Permanent Residence - EB5 Investor Visas

EB5 Investor Visas for Permanent Residence

The Attorneys at gousaimmigration.com focus and both Immigrant Visas (Green Cards)(IV) and Non-Immigrant Visas (NIV). With regard to Green Cards, EB5 is emphasized because Green Cards can actually be delivered without years of delay. Although processing an EB5 case can be done via an existing Regional Center, Standard EB5 cases are the preferred manner for most immigrants able to make the requisite investment. And, with the recent downturn in the economy, significant new opportunities have arisen, all as more fully described below, including the ability to purchase an existing business, for the requisite amount, maintain existing jobs, with no obligation to create new jobs, and obtain Green Cards for the investor's family without delay. This is both a new opportunity, and it is exciting as well.

EB 5 Immigrant Visa (IV): In General: History

In 1991, the Federal Government created the EB-5 Visa so as to encourage foreigners to investment in the U.S. The program required an investor invest US$1,000,000 into a business in the USA that would create 10 full time jobs paying at least the minimum wage. Once done, the investor and his or her family would be entitled permanent residence in the USA, meaning a "Green Card."

In 1993, the predecessor to the USCIA provided to potential immigrants a second option within the EB5 program, entitled, "Regional Center Pilot Program." In this new configuration of EB-5, the investor was envisioned to invest in an pre-existing fund, as approved by the U.S. government, not in his or her own business, and the fund was by regulation supposed to manage some sort of business, thereby indirectly creating the requisite 10 jobs, either in rural or high unemployment areas (150% or more of the U.S. average).

Due to abuse of this new variant of EB5, the U.S. government essentially suspended the EB-5 Regional Center Program between 1998 and 2004. The program has since been reorganized, there are in existence several Regional Centers, and others are possible. However, the program was and still is labeled "Pilot" because the Program is not permanent in U.S. immigration law, it must be re-authorized every five years by the U.S. government, and the current authorization is set to expire on March 06, 2009. It may not be so extended.

If the program per the above is extended, the Requirements for participation are as follows:

1. Investment of US$500,000 in a USCIS approved "Designated Regional Center"
2. The investor to have a minimal policy-making role (a limited partnership role)
3. The investment must directly or indirectly create the required 10 U.S. jobs.

EB5: Source of Funds: Regional Center or Standard EB5

In any EB5 case, documents sufficient to show that the capital invested was legally obtained are necessary. Gifts as a source of the capital are acceptable. Loans in some circumstances may too be acceptable.

The EB-5 Standard Program

The Standard EB5 program has never enjoyed great demand in that it requires an investment by the alien of between US$500,000.00 and US$1,000,000.00. With this investment, the investor is to create or to significantly restructure a U.S. business and, in the process, creates at least 10 U.S. jobs. To assure investor participation, and business success, in the normal course, the investor is to maintain some sort of day-to-day management of the business, and the 10 full-time jobs are to be created within a two years period.

1. The following requirements obtain for Standard EB5 processing:
• The alien investor must begin a business or invest in an existing business that was created or restructured after November 19, 1990
• The alien investor must be actively in the process of or has already invested US$500,000.00 to US$1 million
• Business must create 10 full-time jobs for US workers. (Please note important exceptions below)
2. Eligibility, per the above, is as follows:
• Establishment of a new commercial enterprise, as defined by law, by:
• The creation of an original business; or
• The acquisition of an existing business and simultaneously or subsequently restructuring and / or reorganizing said business in such a way that a new commercial enterprise results; or
• The expansion an existing business by 140 percent of the pre-investment number of jobs or net worth, or
• By retaining all existing jobs in a troubled business as purchased by the alien investor that has lost 20 percent of its net worth over the past 12 to 24 months; and
3. Investment, per the above, in a new commercial enterprise, as follows:
• US$1,000,000.00, or
• aUS$500,.00 if the investment is being done in a "targeted employment area," being an area that has at least 150 per cent of the national average rate of unemployment or a rural area as designated by OMB with less than a population of 20,000.

The section of Part 1, above, in Red, is so highlighted because this eligibility has become more available, and more possible to complete, with the current economic downturn, to the point that there are many excellent businesses, with good business and business models for sale, all down twenty percent or more in net worth, and investment in the same leads to permanent residency (Green Card) with no other or further mandatory job creation, which, obviously, is beneficial to the investor, giving him or her flexibility in the operation of the business, free from governmental mandates. In that no new jobs are required, the number of investors that can qualify for permanent residence visas (Green Cards) is determined only by the amount of the investment, and multiple investors can receive the visa benefits from the purchase of one business.

EB-5 Immigrant Visa: Investment and Procedures

It is important to note that the EB5 investment may be made in the form of cash, equipment, inventory, fixtures, other tangible property, cash equivalents and or indebtedness secured by assets owned by the alien, and or any combination thereof, provided that the alien investor is personally responsible for any debt, and, further, the assets of the new enterprise are not used as collateral. It should also be mentioned that the definition of capital specifically excludes capital acquired by unlawful means.

Alien investors may invest the required amount alone or in conjunction with other alien investors in order to create the qualifying business. Alien investors can likewise invest with other US citizens, or other individuals who are not seeking classification as an immigrant investor. In any such case, individuals seeking to be eligible for permanent residence as an alien investor must have himself or herself invested the required amount, and pooling of assets, is, thus, permitted, with the caveat that the job creation requirement obtains as to each unless the exception reflected above is applicable. Thus, it is possible for alien investors to pool their assets, each qualify for Green Cards, and take advantage of the exception set forth above. (More below)

EB-5 Visa Job Creation

As has already been mentioned, the EB-5 Visa investment requires the creation of 10 full-time jobs in the US for citizens, lawful permanent residents or other individuals lawfully authorized for employment in the United States. Full-time employees include workers on the job at least thirty-five hours per week, including conditional residents, temporary residents, asylum applicants authorized to work, people with refugee status, and recipients of grants of suspension of deportation, but it does not include non-immigrants. In calculating the number of jobs, the investor may not include spouses or children, but may include other family members who are employed by the business. The 10 positions must be full time, not part time.

There is one important exception to this hard and fast rule, as set forth above, and, as such, the exception is of great significance.

Conditional Permanent Residence in EB5

EB-5 Visa immigrant investors, their spouses and dependent children are subject to a conditional permanent residence period of two years. The alien investor must file a simple petition to remove the conditions during that 90-day period prior to the advent of the second anniversary of the alien investor's lawful admission to the USA as a permanent resident. The government will examine the business to make a determination as to whether or not the alien investor has indeed complied with all of the requirements of the law, from original application to date.

The form required to remove the condition essentially requires the following: Proof that a new commercial enterprise was established, including such documents as articles of incorporation, by laws, minutes, resolutions, business licenses, etc etc,

• Proof of the proper amount of capital was invested, meaning placed at risk, and put to work, including such things as bank statements, bank wires, letters of credit, bills of lading, evidence of equipment purchases for use in or with the business; evidence of tangible personal or real property transferred to the enterprise, and evidence of funds transferred to the business account, in consideration of proof of ownership,
• Proof that all funds so involved were lawfully gained,
• Proof the investment, created at least ten full-time jobs,
• Proof the investor engaged in the management of the business enterprise, for example, the alien investor was and or is the signatory for the business, signatory with banks, and the like, and or is an Officer and or Director of the business.

In presenting all of the aforesaid, the alien investor must show that he or she "sustained the actions required for removal of the conditions" during residence in the United States. An alien investor in EB5 will met the requirements of the law if he or she has "substantially met" the capital investment requirement and has continuously maintained this investment during the conditional residence period. Permanent Residence and Green Card status will then issue.

Copr. © 2000-2009 Garry Allen Hamud.