Investment Immigration (EB-5)

• Who May Qualify

• Filing Procedures

• Removal of the Condition

• Question & Answer

Who May Qualify:

To qualify for immigration investor status, the investor must meet each of the following requirements:

1. The investor must invest at least $1 million in the enterprise, or at least $500,000 if the investment is made in a ''targeted area.''
2. The investor must take a form of a contribution of capital that has been placed at risk for the purpose of generating a return on the capital;
3. The capital invested must have been obtained through lawful means;
4. The enterprise must benefit the US economy and must create full-time employment for not less than 10 US workers;
5. The investment must be made in a "new commercial enterprise" or a "troubled business;"
6. The investor must be engaged in the management of the enterprise, either though day-to-day managerial control or though policy formulation.

Filing Procedures

The investor or someone on his/her behalf can file the petition with the the Service Center that has jurisdiction over such petition; The application typically should include the following documentations:

1. Form I-526 for the petitioner and family members;
2. Organizational documents and agreements, such as articles of incorporation or partnership agreement;
3. Depending on the basis for qualifying, evidence that the required amount of capital has been invested and put at risk and, if required, that the amount has increased net worth or employment by the required percentage. Evidence may include stock purchase agreements, investment agreements, financial and payroll records, bank statements, evidence of goods transferred and/or purchased, proof of loans made, and the amounts and means of security.
4. If the amount of investment is premised on its creating jobs in a targeted area, evidence that the enterprise will be doing business mainly in (1) a rural area, that is, at a site not located within a standard metropolitan statistical area or within a town having a population as high as 20,000; or (2) a high-unemployment area, as prescribed at , with evidence of the unemployment there and nationally, both obtainable from the U.S. Department of Labor's Bureau of Labor Statistics
5. A detailed and comprehensive business plan that shows convincingly and realistically how the business will succeed and how the investment will create the jobs, particularly where the investor is still in the process of investing and the jobs have not yet been created, with such demographic charts or consulting reports as may be appropriate.
6. Evidence to show that jobs have been created, payroll and I-9 records.

Removal of the Condition

Within ninety (90) days before the end of the two-year period after the investor has obtained lawful permanent residence from the investor petition, he or she must file a petition on Form I-829 to remove the condition on his or her status. The petitioner may include a spouse and any children in the petition.

The petitioner need not be physically present in the United States to file.

A properly filed petition automatically extends the conditional residence indefinitely until the USCIS decides the petition.

Filing documentation may include:

1. Form I-829 at the service center where the original petition was filed.
2. Copies of the green cards.
3. Evidence that the investor invested or was actively in the process of investing the requisite amount and otherwise substantially and in good faith met the other requirements of the regulations over the two-year conditional period, including the creation of ten jobs. The documentation may include, but is not limited to, bank statements, invoices, payroll records, I-9 records, contracts, licenses, and tax returns.

Question/Answer

Q: Can I join others to make an EB-5 investment?

A: Yes. Though the BCIS appears to preclude corporate or other non-individual investors from this category, two or more individuals may join to make an EB-5 investment. A single new commercial enterprise may be used for investor/employment-creation classification by more than one investor, provided that: (1) each petitioning investor has invested or is actively in the process of investing the required amount; and (2) each investment results in the creation of at least 10 full-time positions for qualifying employees.

However,  the Service requires the petitioner to show that every investor in the partnership identify the source of their funds and prove that they were derived by lawful means. This evidentiary hurdle makes it almost impossible for the members in a partnership to qualify for EB-5 status.

Q: What is "Targeted Area" that requires only $500,000 investment?

A: A targeted area is either a rural area or an area whose unemployment rate is at least 150 percent of the national average.

Q: What does "Capital" mean?

A: Capital is generally defined as cash and cash equivalents, equipment, inventory, and other tangible property.

Capital does not include loans by the petitioner or other parties. Indebtedness secured by assets owned by the investor may be considered capital, provided the investor is personally and primarily liable for the debts and the assets of the enterprise upon which the petition is based are not used to secure any of the indebtedness.

A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the foreign entrepreneur and the new commercial enterprise does not constitute a contribution of capital and will not constitute an investment.

Q: How to prove the legitimacy of the capital invested?

A: The Service requires documentation to show that the capital invested is indeed the applicant's and was legally obtained and not ''drug money''.

One or more of the following types of documentation may be used to establish that capital used in the new enterprise was acquired by legitimate means:

• Foreign business registration records;
• Personal and business tax returns, or other tax returns of any kind filed anywhere in the world within the previous five years (required);
• Documents identifying any other source of money; or
• Certified copies of all pending governmental civil or criminal actions and proceedings, or any private civil actions involving money judgments against the investor within the past 15 years.
• Document to show, if applicable, that loans to a petitioner (for example, from a parent) have been amassed legally.

Q: What are the rules on the "Ten Full-time Positions" job creation requirement?

A: The jobs created must be full-time (at least 35 hours a week).  Part-time positions or independent contractors do not count. Job-sharing is permitted only for the full-time positions.

If the petitioner establishes an investment in a troubled business, the creation of 10 new jobs is not required, instead, the business is required to maintain the number of existing employees during the conditional status period.

As an alternative to evidence that the ten employees have already been hired, the investor can submit a ''comprehensive'' business plan showing that the nature and size of the enterprise will require at least ten employees within two years, and when they will be hired.

Q: What are the typical forms of the commercial enterprise?

A: The enterprise may be established through virtually any form of entity,  including special cases such as a limited partnership, reorganizing or restructuring an existing business, and investments in ''troubled'' businesses.

Q: What roles must the petitioner play in the commercial enterprise?

A: The petition must be engaged in a management role by day-to-day managerial control or as a policy maker such as a corporation officer or board member, or a limited partner.