The EB-5 Immigrant Investor Visa, also known as Employment Based Immigration: Fifth Preference Visa, was created by Congress in 1990 to stimulate the US economy by allowing foreign nationals to come to the US to invest in a commercial enterprise and create jobs for US workers. Currently 10,000 immigrant visas (green cards) are available annually for investors and their immediate families; however, this limit is yet to be met in a single year. There may however be some backlogs in the approval of immigrant visas for certain nationals, such as China and Vietnam and such information should be checked ahead of time with our law firm to assess the availability of such visa.
There are two general investment options that can be made by EB-5 applicants. They can choose to invest as individual investors or they can invest through an EB-5 Regional Center.
For detailed information on the EB5 Visa and to discuss your options, contact immigration attorneys Vazquez & Poudat, PLLC in Orlando, FL. Suzanne and Maud are Board Certified as experts in Immigration Law by the Florida Bar and help clients in Orlando, Florida and throughout the World with their immigration needs, including EB-5 Visa applications!
This option is best for those who want more control over their investment and who are more concerned about maximizing the return on their investment. However, there are certain requirements that must be met to qualify as an EB-5 investor.
All EB-5 Investors must invest in a commercial enterprise; which is a commercial enterprise established after Nov. 29, 1990; or a commercial enterprise established on or before Nov. 29, 1990, that is either
Commercial Enterprise means any for-profit activity formed for the ongoing conduct of lawful business, including, but not limited to:
This definition includes a Commercial Enterprise consisting of a Holding Company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. However, it does not include non-commercial activity such as owning and operating a personal residence.
As a requirement of the EB-5, the investor must be involved in either the day-to-day managerial control of the enterprise, or in management of the enterprise through policy formulation; i.e. corporate officer, board member, or a limited partner with rights and responsibilities of ULPA.
The required capital investment for an EB-5 is $1.8 million; however, if you are investing in a “targeted employment area”, then the required capital investment would be $900,000. In order to apply for an EB-5 visa, you must have either invested, or be in the process of investing the required capital.
The investor must contribute equity capital to the commercial enterprise and this must be an “at risk” investment, with the focus being on the actual and intended uses: that it will be used for job creation and profit-generating activity. Capital used for administrative expenses and to fund reserve accounts unrelated to job creation may not count. Capital may include cash & cash equivalents, equipment, inventory, and other tangible property. The investor’s contribution of cash proceeds from a loan may be considered capital, provided assets of the commercial enterprise are not used to secure repayment of the loan by the investor.
Please note: Loans of capital by investor to the enterprise do not count. The investor cannot receive any bond, note, or other debt arrangement from the enterprise in exchange for the contribution of capital.
As part of the EB-5 requirements, the investor must create at least 10 full-time jobs for qualifying US workers within two years of the immigrant investor’s admission into the United States as a Conditional Permanent Resident (or under certain circumstances, within a reasonable time after the two-year period).
A qualified employee can be a US citizen, Legal Permanent Resident, or an immigrant with authorization to work. However, any foreign national with a non-immigrant status or who is not authorized to work in the US is excluded. Also, the investor, his or her spouse, and children do not count towards the 10 employee minimum.
An “employee” is an individual who works for and is paid by the commercial enterprise. Independent contractors are not included. The jobs created must be full time, requiring a minimum of 35 working hours per week. Part-time jobs do not count. However, a job-sharing arrangement where two or more qualifying employees share a full-time position will count as full-time employment, provided the hourly requirement per week is met. The position must be permanent, full-time, and constant.
Please note: An investor may be credited with preserving jobs if they have invested in a troubled business. This means that the enterprise has been in existence for at least two years and has incurred a net loss during the 12 or 24 month period prior to the investor’s visa petition being filed. The loss for this period must be at least 20% of the troubled business’ net worth prior to the loss.
Regional Centers were established by Congress in 1992 through the introduction of the EB-5 Immigrant Investor Pilot Program. A Regional Center is defined as any private or public economic entity that is involved with the promotion of increased domestic capital, job creation, improved regional productivity, and increased economic growth. This option is best for EB-5 applicants who are more concerned with obtaining residency status in the US than directly managing an investment on their own. Currently, there are around 800 EB-5 Regional Centers in operation across the United States with more being approved regularly. The minimum required capital investment for an EB-5 applicant investing in a Regional Center is $900,000.
Regional Centers are subject to less stringent job creation requirements. If an EB-5 applicant is investing directly into a business as an individual, then that investment must lead to the creation of 10 full-time direct jobs in that company. However, Regional Centers can meet USCIS requirements by proving that 10 full-time direct, indirect, or induced jobs were created as a result of the capital invested. Indirect jobs may include positions that were created in the businesses that provide services or goods to the EB-5 project. Induced jobs are new jobs that are created within the community where the Regional Center is located as a result of income being spent by EB-5 project workers.
An EB5 investor will file an Immigrant Petition by Alien Entrepreneur with USCIS and will obtain a two year conditional residency upon approval of the Petition with USCIS. The investor can then apply for adjustment of status, if in the United States in legal status, or for an Immigrant visa if overseas. Prior to the expiration of the conditional residency, the foreign investor will have to file another petition with USCIS to remove the conditions on the temporary residence, in order to obtain lifetime residency which is a process to reconfirm that the required investment has been made and 10 jobs have been created (depending if the investment is made with a Regional Center).
If you are considering an EB-5 Immigrant Investor Visa contact us today. We have a professional team dedicated to helping individuals with all of their migration needs, including EB-5 visa applications. US Immigration Attorneys Suzanne Vazquez and Maud Poudat are certified as experts in Immigration Law by the Florida Bar and have helped many clients in the past. We can be reached during office hours at (407) 674-6968. If you have an emergency after office hours please call us at (407) 925-2554 and we will contact you shortly. You may also contact us by email at firstname.lastname@example.org.