicable to, and binding on, all USCIS employees.
In order to be eligible for an EB-5 Visa you need to invest in a new commercial enterprise that has been established after Nov. 29, 1990, or an already existing enterprise, established before Nov. 29, 1990, that is either purchased and restructured or reorganized into a new commercial enterprise or expanded using your investment by at least a 40% increase evaluated in number of employees or net worth.
By commercial enterprise we understand any for-profit activity created as a legal business including corporations, joint ventures, business trusts, partnerships, holding companies or sole partnerships and any other entity privately or publicly owned.
The holding company included in this definition its wholly owned subsidiaries only if each of those is involved in an activity conducted as a lawful business and with the purpose of generating profit. Noncommercial activities are not included in this definition (e.g. owning and administrating a personal residence).
Job Creation Requirements
In order to be eligible for an EB-5 Visa as an entrepreneur investing in creating new jobs in U.S. you need to demonstrate that you will create or preserve at least 10 full-time jobs. The jobs must be for qualifying U.S. workers and should be active within two years from the moment you have been admitted in the U.S. as a Conditional Permanent Resident.
Another way you can be eligible as an entrepreneur investing in creating jobs is by creating or preserving direct or indirect jobs. There are considered direct jobs, jobs that you have created within the commercial enterprise in which you are investing your money. The term of indirect jobs means jobs that are the result of the capital you have invested into a business affiliated with a regional center or jobs created collaterally. You can use indirect jobs in your application only if you are affiliated with a regional center.
Note: If you wish to use the number of jobs preserved in your application, you can only do that if the business you are investing in is a troubled business and the jobs would be lost if it weren’t for your investment.
By definition a troubled business is an enterprise that:
- Has been created at least 2 years ago
- In the last 12 or 24 months prior to the date the immigrant investors files his Form I-526 has registered a net loss.
- The value of the loss has to be at least 20% of the enterprise net worth before registering the loss.
In order to determine the two years of existence of the business, successors in business of the enterprise need to have been in existence for the same period of time.
Any U.S. citizen, permanent resident or immigrant that has received the authorization to work in the U.S. is considered to be a qualified employee. He or she can also be an asylee or a refugee, a conditional resident or even someone under suspension of deportation. The notion of permanent resident as defined here does not include H-1B visa holder or any other foreign national with a nonimmigrant status, and neither the immigrant investor and relatives or nonimmigrants that have not received the authorization to work in the U.S.
A person is considered to be full-time employed if he or she has been employed in a new business, as a qualifying employee, for minimum 35 working hours a week. For the Immigrant Investor Pilot Program the notion of full-time employment also refers to positions created indirectly as a result of the investment made with the program.
The situation in which two or more qualifying employees share a full-time position is known as a job-sharing arrangement and can be considered as full-time employment if the hourly requirement is met.
Combinations of part-time positions or full-time equivalents are not included in this definition. Not even if the hourly requirement is met. The conditions that the position needs to fulfill are:
- To be a permanent position
- To be a full-time position
- To be constant
In order to qualify as a job-sharing arrangement the two employees need to be hired permanently. They also need to share the benefits associated to any full-time position and this includes unemployment premiums, workman’s compensation etc.
Capital Investment Requirements
By definition capital refers to cash, cash equivalents or tangible property such as equipment or inventory. It can also refer to indebtedness secured by assets if the entrepreneur is personally and primarily liable. Also, the assets presented as investment into the new commercial enterprise and included in the petition have to be free from other debts.
For an easy evaluation of your investment and your petition, all the capital you are investing should be valued at fair-market value in U.S. dollars.
Any assets acquired by criminal activities or other unlawful means can’t be considered capital for obtaining the EB-5 Visa.
Note: You can’t borrow the capital you present as investment.
The minimum value of your investment should be $1 million (General) or $500,000 if it is meant for a Targeted Employment Area (High Unemployment or Rural Area).
By targeted employment area we refer to a rural area or any area with unemployment problems meaning of at least 150% of the national average rate.
A rural area is considered by definition as an area situated outside a metropolitan statistical area. A rural area is also considered to be any area situated outside a town or city with the condition that the town or city has a population of 20,000 inhabitants or more.
EB-5 Immigrant Investor Process
To obtain your immigrant investor EB-5 Visa you need to first file a Petition by Alien Entrepreneur which is a Form I-526. After you receive approval on your Form I-526 you can choose to file Form I-485 named Application to Register Permanent Residence or Adjust Status used to request USCIS to adjust your status to a conditional permanent resident or, you can choose to file an Application for Immigrant Visa and Alien Registration (DS-230 or DS-260) with the U.S. Department of State requesting an EB-5 visa for admission to the U.S.
As an EB-5 investor, after your I-485 application receives approval or after you enter into the U.S. using an EB-5 immigrant visa, you and your family members will benefit from a conditional permanent residence valid for two years.
To remove conditions on your conditional permanent residence visa you need to file Form I-829, the Petition by Entrepreneur to Remove Conditions. The application needs to be made 90 days before the two-year period of the EB-5 conditional resident status (Green Card) expires. You also have the option to file a Form I-829 by listing only your address as a conditional resident.
If your petition is approved, you and your family will be granted the right to permanently live in the U.S. and the conditions will be removed from your EB-5 visa.