Powell Immigration Law PC | Business, Employment and Family Immigration Law | California

EB-5 Green Card through Investment/Job Creation

A basic overview of the visa is provided here. If you have further inquiries as to the application process or whether or not this is the correct route for your needs, please don't hesitate to contact us.

General

The EB-5 green card through investment was established to spur investments in businesses in addition to creating and preserving jobs within the United States. Through the EB-5 an applicant may become a lawful permanent resident (LPR) by establishing a new commercial enterprise and providing full-time employment to at least ten U.S. citizens, LPRs or other immigrants with employment authorizations.

Requirements

A foreign national may be deemed eligible for the EB-5 green card through his or her having invested or being in the process of investing the required amount of capital in a new U.S. commercial enterprise. The investment must have the effects of benefiting the U.S. economy and creating at least ten of full-time jobs for qualified U.S. individuals.

Investing In A New Commercial Enterprise

The applicant must have invested or currently be in the active process of investing at least $1 million in the new commercial enterprise.  However, if the investment is to be made in a targeted employment area, the investment requirement is lowered to being at least $500 thousand. Such targeted employment areas may be (1) an area where unemployment is at least 150% the national average rate or (2) a rural area defined as located outside any metropolitan statistical area (as designated by the Office of Management and Budget) or outer boundary of any city/town with a population of 20 thousand or more according to the most recent U.S. census.

Such invested capital may consist of cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the applicant, who must personally and primarily liable. Moreover, the foreign entrepreneur may not use any of the new commercial enterprise's assets to secure any of the indebtedness.

A commercial enterprise is any for-profit endeavor established for the ongoing conduct of lawful business including, but not limited to:

  • A sole proprietorship.
  • Partnership (limited or general).
  • Holding company.
  • Joint venture.
  • Corporation.
  • Business trust.
  • Another publicly or privately owned entity.

Not included under the definition of a commercial enterprise are such noncommercial activities as, for example, owning and operating a personal residence.

Furthermore, a new commercial enterprise is defined by United States Citizen and Immigration Services (USCIS) as one of the following:

  • One that has been established after Nov. 29, 1990.
  • One that was established on or before Nov. 29, 1990, and meets one of the additional criteria:
    • The business was purchased and subsequently restructured or reorganized in such a way that a new commercial enterprise thus resulted.
    • The enterprise was expanded through the investment resulting in at least a forty percent increase in the net worth or number of employees.

The engagement must Benefit The U.S. Economy And Create Jobs

The individual's activities in the new commercial enterprise must benefit the U.S. economy as well as:

  • Create full-time employment for no fewer than ten U.S. citizens, LPRs or other immigrants with work authorizations.
    • The immigrant investor's spouse and children do not qualify as created jobs. 
  • Maintain the number of existing employees at no less than that predating the investment for at least two years in such cases that the investment is being made in a “troubled business” (one that has existed for at least two years and has lost 20% of its net worth over the past one to two years).

Full-time employment is defined as a position requiring a minimum of thirty-five working hours per week. Jobs that are intermittent, temporary, seasonal or transient in nature do not qualify as permanent full-time jobs. Generally, employment expected to last at least two years is not considered to be within these categories. 

Furthermore, job-sharing arrangements may be utilized in which two or more qualifying employees may share a full-time position, thus counting it as a full-time employment provided that the weekly hour requirement is met. However, it must be a shared full-time position, this definition not including combinations of separate part-time positions even if doing so satisfies the hour requirement.

Investment through Regional Centers

While investments as applicable under the E-5 green card may be done through traditional direct investment, investments may also be made through regional centers. The regional center is often seen as the more agreeable option, for designation as such makes some USCIS EB-5 requirements more obtainable. Rather than being required to create ten full-time jobs directly, regional centers can satisfy the job creation requirements by creating ten full-time jobs through direct, indirect or induced means. This grants regional centers the benefit of economic multipliers in creating these jobs. Furthermore, regional centers can also make it easier to pool capital as a result of there being no limitation on the number of EB-5 applicants who can invest in an individual enterprise so long as each of the applicants meets the requirements for job creation. Therefore, if a regional center fits the needs of the organization in question, the option may be an attractive one.

No special licenses are required so virtually anyone may apply for regional center designation. A regional center may be any economic unit (public or private) involved with the promotion of economic growth, which may include increased export sales, improved regional productivity, job creation and/or increased domestic capital investment within the EB-5 program. Numerous business models are eligible to become EB-5 regional centers, such as governmental agencies, partnerships, corporations or any other existing U.S. commercial organization.


 

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