EB-5 Investment Visa
Silicon Valley Immigration Lawyer
In November 29, 1990, Congress created the EB-5 program to bring new investment
capital into the United States and to create jobs for U.S. workers.
The EB-5 program has three requirements:
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Immigrant's investor is required to invest capital in the U.S.;
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Must invest to create a new commercial enterprise; and,
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Must be a place that creates jobs for qualifying employees.
Investment Capital
The EB-5 program states that the immigrant investor is required to invest
his or her capital into the United States. In addition, the investor must
document the path of the funds and ensure that the funds were obtained
in a legal manner. The investor must invest or actively be in the process
of investing $1,000,000. The EB-5 program carves out an exception for
the $1,000,000 capital requirement. An investor may invest or actively
be in the process of investing $500,000 if the investment is in a targeted
employment area. A targeted employment area is an area that is defined
as either a 1) rural area; or 2) an area which has experienced high unemployment
of at least 150% the national average. A rural area is defined as an area
that is not within a metropolitan statistical area or an area that is
not within an outer boundary of any city or town having a population of
20,000 or more.
The investment can be in the following forms: cash, cash equivalents, equipment,
inventory, other tangible property, etc. In addition, capital can include
a promissory note - an immigrant investor's promise to pay. This promissory
note must be secured by the immigrant investor's own assets and must
be specifically listed in the promissory note. All capital is valued at
fair market value in United States dollars.
Lastly, the immigrant investor must actually place his or her capital "at
risk." There must be a risk to lose the investment and a chance for
gaining profit. A promise to return any portion of the immigrant investor's
minimum capital negates the element of "at risk," and thus,
does not qualify as an investment under EB-5.
New Commercial Enterprise
A "New Commercial Enterprise" is defined as a for-profit activity
formed for the ongoing conduct of lawful business that was established
after November 29, 1990. A new commercial enterprise includes the following
types of businesses: partnership, holding companies, joint venture, corporation,
public/private owned entities.
The EB-5 program states that the investor may invest in an existing business,
regardless of when the business was created, provided that the investor's
investment will restructure or reorganize the business so that a new commercial
enterprise results. The restructure or reorganizing of the enterprise
requires substantial change to the existing company and cannot only be
a few cosmetic or superficial changes. In addition, the investor can invest
in an existing business if the investor can prove that his or her investment
will create a “substantial change” in the net worth or the
number of employees. In order for a change to be considered “substantial,”
the investment must increase the network or number of employees by 40%.
Creates Jobs
The EB-5 investment must result in the creation of jobs for qualifying
employees. The investment must create full time employment for at least
10 qualifying U.S. citizens, permanent resident, or other immigrants lawfully
authorized to be employed in the United States. The employees must be
receiving wages directly from the new commercial enterprise. Jobs that
are temporary, seasonal, contractor are not considered full time positions
for the purposes of an EB-5 visa.
Applying for an EB-5 Visa
In order to obtain an EB-5 visa, the applicant must file an Application
with USCIS, along with supporting evidence to prove the immigrant investor
has invested, or is actively in the process of investing, lawfully obtained
capital, in a new commercial enterprise in the United States that will
create at least 10 full time positions for employees. If the application
is approved, the immigrant will be given a conditional resident green
card for two years.
In order for the investor to remove the conditions of the green card, the
investor must provide the following evidence:
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Evidence that the immigrant investor invested or was actively in the process
of investing the required capital;
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Evidence that the immigrant investor sustained the enterprise and investment; and,
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Evidence that the immigrant investor created 10 full time jobs for qualifying
employees.
After the two years, the investor must file another Application with USCIS
to remove the conditions of the green card.
If you would like to apply for an EB-5 visa in San Jose,
call Verma Law Firm today.
