What is the EB-5 Program?

Overview

EB-5, or Employment Based Fifth Preference, is a way for a foreign investor to get a Green Card through investment. An investor must invest $1,000,000 ($500,000 in some areas) in a new commercial enterprise and create 10 new jobs.

Upon making the initial investment, the noncitizen investor can apply for a two year conditional Green Card. Shortly before the two year period is over, the noncitizen investor can apply for a permanent Green Card.

Warning! A lot of investors have made investments and gotten the two year Green Card only to have their permanent Green Card denied two years later. It is absolutely critical that anyone making an EB-5 investment works with a good Immigration Attorney to make sure that their investment meets the standards of the EB-5 program.

If you have any questions about the EB-5 program or other investment immigration options, contact us at support@tnvisaexpert.com.

Initial Investment – $1,000,000 vs. $500,000

In most parts of the United States, the initial investment must be at least $1,000,000 in order to qualify for the EB-5 program. However, certain areas of the United States have been identified as “Targeted Employment Areas” (TEAs). In these TEAs, an investor can qualify for an EB-5 visa with only a $500,000 initial investment.

There are two types of TEAs:

1. Areas of high unemployment
2. Rural areas

Areas of high unemployment are defined as any area where the unemployment rate is 150% of the national average. A rural area is either outside a major metropolitan area or outside any city or town with 20,000 people.

New Commercial Enterprise

The requirement that an EB-5 investor invest in a “new commercial enterprise” does not mean that he or she must start a new business. It just means that the business must have started after November 29, 1990 (the beginning of the EB-5 program). If the business has existed longer than that, the investment can still qualify if the investment expands employment by 40%, or if business is restructured so much that it becomes a new business.

Any type of business structure can be used as part of an EB-5 investment. It can be a corporation, LLC, partnership, sole proprietorship, or any other lawful business organization. The only thing to keep in mind is that the investor must have some control over the operation of the business, even if he or she is just a limited partner.

In any EB-5 investment, 10 new jobs must be created as a result of the investment. They must be full time, which means at least 35 hours per week. Two employees who work 35 hours a week combined can count as one employee. Seasonal work does not count; the work must be year round. The employees must be U.S. citizens, Green Card holders, or other immigrants with general work authorization (like asylees).

Investment Must be at Risk

A key requirement of the EB-5 investment is that the money invested must be at risk. The investor cannot simply loan money to the business, and any sign that there is some sort of money back guarantee in the investment will cause the Green Card petition to fail. The U.S. government is very strict in this requirement – in one case they rejected an EB-5 application because the investor worked for the company and received too high of a salary, saying that the salary was an attempt to refund the investor’s money.

An investor can, in some circumstances, borrow money from a third party and use that for the investment, so long as the investor is taking the risk of failure.

Sometimes, an investor’s business partners will offer to refund the invested money if the Conditional Green Card application is denied. That typically does not break this rule.

Direct Investment vs. Regional Center

An EB-5 investor has the choice of two general types of investments: Direct Investment and Regional Center.

Regional Center

A Regional Center is a business that has already been established in the United States and has been approved by the U.S. Government as eligible to receive EB-5 investments. For Regional Centers, the job creation requirement is relaxed a bit – the business does not need to hire 10 new employees, it only needs to prove that the investment will lead to the creation of 10 new jobs somewhere.

Many Regional Centers have organized themselves so that they do business in Targeted Employment Areas, so investors can qualify for an EB-5 with only $500,000.

Warning! While Regional Centers have been approved by the U.S. Government to receive EB-5 investments, this does not guarantee that an EB-5 investor will receive a Green Card. Sometimes a Regional Center’s circumstances will change, and sometimes the U.S. Government will discover something new about the Regional Center after approval. Make sure to work with your own attorney and do your own due diligence before investing in a Regional Center.

Direct Investment

A Direct Investment is not done through a Regional Center; it is done either alone by the EB-5 investor or with other investors and/or associates.

Comparison

Direct Investments offer an EB-5 investor more control over the creation and operation of the business, and more say over who they choose to work with and/or invest with. They tend to be higher risk, but yield higher profits. People with more of an entrepreneurial mindset who want to work directly to make their investment grow tend to prefer the Direct Investment model.

Regional Centers are more for investors who want a Green Card, but do not want to spend a lot of time focused on their investment. While there are a lot of Regional Centers to choose from, after choosing one the EB-5 investor has little control over how the investment is managed. They tend to have lower risk of losing money, but lower profit margins than Direct Investments.

EB-5 Procedure

Step 1: Choose an investment.

Step 2: Work with your attorney to determine if both you and the investment qualify for an EB-5 visa.

Step 3: Make your investment. Note that many Regional Centers and some Direct Investments will hold your money in escrow at this point, so that you can get your money back if the Green Card application is denied.

Step 4: File Form I-526.

Step 5a: If you are outside the United States, file for a Green Card at the U.S. Consulate.

Step 5b: If you are in the United States, file Form I-485 to apply for a Green Card.

Step 6: Receive 2-year, conditional Green Card. During this time, work with your attorney to make sure you are doing everything you need so that you are following the rules for the Green Card and the EB-5 program.

Step 7: 90 days before the conditional Green Card expires, file Form I-829. When this is approved, your Green Card is permanent.

If you have any questions about EB-5 visas, please contact us at support@tnvisaexpert.com.

Other Investment Visa Options

E-2 Visa – Treaty Investor

The E-2 visa is a temporary investment visa. Unlike the EB-5, there is no minimum investment or minimum job creation requirement. Instead, the applicant must show that the investment and job creation are appropriate for the type of business created.

The E-2 visa is only available to citizens of countries that have a certain treaty with the United States. Countries that qualify include Canada, South Korea, and Japan. Countries that do not qualify include China (mainland and Hong Kong), India, and Russia.

An E-2 visa is valid for two years, and there is no limit to the number of extensions.

H-1B/L-1 Visa

The H-1B and L-1 visa are typically for professional workers, but an Immigrant Investor who intends to work in and/or manage their new business may be able to sponsor his or herself under this visa category. The H-1B is for new hires, while the L-1 is for transfers, so if you go the L-1 route the business must already exist in another country for at least 1 year.

Working with an attorney in forming a business like this is absolutely necessary, as there are many extra requirements for these visas when you are sponsoring yourself.

If you have any questions about trying to get a visa to start up a business in the U.S., contact us at support@tnvisaexpert.com.