Investors Visa: What is an EB-5 visa?

In the early 1990’s, Congress created the Immigrant Investor Program, otherwise known as “EB-5.” The EB-5 is a type of immigrant visa that gives foreign nationals a method for obtaining a green card through investing money in the United States. Born out of the Immigration Act of 1990, the EB-5 visa was intended to stimulate the U.S. economy by promoting job creation as well as capital investment.

Bill Wright, a spokesman for the U.S. Citizenship and Immigration Services (USCIS), reiterated the goals of the program by saying, “Our goal is certainly job creation, and that’s what this program is all about. At the same time, it’s allowing somebody from a foreign country to come and invest in our nation.” *James O’Toole, Citizens for sale: Foreign investors flock to the U.S., June 11, 2012 http://money.cnn.com/2012/06/11/news/economy/citizenship-foreign-investment/index.htm

Every year there are 10,000 visas available in the EB-5 category for foreign investors who invest capital in qualifying U.S. businesses. The following is some basic information about the EB-5 process. If you are considering applying for an EB-5 visa it will be important for you to talk with an experienced immigration attorney who can explain more about what is needed for approval and guide you through the process.

Requirements

The USCIS has developed certain requirements that foreign investors must meet in order to be granted an EB-5 visa. In order to be granted an EB-5 visa, a foreign investor must invest a certain amount of capital, meet certain job creation requirements, and be investing in a business that meets the qualification requirements of the EB-5 program.

Required Capital Investment

In general, in order to qualify for an EB-5 visa, a foreign investor must make a capital investment of $1 million or more. This number drops to $500,000 or more if the capital investment is being made towards a business that is located in a Targeted Employment Area (TEA). TEAs are either areas that have a high unemployment rate (at least 150% of the national average) or are rural areas (defined as being any area outside the geographical area of any town or city that has a population of 20,000 or more).

Job Creation Requirements

Not only must a foreign investor meet the capital investment amount requirements, they also must demonstrate that their capital investment will either create or preserve a minimum of ten jobs for qualifying U.S. workers within the U.S. borders.This does not include jobs held by nonimmigrant workers or for family members of the EB-5 investor.

Investing in a Qualified Business

Besides investing in a new commercial enterprise, foreign investors’ other option is to invest in EB-5 Regional Centers.

A new commercial entity is a for-profit business that can be a corporation, partnership, sole proprietorship, or other type of business structure. In order to be a new commercial enterprise, the business must have been established after Nov. 29, 1990. If the business was established on or before Nov. 29, 1990, the business can still be determined to be a new commercial enterprise if the business has either been restructured in a way that would make it a new commercial enterprise or the business has expanded as a result of the foreign investor’s investment, causing a 40% increase in the net worth or in the number of employees in the business.

Besides investing in a new commercial enterprise, foreign investors’ other option is to invest in EB-5 Regional Centers. Regional Centers have been approved by the USCIS to operate EB-5 investment projects. These include any economic entity that is involved with the promotion of economic growth, job creation, and increased capital investment. Investing in a EB5 Regional Center is attractive to EB-5 applicants who are focused more on getting residency status rather than managing their own investment. For this reason, most EB-5 applicants invest in Regional Centers rather than new commercial enterprises.

Substantively, the major difference in qualification for the green card is that Regional Center EB-5’s are allowed to count “indirect” job creation to meet the requirements of 10 new jobs per EB-5 investor. Non-Regional Center EB-5 applicants can only count direct employees.

Benefits

There are many benefits that the EB-5 visa can provide for foreign investors and their families. The EB-5 visa provides an additional immigration solution for non-U.S. citizens who have sufficient financial resources to comply with the requirements. Through the EB-5 visa process, EB-5 visa holders, as well as their family members that qualify under the program, receive conditional Lawful Permanent Resident (“green”) cards. After 21 months, the investor and family members must apply to have those conditions removed, allowing the EB-5 visa holders to retain Lawful Permanent Resident status. Foreign investors who are approved for EB-5 visas can live anywhere in the U.S. as well as work and go to school without any constraints. These benefits carry over to family members that qualify under the EB-5 visa program. Qualifying family members include the EB-5 applicant’s spouse and unmarried, minor children.

Conclusion

Obtaining the EB-5 visa is one of the most complex and difficult immigration processes that exist. Not only are the rules complicated, but they seem to change with little notice from the government. Given the large amounts of money and time at stake, it is essential to have a knowledgeable attorney to help and guide them through the EB-5 application process. If you are considering the EB-5 visa, it will be important that you consult with an experienced attorney to help you make sure that you meet all of the requirements and that everything is filled out and filed correctly. Our experienced Arizona Immigration Law attorneys at Gunderson, Denton, and Peterson PC can help guide you through the EB-5 visa application process as well as answer any questions that you might have.

Written By Brent Gunderson