EB-5 GREEN CARD

Investor green cards, also known as the EB-5 or 5th preference employment-based immigrant visas, are granted to individuals who invest at least $1 million in a new commercial enterprise that was created or restructured after November 19, 1990. This investment must be shown to have created 10 full-time jobs for U.S. workers. In some cases, if the business is located in a targeted employment area, only $500,000 of investment is needed, but the investor must still fulfill the 10 full-time job requirement. A targeted employment area or TEA is an area that has an unemployment rate of at least 150% the national average rate, or it must be a rural area designated by OMB.

Monetary investment alone is not enough for an EB-5. The investor must also prove that he or she obtained the funds through a lawful source. For some investors, this will be fairly easy, so long as they can show personal or business tax returns and bank statements dating back long enough to prove the funds came from a lawful source. For investors from countries where tax returns are not filed, or where financial institutions are not well-documented, this may pose a problem. Therefore, it is important to discuss your case, especially your ability to prove your source of funds with your immigration attorney.

The EB-5 can be approved through individual investment in a project, for example, the establishment of a restaurant or a hotel. However, the vast majority of EB-5 applications are approved through regional centers that pool together resources from multiple people, in which the investors play a back role in managing the business. We will explain this distinction in more detail below.

Business Management

An EB-5 investor must be engaged in the management of the enterprise either through day-to-day managerial control or through policy formulation. A purely passive role is not permitted in the EB-5 category, but the investor does not have to manage the operations on a daily basis either.

The EB-5 investor should be a corporate officer, member of a board of corporate officers, partner in a limited partnership, or someone who can exercise policy formulation by other means.The investor does not have to be in control of a majority of the organization. He or she just needs to have some control or ability to formulate policy and this can be achieved even through minority holdings.

Regional Centers

There are over 200 regional centers in the United States active today. A regional center is an organization or agency that seeks to promote economic growth in a particular geographical region through improved economic activity that has been approved by USCIS as investments. The advantage of using a regional center is that the investor does not have to actively be involved in the day-to-day management of the business and may take a more passive role. In addition, the investor maybe able to show creation of less than 10 full-time jobs, because in a regional center they can use reasonable economic methodologies to show indirect job creation. Each center will have its own business model.

As with any investment of magnitude, you must be cautious and consider every opportunity carefully. If a regional centers fails, investors may lose their money as well as their green cards. If you are not a savvy investor, you should hire a financial adviser to evaluate the financial stability of a regional center in which you’re interested.

Business Expansion

An investor may also be eligible for EB-5 classification by buying and expanding an existing business. However, in this instance, the investor must show that the expansion will result in a 140-percent increase in the existing number of jobs, or that they will retain all existing jobs in a troubled business that has lost 20% of its net worth over the past 12-24 months.

The EB-5 Process

The first step in the EB-5 process is to file the I-526 immigrant petition by alien entrepreneur to USCIS. You must file not only the form, but many supporting documents that prove your eligibility requirement for EB-5 classification, including:

• Establishing a new commercial enterprise;
• Investing the requisite capital amount;
• Proving that the investment comes from a lawful source of funds;
• Creating the requisite number of jobs; and
• The investor’s active participation in the business.

Once the I-526 petition is approved, the individual can pursue consular processing of immigrant visa for the investor and his family members, or if they are present through another valid status, they can file for adjustment of status.

Conditional Residence and Removal of Conditions

Once the EB-5 is approved, the investor and derivative family members will receive conditional permanent resident status. This means that they will get a green card, but it is restricted and will expire in two years from the date on which it is granted. With the condition, the USCIS can ensure that the immigrant investor will indeed follow through with his or her investment, and create those 10 full-time jobs within 2 years. If they fail to meet these requirements, their green card will be revoked. In order to remove the two-year condition, the investors must file a form I-829, Petition by Entrepreneur to Remove Conditions, within 90 days before the conditional card expires.

Filing for Your EB-5

The EB-5 process is very complex. Choose the best specialist immigration attorney for your case in order to minimize the risk of application denial and losing your investment. If you’re ready to start your EB-5 petition, or if you have additional questions about the process, call our office today. We will help you determine the best strategy for success and guide you through common issues that can lead to delays and denials.