Investor Green Card : EB5

Employment Based Fifth Preference (EB-5) – Investor Visa; Employment Creation Visa

Who can qualify for an EB-5 Green Card?

Appropriate regulatory language provides that a petition for classification as an alien entrepreneur may only be filed by any alien on his or her own behalf.

Can multiple investors qualify for an EB-5 Investor Green Card?

It is possible for more then one person to invest in the same business and qualify for this program, however each qualifying alien must by himself or herself invest the required minimum amount, whether that is US$500,000 or US$1,000,000, depending on the circumstances. Further, as provided by 8 C.F.R. 204.6, the establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur even though there are several owners of the enterprise, including persons who are not seeking classification.

Note also that in most cases it is required to show that the investor is or will be engaged in management of the new commercial enterprise.

How much capital do I need to invest to be eligible for a Green Card as an Investor?

This question depends on several factors. The general rule is that the amount of capital necessary to make a qualifying investment in the United States is one million United States dollars ($1,000,000). There are exceptions to this rule however which bring down this investment figure to $500,000. The exceptions to this rule are the following:

Targeted Employment Areas - If one invests in a “targeted employment area” then the amount capital necessary to make a qualifying investment five hundred thousand United States dollars ($500,000). A “targeted employment area” is defined by appropriate regulatory language as an area, at the time of investment, that is “rural” or an area which has experienced unemployment of at least 150 per cent of the national average rate. To qualify as rural, the area must not be within either (a) a metropolitan statistical area or (b) any city or town having a population of 20,000 or more.

Immigrant Investor Regional Centers – Persons may also qualify to make investments into pre-approved investment centers. To qualify, the investor must show that his or her qualifying investment is within am approved regional center and that the investment is going to create jobs indirectly via revenues generated from increased exports resulting from the new commercial enterprise. Please contact our attorneys to get additional information about the available Immigration Investor Regional Centers and investment opportunities.

What type of business must I invest in and what needs to be proved to USCIS?

A “new commercial enterprise” must be created. As provided by the regulations, this can consist of:
 
(1) The creation of an original business;
(2) The purchase of an existing business and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results; or
(3) The expansion of an existing business through the investment of the required amount, so that a substantial change in the net worth or number of employees results from the investment of capital. A “substantial change” requires a 40 percent increase either in the net worth, or in the number of employees.

Does the business have to hire any U.S. employees in order to get a green card?

Yes. One of the requirements of the EB-5 investor program is that the new commercial enterprise will create not fewer than ten full-time positions for qualifying employees. These employees cannot be ones spouse, children or persons in the U.S. on non-immigration visas. Qualifying employees refers to United States citizens, lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation.

Can I show that the funds are available in a bank account or must they already be invested?

The regulations require that the petitioner already have invested, or be actively in the process of investing the required capital, accordingly the capital must be show to already be committed and be at-risk.
As provided by the appropriate regulations, capital includes cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.

Definitions:

These definitions, as per 8 C.F.R. §204.6,  provide useful information:

Capital - means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.

Commercial enterprise - means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned.

Employee - means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise.

Full-time employment - means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week.

Targeted employment area - means an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 per cent of the national average rate.

Rural area - means any area not within either a metropolitan statistical area or the outer boundary of any city or town having a population of 20,000 or more.

(a) In general, substantial change means a 40 percent increase in the net worth, or the number of employees (but not less than 20), so that the new net worth, or number of employees, amounts to at least 140 percent of the pre-expansion net worth or number of employees or both.
(b) If the new commercial enterprise is a holding company, the full requisite amount of capital must be made available to the businesses most closely responsible for creating the employment on which the petition is based.
(c) In order for a petitioner to be considered to have established a new commercial enterprise, he must have had a hand in its actual creation. For example, signing on as a new partner, subsequent to an organization's creation, neither makes such partner responsible for the original creation of the commercial enterprise nor does that automatically constitute substantial change in the enterprise, unless the other requirements are met as well. 9 FAM 42.32(e).