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The United States Citizenship and Immigration Service (“USCIS”) offers several ways for non U.S. citizens to work legally in the U.S. One of those ways is the Employment Based Immigration: Fifth Preference (“EB-5”) program, also known as the Immigrant Investor Program. EB-5 was created in 1990 as a way to stimulate the U.S. economy by bringing foreign businesses to the U.S. and create jobs. The EB-5 Immigrant Investor Visa is a conditional residency visa that potentially allows for permanent residency status for the investor – and his or her spouse and unmarried children under 21.
In order to get an EB-5 Visa, eligible individuals must show that they have invested in or are actively in the process of investing in a new commercial enterprise. The investment must be at least $1,000,000 or at least $500,000 in a Targeted Employment Area and create or preserve a minimum of ten jobs for qualified U.S. workers. An alternative to the traditional EB-5 visa is to invest through a regional center, which has essentially the same requirements, but investors through a regional center have less strict job creation requirements.
Steps to Obtain an EB-5 Visa
The first step in obtaining an EB-5 visa is to file an Immigrant Petition as an Alien Entrepreneur. This petition must include supporting documentation clearly demonstrating the specifics of the new commercial enterprise, documentation on the management of the business, documentation showing the money has been invested, or will be invested in the business, and the number of jobs that will be created.
Upon approval of the EB-5 petition, an immigrant investor may apply to obtain status as a conditional resident for themselves and their qualifying family members for a two-year period.
Requirements for Commercial Enterprise
The commercial enterprise must be a for profit new commercial enterprise. To qualify as a new commercial enterprise the business must: either be established after November 29, 1990, or a business established before November 29, 1990, that the investor will restructure or reorganize in a way that a new commercial enterprise results, or expand the business so a forty percent increase in either the net worth or number of employees results.
In addition to the for profit new commercial enterprise requirement, the amount of money invested can either be one million ($1,000,000) or five hundred thousand dollars ($500,000). In order to take advantage of the lesser, five hundred thousand dollar requirement, the business must be in a “targeted employment area.” A “targeted employment area” is either a rural area, or an area with an unemployment rate of one hundred and fifty percent of the national average rate. However, the general minimum investment is one million dollars; and it is important to note that the investment cannot be borrowed funds.
The traditional job creation requirement for an EB-5 visa is ten (10) full time jobs for qualified U.S. workers. A qualified U.S. worker is either a U.S. citizen, permanent resident, or other immigrant authorized to work in the U.S. In addition, the ten jobs must be full time, meaning at least thirty five hours a week. The jobs must also be a direct result of the commercial enterprise. In order to take advantage of the indirect job creation requirements, the investor must be affiliated with a regional center.
EB-5 Regional Centers
A regional center is a public or private economic entity involved in the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The regional center must be approved by the USCIS, however, investing with a regional center does not guarantee the conditions will be removed from the investor’s visa after the two year period. The investor still must prove the investment was at risk, and sufficient jobs were created. Although the jobs created can be indirect, meaning created collaterally or as a result of the capital invested in a commercial enterprise affiliated with a regional center, the investor still has to show that the jobs were actually created.
Final Step in EB-5 Investor Visa Process
The last step in the EB-5 visa process is the petition to remove the entrepreneur conditions on the investor’s visa. This petition must be filed within the ninety (90) days immediately before the two year anniversary of the investor’s admittance into the U.S. as an immigrant investor, and the petition must show the investor met the program requirements.
Once the petition to remove the entrepreneur conditions on the person’s visa has been approved by the USCIS, the conditions are removed from the investor’s status and the investor and his or her immediate family members will be allowed to permanently live and work in the United States. Immediate family members include a person’s spouse and children under the age of twenty one.
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