DESCRIPTION: The EB-5 visa for Immigrant Investors provides a method of obtaining a green card for foreign nationals who invest money in the United States. To obtain the visa, individuals must invest $1,000,000 (or at least $500,000 in a “Targeted Employment Area” – high unemployment or rural area), creating or preserving at least 10 jobs for U.S workers, excluding the investor(s) and their immediate family. The USCIS defines a “targeted employment area” (TEA) as an area which, at the time of investment, is a rural area (not within either a metropolitan statistical area (MSA)), OR an area within an MSA or the outer boundary of a city or town having a population of 20,000 or more which has experienced unemployment of at least 15% of the national average rate.
The foreign investor may consider several investment options for the EB-5 visa. The investor may create an entirely new commercial enterprise, may make investments directly in a job-generating commercial enterprise, or may invest funds into a “Regional Center”, which is a 3rd party-managed investment vehicle (private or public), which assumes the responsibility of creating the requisite number of jobs. A “Regional Center” is defined as any economic entity, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. Foreign investors may also invest in establishing an EB-5 Regional Center. If the foreign national investor’s EB-5 immigration petition (I-526) is approved, the investor and his or her dependents can apply adjustment of status (I-485) if they are physically present in the US or apply immigrant visa to enter the US. The approval of I-485 or landing the US with immigrant visa will grant them conditional permanent residence in the United States valid for two years. Within the 90 day period before the conditional permanent residence expires, the investor must submit evidence documenting that the full required investment has been made and that 10 jobs have been maintained, or 10 jobs have been created or will be created within a reasonable time period. Section 203(b)(5) of the Immigration and Nationality Act (INA) allocates 10,000 EB-5 immigrant visas per year. Of these 10,000 immigrant visas, 3,000 visas are reserved for aliens who invest in targeted employment areas (TEA) 3,000 visas are reserved for aliens who invest in commercial enterprises affiliated with Regional Centers.
REQUIREMENTS: The EB-5 immigration petition involves extensive documentation no matter the investor chooses to invest in a new business enterprise, a current commercial enterprise, or a regional center. If the investor chooses to invest in a new business enterprise, usually he or she must invest minimally $1 million. However, if the job creation entity is located in chooses to invest in “targeted employment areas”, the investment amount requires only $500,000. The investment must also create 10 full-time jobs in about 2.5-year timeframe and the investor must be involved in the everyday managing of the company. If the foreign investor chooses to invest in a commercial enterprise that has experienced downturn and net losses, he or she must invest at least $500,000 or $1 million. In addition, the foreigner must preserve at least 10 jobs and participate in managing the company on a daily and frequent basis. If the investor chooses to invest in a Regional Center project, he or she must invest at least $1 million, or $500,000 in an economically faltering business located within a USCIS designated Regional Center. The investor must also have created 10 new full-time jobs, either directly or indirectly.
The USCIS considers the following factors in certifying a regional center:
How the regional center plans on focusing on a geographical region within the United States, and how it will promote economic growth in that specific region;
How, in verifiable detail (using economic models in some instances), jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan;
The amount and source of capital committed to the regional center & the promotional efforts made and planned for the business project; AND
How the regional center will have a positive impact on the regional or national economy.
In addition to collecting all of the necessary evidentiary documents, the foreigner must get the requisite funds ready to be deposited into a designated escrow account. After placing the requisite funds in the designated escrow bank, the foreigner is ready to submit the I-526 petition to the USCIS. Upon retaining an experienced U.S. immigration attorney, the investor must provide documentation indicating that all funding comes from legitimate sources, as the USCIS will not consider assets obtained through criminal or fraudulent activities as legitimate sources of funds. In order to provide evidence of the lawfulness of his or her funds, an investor should provide financial documents, documentation of gifts and investments, business documents, real estate documents, loan documents, employment documents, and path of funds.
PROCESSING FOR EB-5:
After the foreign investor reviews and signs all documents, he or she should deposit a sum of money into an escrow account. Following this, the attorney files the investor’s I-526 Petition with the USCIS and waits approximately 6 months for the USCIS to adjudicate on the I-526 petition. If the USCIS approves the I-526 petition, the foreign investor may file an application for an immigration visa through adjustment of status (Form I-485) if he or she is physically present in the U.S. Alternatively, the foreign investor may apply immigrant visa through the consular processing in his or her home country using the Form DS-230 with the Dept. of State (DOS).
Upon approval of the Form I-485 or admission on an EB-5 immigrant visa, the alien is granted two-years of conditional permanent resident (CPR) status
A Form I-829 petition to remove the conditions on the LPR status must be filed in the three-month window prior to the end of the 2-year conditional period. If the alien has fulfilled the EB-5 requirements in accordance with the business plan in the approved Form I-526 petition, then the conditions on the alien’s LPR status will be removed
PROCESS FOR ESTABLISHING REGIONAL CENTERS: In order to establish a regional center, an investor should retain an experienced U.S. immigration attorney and supply all necessary evidence and documentation. These requirements include, but are not limited to, maps of the proposed regional center location, economic reports, business plans, financial projections, Subscription Agreement, evidence of promotional activities, escrow agreements, articles of incorporation, and other documentation of the business structure. The investor will need to file the Form I-924, Application for Regional Center, along with all the necessary evidentiary documents as well as a filing fee made payable to the U.S. Dept. of Homeland Security
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