WOULD YOU LIKE TO IMMIGRATE TO THE UNITED STATES THROUGH INVESTMENT?

For those people who have large sums of money that they would like to invest in the United States, Congress, in 1990, established the “employment creation” category. We do not always recommend the EB-5 program where E, H, L, or other visas may be available to individual investors. Simply because these other visas often offer a path to green cards with less investment or more quickly than the EB-5 path.
This category is not for everyone, but if you qualify, it may be possible to invest in the United States, make money, and obtain permanent residence at the same time. If, after reading this article, you feel you are qualified to immigrate to the United States as an investor, you should contact our office.

$1.8 Million investment

The first requirement is an investment of at least $1.8 million in investment. However, a $900,000 investment is acceptable for rural areas and areas of high unemployment. Each state determines geographic areas of high unemployment. Without this amount, it is not possible to fit within this category.
Qualifying investment capital includes cash, equipment, inventory, and other tangible property. It also includes indebtedness secured by the assets of the investor. However, the assets of the new commercial enterprise cannot be used as security.
The investor must have invested $1.8 million or be actively in the process of making such an investment. Future intent of investment or uncommitted funds in a bank will not count.

New Commercial Enterprise

The law also requires that the invested capital be used towards a new commercial enterprise or business. Such a business can be established in four different ways:
Suppose you are creating an original business. This means developing a business where none was there before.
Suppose you are purchasing and restructuring an existing business. Changing a business from a sole proprietorship to a corporation may be enough to constitute restructuring. However, ten new jobs must also be created.
Expanding, and thereby substantially changing the net worth and number of employees in a business. The investment must provide at least a 40% addition in the company’s net worth or a 40% increase in employees.
Suppose you are investing in a troubled business. A troubled business is a business that has lost 20% of its net worth in the last four months. The company must have at least ten employees, which the investor must maintain. There is no requirement to create ten new additional positions.
Passive investment is not sufficient. An immigrant investor must maintain an active role regarding his or her investment. In addition to creating a new commercial enterprise, the EB-5 program requires the immigrant investor to be engaged in managing the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or through policy formulation.
USCIS approved “regional centers” offer another way to be an immigrant investor. A regional center promotes economic growth through capital investment, creating new jobs, and improving regional productivity centers, including agricultural projects, hotels, dairy farms, assisted-living facilities, etc. They are located throughout the U.S.
A favorable aspect of a regional center is that the investor’s active involvement is limited, allowing free time to pursue other business endeavors or other interests.

Employment of at Least 10 Full-Time U.S. Employees

As important as the actual investment is the requirement that the investment creates full-time employment for at least ten U.S. workers. Although the investors’ spouse and children may be employed, they cannot be counted toward the ten positions. Independent contractors do not count nor do part-time jobs.
For a new commercial enterprise located within a regional center, the full-time positions can be created either directly or indirectly by the new commercial enterprise.
Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
Indirect jobs are those jobs held outside of the new commercial enterprise, but created because of the new commercial enterprise.

Conditional Permanent Residence

Upon petition approval, the investor is granted conditional permanent residence for two years. At the end of two years, a new set of papers must be filed with USCIS to have the conditional residence changed to permanent residence.
Final permanent residence will not be granted if the new business was established solely to evade immigration laws, if the investor failed to invest the requisite capital or sustain the investment for two years, or the investor failed to meet the requirements of the other provisions of the employment creation statute.

The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of information.
This answers most of the frequently asked questions which we receive in our office. If you have questions about immigrating to the United States or any other immigration matters after reading this, please call Litwin & Smith at or contact us by email to arrange a consultation at either our South San Francisco or Santa Clara office. There is an initial consultation fee for the first half-hour.

Sources

USCIS, EB-5 Immigrant Investor Program, https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program