In 1990, the United States Congress created the investor visa category, known as the EB-5 program, which allows foreign nationals to obtain conditional permanent resident status if the immigrant invests in a for-profit employment-creation commercial enterprise. This is also known as the “EB-5” or “employment-creation” green card because the purpose of this visa is to create 10 new fulltime jobs in the U.S. per investor. The green card obtained by the immigrant investor is valid for two years and requires a second application to remove the condition through showing certain requirements have been met.
There are four general requirements to qualify for the EB-5 Visa Program. The first is the investor must place the requisite investment amount at risk in a commercial enterprise. The second requirement is that the commercial enterprise must employ no fewer than 10 new full-time U.S. workers within two years of obtaining conditional permanent residency. The third requirement is that the investor must document the source of the investment amount to show that it has not been obtained through unlawful means. And the fourth and final requirement is that the investor will be engaged in the management of the enterprise, either through day-to-day managerial control or through policy formation (e.g. member of the board of directors).
An EB-5 Visa Program investor must invest in a new commercial enterprise. Immigration regulations define a new enterprise as one established after November 29, 1990. An investor invests a new commercial enterprise by either creating an original business, purchase an existing business and reorganize it so that a new commercial enterprise results, or expand an existing business. The new commercial enterprise must directly create a minimum of 10 new full time positions for US workers.
The EB-5 Visa Program category requires the investor to place $1 million at risk. An exception is made for commercial enterprises located in either a high unemployment area or rural area. These are known as Targeted Employment Areas (TEAs) and are specifically defined by regulation. The investment capital required for a TEA is $500,000. High unemployment areas are State-designated areas with an unemployment rate at least 150% of the national average. Rural areas are those not within a metropolitan statistical area or the outer boundaries of a city or own with a population of 20,000 or more.
Qualifying capital investments may include cash, equipment, inventory and other tangible assets. They cannot include the proceeds of an unsecured loan. The purchase of stocks in a corporation is considered to be at risk. The capital requirement for an EB-5 investment cannot be parked idle in a bank account and must be used for the commercial purposes of the business.
The investor must show that the funds have been obtained through lawful sources. This requires detailed tracing of the investment capital to the investor. The USCIS expects transparency in transactions with clearly identifiable paper trails. The USCIS prefers to see an investor’s personal income tax returns to document the funds were lawfully obtained.
Congress created a subcategory of the EB-5 Visa Program known as the Regional Center Investment. Regional Centers have demonstrated to the USCIS that they will create directly or indirectly 10 or more jobs for US workers per investor. Regional Centers are not required to demonstrate direct job creation. An investor in a Regional Center must make the qualifying capital contribution. The requirement of creating 10 new jobs can be met by a showing of direct or indirect job creation.
Most Regional Centers are located in a TEA and therefore the required capitalization is $500,000. Regional Centers are engaged in a variety of businesses from land development, to dairy farming, to commercial banking, to real-estate development. These are for-profit entities, and as with any investment, carry their own degrees of risk. Prospectuses for the different projects should be studied with care by the investor to determine which ones meet the investor’s risk tolerance level. It is also highly advisable that financial analyst be retained to provide opinions on the financial viability, risks, marketing, safety, return, allocation of profit and loss, the industry overview and exit strategies.
The day-to-day operations of Regional Centers are typically handled by General Partners or a management team. Investors retain a role in policy formation and do not maintain a purely passive role in regards to the investment. The aspect of not being involved in the day-to-day management of the company is an attractive feature to investors, while others prefer a more hands-on approach.
The EB-5 Visa Program investment does not allow for a passive investment. Investors must be engaged in the management either through the exercise of day-to-day managerial control or through policy formulation. Members of the board of directors may be sufficient since these are positions involved in policy formation.
Permanent residence is granted on a conditional basis in recognition that many new businesses need time to gear up to the point where they have created 10 new positions. Investors are given two years within which to meet the required workforce. The investor must apply within two years of obtaining the conditional green card to lift the condition. This is done by demonstrating how the $1 million was placed at risk and providing proof that the requisite number of new workers have been hired. The two-year clock starts from the date the conditional green card has been granted.
The investor’s spouse and unmarried children under the age of 21 may also obtain conditional green cards with the investor. Their conditions are typically lifted at the same time the principal applies to lift his or her condition.
Successfully qualifying for the conditional green card is a two-step process. The first step requires an initial visa petition to be filed with the USCIS explaining the investment and why the investor qualifies. Once the petition is approved, the second step occurs. For those investors overseas, the approval is sent to the U.S. Consulate in the investor’s home country via the National Visa Center (NVC) where the investor and his family will be interviewed for their immigrant visas. The NVC coordinates with the Consulate in setting up an interview date. Once the Consulate issues the visa, the investor may travel to the U.S. as a Conditional Immigrant. The investor’s entrance into the U.S. as a conditional immigrant starts the two-year clock.
Investors already in the U.S. in a lawful status when the USCIS approves the petition can opt to complete processing in the U.S. by filing an adjustment of status application to conditional permanent resident. While the adjustment application is pending with the USCIS, the USCIS can issue the investor work authorization valid for one year and an Advance Parole travel document valid for one year. The Advance Parole document allows for easy travel granting multiple entries to the U.S. while the adjustment of status application is pending without the need to apply for a new visa. Once the adjustment of status is granted, the two-year clock begins to run.
Investors must apply to remove their conditions with the USCIS within a window of time beginning 1 year and 9 months after receiving conditional residence and no later than the second anniversary. Conditional residents who can document the requisite funds were place at risk and 10 new jobs were created for US workers should have their conditions removed and receive permanent resident status.