Who can apply for EB-5?
What is the minimum amount of investment required?
For investments in areas other than “targeted employment areas,” the minimum amount of investment is $1 million. Investments in “targeted employment areas,” including most regional center projects, can qualify with a minimum of $500,000.
What is included in calculating the investment amount?
The entire amount of the investment need not be in cash. Assets transferred to the U.S. investment can be included at fair market value. Amounts borrowed by the investor can be included in the required minimum investment amount but only to the extent that the debt is secured by assets owned by the investor, and the investor is personally and primarily liable. The assets of the business in the United States in which the investment is made cannot be used to secure any of the indebtedness.
Are there any restrictions on the types of businesses in which the investment must be made?
The investment must be in a “new commercial enterprise” in the United States. “New” means that the investment must have been made after November 29, 1990. “Commercial” is to be distinguished from a passive, speculative investment, such as a purchase of real estate for use as a personal residence or for potential appreciation in value (as opposed to an active real estate development project).
The U.S. investment can be: (1) the creation of a new business; (2) the purchase of an existing business, which is reorganized to form a new enterprise; or (3) the expansion of an existing business.
Are there any specific rules regarding an investment in an existing business that enables the existing business to expand?
The investment must result in a 40% increase either in the net worth or the number of employees of the business. For example, if a business has a $5 million net worth and employs 50 people, the investment would qualify either if it increases net worth by $2 million or if it results in an expansion of 20 employees. It is not necessary to meet this test if the business was established after November 29, 1990.
Must the investor have any specific relationship with the U.S. business in which the investment is made?
The investor need not own any specific percentage of the business, be an officer of the business or be an employee of the business. However, the investor must be engaged in some way in the business, whether through actual day-to-day managerial control, by being a member of the board of directors, by being a limited partner, or the like.
Must the investment result in the creation of employment for U.S. workers?
The investment must create full-time employment for at least 10 U.S. citizens or immigrants (permanent resident aliens and other specified immigrant categories). The required 10 positions cannot include the investor or the investor’s spouse or children. The 10 jobs must be for employees of the enterprise in which the investment is made and cannot include independent contractors. However, for approved regional centers, the creation of employment can include indirect and induced employment.
May two or more investors qualify for immigration based upon a pooled investment in a single business?
There is no limit to the number of investors who may qualify for immigration based upon an investment in a single business. However, each investor must invest the required minimum amount, and the number of jobs created must be equal to ten times the number of qualifying foreign investors. For example, if five investors each invest $1 million in a business, they can each qualify for immigration if 50 jobs are created in the business.
Is the immigration status granted to the investor valid indefinitely?
The permanent resident status granted to the investor is actually a “conditional permanent resident status” that is valid for a period of up to two years. The investor and family members are required to remove the condition by filing an application during the 90 day period preceding the second anniversary of obtaining this status. The petition must demonstrate the establishment of the business, the investment of the requisite amount of capital and the creation of the required number of jobs.
Do all family members get conditional permanent residence status at the same time?
The investor, his or her spouse and any unmarried, under 21 year old children can obtain permanent residence at the same time and through a single investment of the mother or father.
Is the investor free to travel after obtaining conditional permanent resident status?
The investor is free to travel in and out of the United States subject to the rules generally applicable to permanent residents. Specifically, the investor must maintain a residence in the United States and must not be outside the United States for a continuous period of one year or more, unless she has obtained a re-entry permit.
What is the procedure for an investor to qualify as an immigrant based upon the investment?
Form I-526, “Immigrant Petition by Alien Entrepreneur,” must be filed with USCIS. The petition must be supported by a substantial amount of documentation proving that the investor meets all of the requirements. Once the petition is approved, the investor may either apply for an immigrant visa at a U.S. Consul or, if the investor is in the United States, apply for adjustment of status to permanent residence.
What is a regional center?
USCIS has approved a large number of regional centers. If an investor invests in one of these approved regional centers, the investor will not need to prove the creation of direct jobs for 10 U.S. workers. Rather, creation of indirect and induced employment based upon econometric projections is sufficient.
What happens if the necessary jobs are not created?
If the necessary jobs will not be created, the investor will not be able to obtain removal of conditions on permanent residence and will lose any legal status in the U.S. If there will be a change or delay in creating the necessary jobs, it may be necessary for the investor to file a new I-526 petition and obtain a new two year period of conditional permanent residence status. It may not be necessary to do this if the investor can prove at the time of filing of the I-829 petition that all of the necessary jobs will be created within a “reasonable time” (defined as one year).
When is it possible to apply for U.S. citizenship?
Four years and nine months after obtaining conditional permanent residence status if the investor meets physical presence and residence requirements. Applying for U.S. citizenship is optional.