INVESTMENT-BASED IMMIGRATION

The Requirements for the EB-5 program

  • Investment of $1,800,000 million or more into a commercial enterprise
  • Investment of $900,000 or more if the area is deemed to be a rural area or with the high unemployment rate
  • Creation of no less than 10 new full-time permanent employment positions for U.S. residents within two years (the relatives of the investor are not counted towards “10 new jobs”)

What is a Commercial Enterprise?

The USCIS definition of a commercial enterprise – is any for-profit activity formed 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 or other entity, which may be publicly or privately owned

What Constitutes an Investment?

Capital can be composed of cash, equipment, inventory, other tangible property, cash equivalents, and the indebtedness secured by assets owned by the alien entrepreneur.  Assets of the new commercial enterprise are not used to secure any of the indebtedness.

How to Make an Investment?

There are two ways to invest in a commercial enterprise in the U.S. :

  1. Establish a new business or become a partner in the already-existing U.S. company;
  2. Invest through a regional center.

Regional Center is a commercial enterprise that was accredited by the U.S. government to accept foreign investments to provide a smooth path to the approval of the EB-5 petition. Presently there are thousands of regional centers across the U.S. in every imaginable industry.

What are the steps on the way to permanent residency?

  • 1 stage – preparation and filing of the EB-5 application and the acquisition of a conditional green card for the investor and his/her immediate family members.
  • 2 stage – If the investor is currently located outside the US, he has to undergo the consular processing.
  • 3 stage – removal of the conditions and applying for a permanent green card.

Within 90 days of the 2-year conditional green card’s expiration date, the investor must file a Petition to Remove the Conditions to request removal of conditional permanent residency.

Spouses and children of the EB-5 immigrant investor who are also conditional permanent residents may be included in the same application.

How an Immigration Attorney Can Assist in the Process?

The application process is very time and labor-consuming.

There is no one standard package that fits all. However, the services of the lawyer that are required in every case include:

  • Research and analysis of the business enterprise/investment vehicle;
  • Preparation & submission of the application;
  • Consulting the client during the whole process;
  • Review and analysis of the client’s documentation;
  • Preparation of additional documents that may be necessary for a successful EB-5 application;
  • Preparation of all necessary application materials, including forms and explanatory letters to the USCIS;
  • Drafting a lengthy petition document, which demonstrates the client’s eligibility for the EB-5 program with references to the legal statutes and regulations. Often it is in form of a legal memorandum;
  • Submission of a complete set of petition materials to the proper USCIS service center, and regularly communicating with the USCIS regarding the status of the client’s pending application;
  • Responding in writing to all USCIS’s inquiries and requests;
  • Assistance after the approval of the application to ensure the client and his family members receive green cards expeditiously.

(The cost of the legal work is determined based on the complexity of the services to be performed and the time required)

We discussed the requirements for the investment-based immigration program EB-5 in the previous article.

There are two main requirements:

  • Investment of $1 million or $500,000 if in a rural area or the one with a high unemployment rate, and 
  • Creation of 10 new full-time jobs for the U.S. residents

After the initial investment of money, the investor and his immediate family members (a spouse and children under 21 years old) receive temporary 2-year green cards.

The second requirement of the program – is the creation of 10 new jobs for US citizens and residents.

(These two years of US residency are given exactly for this purpose.)

When applying to remove conditions from the investor’s green card the evidence must be submitted showing how many people were employed during the period in question, the nature of their jobs, the pay rate, the hours worked (whether it is a full or part-time position) and other relevant information.

(Remember that the investor’s spouse and other close relatives will not be counted towards “10 new employment positions”.)

The evidence must be submitted that the investor’s funds are still in the business that was listed on the initial application and was not withdrawn or re-directed in a new unrelated enterprise.

An application to remove conditions from the investor’s and his family member’s green cards must be submitted 90 days before the expiration date of the conditional green cards. This application must be accompanied by a filing fee and all extensive documentation as discussed above.

An I-601 Waiver is a form used in certain situations by immigrants who are applying for a green card and are denied for the reasons discussed below. It can also be used when an immigrant wants to apply for an immigrant benefit, they may not be immediately qualified to receive it.

Misrepresentation

An immigrant will not be admitted into the United States if it is proven they intentionally lied or misrepresented themselves about a significant item when they tried to obtain an immigrant visa or admission in the United States.

Unlawful Presence

If a foreign national has unlawfully resided in the United States for more than 180 days and voluntarily left the country before removal proceedings were started against them – they won`t be able to come to the US for three year period. These individuals can apply for a waiver.

Basis For Waiver

By submitting an I-601 waiver application, an immigrant is trying to show they have a relative who is a legal citizen of the United States or a permanent resident and this resident will experience extreme difficulties if the immigrant is denied entry into the United States or removed from the country. Or the entire family is being forced to relocate overseas.

Extreme Hardship Proof

An immigrant can provide a statement about the difficult conditions in their home country and the struggles other relatives would experience if forced to leave the United States. Newspaper articles, official reports as well as letters from experts, and more can be submitted. They can also provide a statement describing the financial difficulties the relative would experience without them. This could be done with bank statements, wage statements, property deeds, and more.