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EB-5 Visas and Foreign Investors

  • EB-5 Visas Can Help Foreign Investors Become Permanent U.S. Residents

    The EB-5 visa program is intended to encourage foreign investment in the U.S. in order to create new jobs or maintain jobs in troubled businesses. In exchange for this investment, a party and his or her immediate family may be able to become permanent, legal residents of the country. This status may be a stepping stone to U.S. citizenship. This hybrid of economic policy and immigration law requires applicants to pay attention to all the requirements to take advantage of the program.

    The U.S. Citizenship and Immigration Service (USCIS) administers the program. Foreigners willing and able to invest in U.S. businesses, their spouses, and unmarried children younger than 21 are eligible to apply for a green card (permanent residence) if they ...

    • Make the required investments in a commercial enterprise in the U.S., and
    • Plan to create or preserve ten permanent, full-time jobs for qualified U.S. workers.

    The EB-5 Program was started in 1990. It was seen as a way to grow the economy through investment by foreign nationals because the investment needed for the program must result in new jobs or maintain threatened jobs. Two years later, Congress created the Immigrant Investor Program (or the Regional Center Program or RCP) which sets aside EB-5 visas for foreigners investing in commercial enterprises connected to these regional centers which are approved by the USCIS. That approval is based on proposals for economic growth within specific areas. An investment need not be related to an RCP but it’s an option for those interested in the program.

    To qualify for the EB-5 program, foreign investors need to put money (or an equivalent) into a new commercial enterprise started after November 28, 1990, or in one begun before that date as long as ...

    • The investment went to purchasing an existing business,
    • Which was restructured or reorganized so it’s essentially a new commercial enterprise, or
    • It was able to grow due to the investment so that its net worth or number of employees increased at least 40%.

    To be considered a commercial enterprise under the program, it can be any for-profit activity created to conduct lawful business, including, but not limited to a ...

    • Sole proprietorship
    • Partnership (limited or general)
    • Holding company
    • Joint venture
    • Corporation
    • Business trust
    • Another publicly or privately owned entity.

    An EB-5 investor needs to invest the required amount of capital in a new commercial enterprise that will create or maintain permanent, full-time jobs (at least 35 hours/week) for at least ten qualif​ying​ employees.​ 

    • If the new commercial enterprise isn’t located within an RCP​,​ jobs ​must be created​ directly by the new commercial enterprise to count.​
    • If the new commercial enterprise is within an RCP, the f​ull-time jobs ​can be created directly or indirectly. ​​
    • Direct jobs are positions filled by employees of the new commercial enterprise.
    • Indirect jobs are those held outside the new commercial enterprise created due to the activities of the new commercial enterprise.
    • If the enterprise is a troubled business, the EB-5 investor may count jobs that were maintained by the investment which would have been eliminated otherwise. The number of these jobs must be maintained at the pre-investment level for at least two years.

    To qualify for the program, a troubled business ...

    • Must have been in existence for at least two years,
    • Suffered a net loss during the 12- or 24-month period before to the priority date on the investor’s Form I-526, and,
    • The loss must be at least 20% of the business’ net worth prior to the loss.

    To be a qualifying employee for the program, he or she must be a U.S. citizen, lawful permanent resident or an immigrant authorized to work in the U.S., such as a conditional resident, a temporary resident, an asylee, a refugee or someone living in the U.S. but under suspension of deportation. Not counted are the immigrant investor, his or her spouse, his or her children or any foreign national in a nonimmigrant status or a person unauthorized to work in the U.S.

    Positions that are intermittent, temporary, seasonal or transient aren’t considered permanent, full-time jobs and won’t count. If a job is expected to last at least two years, it would be considered permanent.

    The capital that needs to be invested could be cash or its equivalent in equipment, inventory or other tangible property. It can be indebtedness secured by assets owned by the investor as long as he or she is personally and primarily liable for the debt and the assets of the new commercial enterprise aren’t used as collateral to secure the debt.

    The minimum investment is $1 million, but if the enterprise is in a Targeted Employment Area (High Unemployment or Rural Area) it would be $500,000.

    • A targeted employment area is in a rural area or an area which has experienced unemployment of at least 150% of the national average.
    • A rural area can be any area not within a metropolitan statistical area (as designated by the Office of Management and Budget) or within the boundaries of a city or town with a population of 20,000 or more, based on the most recent census.

    The EB-5 applicant, if accepted into the program, is given conditional permanent residence. If the conditions aren’t met in two years (the enterprise needs to meet its employment goals), the green card application could be rejected. Because of the massive backlog of permanent residence applications, it may be several years before the investor may be able to apply for the green card. There are other options available which may be a better fit for the applicant.

    Those interested in an EB-5 visa need to invest a substantial amount of money, time and energy, so it would be wise for the person to look in detail at the program, consider whether potential investments appear legitimate and worthwhile and obtain legal representation to increase the chances of success. The EB-5 program can benefit foreign nationals, their immediate families and American workers, but only if the investment works out and all the legal requirements are met.