The EB-5 Visa Program

The EB-5 program allocates 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least ten (10) full-time jobs for U.S. workers.

The EB-5 visa category started in 1990. During the mid-1990s several companies competed for investment capital from foreign investors for the EB-5 program, but many of these companies didn't offer sound investment opportunities, didn't raise the full amount of the required capital investment or hire the required number of employees. As a result of these infractions, USCIS wanted to prevent continued abuse of the EB-5 visa program so they effectively placed the EB-5 visa program on hold from 1999 to 2002 while several precedent setting cases were being decided. In 2003 there began to be a resurgence of interest in the EB-5 visa category, and USCIS reports that by 2005 it approved a total of 179 EB-5 investor visa petitions, 2006 saw 336 EB-5 visa approvals, and 2007 had nearly 500 EB-5 visa approvals – and the number of EB-5 visa approvals has grown steadily since then. In 2012 alone, USCIS approved nearly 4,000 EB-5 visa petitions.

Participation in the EB-5 Immigrant Investor Visa programs gives you permanent resident status (a “Green Card”). Permanent residency requires no renewal or re-application. The E-1 Treaty Investor or E-2 Treaty Trader programs allow for non-immigrant status only, so when the qualifying business or investment ends so does the non-immigrant status that has been granted to the alien – thus the alien will have to leave the United States unless another visa category is granted. Unlike the E-1 and E-2, the L-1 alien can apply for classification as a Multinational Executive or Manager, and if such cases are approved the alien may apply for Permanent Resident status. Likewise, the L-1 is a non-immigrant classification. Other U.S. non-immigrant visas, such as E-1, E-2 and H category visas may never result in permanent residency, have time limits, and require additional filings with USCIS or the Department of State.

The EB-5 regulations require the investor’s involvement in management or policy making. The regulations deem a limited partner in a limited partnership, which is properly structured and that conforms to the Uniform Limited Partnership Act, as sufficiently engaged in the EB-5 enterprise.

On the USCIS website at the following page: EB-5 Immigrant Investor

The EB-5 investor visa is suitable for people from all walks of life: professionals, business people, persons wanting to facilitate their children's education and attend U.S. colleges and universities, persons just seeking a new or better life in the United States, and persons wanting to retire in the United States. The EB- 5 visa permits employment in the U.S. for the investor and their family. Quite simply, the EB-5 visa gives you the opportunity and flexibility to do what you want in the USA.

Yes.

Residents of only a few countries are excluded (e.g., North Korea and some others). In most cases, however, if the applicant is able to leave the excluded country and has the necessary capital to qualify under the program, legal counsel will be able to help the applicant qualify for visa approval. Consult your attorney to determine if you home country is precluded from this visa program.

The Immigrant Investment Visa Program takes advantage of the immigrant visa category for alien entrepreneurs known as the EB-5 Immigrant Investor Visa, created by the Immigration Act of 1990. In general terms, the EB-5 program requires an alien to "invest or be actively in the process of investing," either US$1,800,000 or US$900,000, which is "at risk" in a "new or existing business enterprise" that directly or indirectly results in the creation or preservation of ten full time (at least 35 hours per week) jobs for a two year period. A successful applicant can earn permanent residency for him or herself, a spouse and the children under age 21.

There are very few disqualifying or exclusionary events under the law. A criminal record involving crimes of moral turpitude is disqualifying, unless it can be proven that the crime was political in nature or occurred over 20 years prior to the application. A few major medical problems might also exclude an applicant, but for the most part this can be avoided if it can be proven that the applicant will be supported by others and therefore avoid being a recipient of government medical assistance. Applicants should seek advice of their legal counsel to determine what waivers may be available for eligibility.

Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. "Out-of-status" means the individual stay in the U.S. longer than their authorized period of stay. Your visa should be valid at the time of entry to the U.S. but the Form I-94 should be extended if the individuals need to stay more than the I-94 period. However, if they have filed any petitions or applications that lead to green cards, such as immigration petitions (through employment or family) or labor certifications during 245(i) benefit period by January 17, 1998 or April 30, 2001, they may file their applications to adjust status in the United States and pay a small penalty. If the out-of-status nationals do not have 245(i) cases, they must return to their country of origin and apply through the United States Embassy there.

An investor must apply to the USCIS for EB-5 visa qualification through the submission of a number of required documents, such as immigration forms, personal financial information, business plans, legal briefs on qualifications under the proposed application and other supporting evidence. The initial visa application is called the “I-526 Petition”. Also, funds must be placed in escrow prior to submitting an application or I-526 Petition with the USCIS.

Each applicant must prepare complete biographical information and the principal applicant must provide evidence to demonstrate how they lawfully obtained the investment funds. Business licenses, brochures about the business and other information about the applicant’s business are also beneficial. Lawful sources of funds include profits from the sales of a property, stocks or bonds, profits from business operations, business transactions, gifts, and inheritances. To prove the source of investment funds, USCIS generally requires five years of tax returns, five years of bank records, proof of ownership in any businesses, financial statements for each business and business licenses. The idea is to present a track record of an honest course of dealing. If your capital came from a specific transaction, such as sale of a house, inheritance or gift, you must prove that the transaction occurred by providing an official document, such as a closing statement or contract or other official documents.

When the immigrant investor’s initial I-526 visa application is submitted to USCIS it must include the following:

• Evidence to show that a new commercial enterprise has been established, such as articles of incorporation, business license, or evidence of the transfer of the required amount of capital when purchasing an existing business.
• Evidence that the proper amount of capital has been placed at risk, such as bank statements showing the deposit of funds into the business's account, evidence of equipment purchased for use in the business; evidence of property transferred to the business, and evidence of money transferred to the business in exchange for shares of stock. This stock cannot include terms requiring the business to redeem the stock at the holder's request.
• Evidence demonstrating that the capital invested was lawfully gained, such as foreign business registrations, tax returns, or certified copies of criminal or civil judgments, where appropriate.
• Evidence that the investment has created at least ten full-time jobs, such as tax records, Forms I-9, or if employees have not yet been hired, a detailed business plan demonstrating that the nature of the business will require the hiring of ten employees within two years.
• Evidence that the investor will be engaged in the management of the enterprise, such as evidence that the applicant is a corporate officer or member of the board of directors. If the business is a limited partnership, the applicant will be considered to have a management position only if the partnership agreement provides that the applicant will have the rights, powers and duties normally granted to limited partners under the Uniform Limited Partnership Act.

If the application is granted, the alien is given conditional permanent residence and after two years is eligible to file for removal of the conditions. The alien must also show that he or she "sustained the actions required for removal of the conditions" during his or her residence in the United States. An alien entrepreneur will have met this requirement if he or she has "substantially met" the capital investment requirement and has continuously maintained this investment during the conditional residence period. The entrepreneur's residence may be terminated at the end of the two-year period or earlier if it is found that the business was not established, or was established solely to evade immigration laws or that the requirements were otherwise violated. If, in the application to removed conditions (the I-829 petition), the alien demonstrates that the business was established, that the required amount of capital was invested, and that 10 full-time jobs either have been or are in the process of being created, the conditions will be removed and the alien granted full permanent residence and a permanent Green Card will be issued.