EB-5 Investment Visa

Silicon Valley Immigration Lawyer

In November 29, 1990, Congress created the EB-5 program as a form of business immigration. This program was intended to bring new investment capital into the United States and to create jobs for U.S. workers.

The EB-5 program has three requirements:

Immigrant's investor is required to invest capital in the U.S.;

Must invest to create a new commercial enterprise; and,

Must be a place that creates jobs for qualifying employees.

Investment Capital Requirements for the EB-5 Program

The EB-5 program states that the immigrant investor is required to invest their 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 defined as either:

• A rural area
• 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

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 their 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.

Defining a 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
• Corporations
• 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 the investor's investment will 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 their 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%.

Creation of Jobs From the Investment

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 residents, 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:

Evidence that the immigrant investor invested or was actively in the process of investing the required capital;

Evidence that the immigrant investor sustained the enterprise and investment; and,

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.