EB-5

EB-5 Immigrant Investor

The immigrant investor program was created in 1990 by congress to stimulate the United States economy by creating jobs and capital investment by investors of foreign nations. There are some EB-5 visas that are set aside for investors in Regional Centers designed by the USCIS based on proposals for promoting economic growth. The EB-5 Adjudications Policy Memorandum is a document that binds USCIS administration in who they can award EB-5 visas to. Investment in a new commercial enterprise is required for all EB-5 investors. These commercial enterprises must be:

  • 1) established after Nov. 29, 1990 or
  • 2) established on or before Nov. 29, 1990 and either:
    • 1) purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
    • 2) expanded through the investment so that a 40 percent increase in the net worth or number of employees occurs.

A commercial enterprise is any activity that is performed for profit and formed for the ongoing conduct of lawful business. Commercial enterprises can include: a sole proprietorship, partnership, holding company, joint venture, corporation, business trust or other entity (privately or publically owned). Owning and operating a personal residence or any other noncommercial activity is not included in the EB-5 visa category.

To be eligible for the EB-5 visa, the commercial enterprise must create or continue at a minimum ten full time jobs for qualifying United States workers within two years of the immigrant investor’s admission to the United States as a conditional permanent resident. It is also required that the job creation must create or continue direct or indirect jobs. Direct jobs include those which are identifiable positions for qualified employees located within the commercial enterprise that the EB-5 has made his or her investment. Indirect jobs are jobs that are created collaterally or result from the capital investment in a commercial enterprise that is associated with a regional center by an EB-5 investor. Preserving jobs is only applicable to an EB-5 investor if the business invested in is of the troubled variety. A troubled business is one which has existed for at least two years and shows a net loss during the one to two years before the priority date on the Immigrant investors Form I-526. The loss during these years is required to be at least twenty percent of the business’ net worth prior to the loss. A qualified employee is any person that is qualified to work in the United States. The worker may be a conditional resident, an asylee, a refugee, or a person that is residing in the United States under suspension of deportation. Those not included in the definition of a qualified employee are: immigrant investors and their direct family members, any foreign national in any nonimmigrant status or who is not authorized to work in the United States. Full-time employment is defined as a qualified worker who is working at minimum 35 hours per work week. In terms of the Investor Pilot Program, full time employment is the employment of a qualified employee in a job that has been created indirectly from investments associated with the Pilot Program. When two or more qualifying workers share a full-time position, or a job-sharing arrangement, they will count as full time employment if the hourly requirement is met. Combinations of part-time or full-time equivalents do not count under this category.

A capital investment means; cash, any equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur (if the alien entrepreneur is personally and primarily liable and the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness). All capital is required to be valued at fair market value in the United States and all assets that are acquired by unlawful means are not considered capital. In general, the minimum qualifying investment in the United States is $1 million. The minimum qualifying investment in either a high-unemployment rate area or rural area in the United States is $500,000.

For more information regarding EB-5 Visas, and the process of obtaining an EB-5, please contact the Law Office of Jeffery Bennett via phone: 816-759-2776 (English), 816-759-2777 (Spanish); or via email: jyb@jybennettlaw.com.