EB-5 Entrepreneurs or Investors Visa

The EB-5 Visa provides the clearest path to a green card based on a U.S. business investment. An EB-5 applicant is required to enter the United States to engage in a new commercial enterprise. To qualify, an investor must maintain more than a passive role in the new enterprise upon which the petition is based. The regulations require an EB-5 immigrant to be involved in the management of the new commercial enterprise. The petitioner must either be involved in the day-to-day managerial control of the commercial enterprise or manage it through policy formulation. One may invest in an existing business or a new business. For investments in an existing business, proof that the required amount of capital was transferred to the business after November 29, 1990, and that the investment has increased the net worth or number of employees by 40 percent or more. More than one person may invest in the same business. The EB-5 investor may be a minority owner of the business.

Benefitting the U.S. Economy

Congress created the fifth employment-based preference (EB-5) immigrant visa category in 1990 for immigrants seeking to enter to engage in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. The EB-5 Entrepreneurs or Investors Visa was created in the hopes of attracting foreign capital to the U.S.. The overall advantage of the EB-5 visa category is that it allows the beneficiary to engage in commercial enterprise anywhere in the U.S. subject only to some restrictions in the pilot program targeting certain areas. There are 10,000 visas available in the category each year, one-half of which are reserved for people who participate in a Pilot Program option designed for targeted investments in approved regional areas.

Requirements

There are three basic requirements requirements for the EB-5 visa:

• The alien must establish a business or invest in an existing business that was created or restructured after November 19,1990. An EB-5 investor must be engaged in the management of the enterprise either through day-to-day managerial control or through policy formulation.  A purely passive role is not permitted. 
• The alien must have invested $1 million USD ($500,000 in some cases in "targeted employment areas") in the business. The investment can be in the form of cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien provided that they are personally and primarily liable and that the assets of the new commercial enterprise are not used to secure any of the indebtedness. The definition specifically excludes capital acquired by unlawful means.
• The business must create full-time employment for at least 10 U.S. workers.

The Application Process

EB-5 Permanent Resident status involves making the investment, filing the appropriate petition at a CIS Service Center, and applying for an Immigrant Visa at a United States consulate or applying for Adjustment of Status in the U.S. After "Conditional" Resident Status (Green Card) is granted, the individual must wait one year and nine months to file an application to remove the "conditional" status. With this application, evidence of the creation of the 10 jobs, if necessary, is required as well as proof that the entire investment has been made. Upon approval of the application by USCIS, the applicant is granted Permanent Resident status.

Contact Millar & Smith Business Immigration Attorneys

We can analyze business opportunities and advise you whether they may qualify for an EB-5 Green Card (lawful permanent resident status). We do not, however, give business advice or analyze an investment for determining financial viability. You are encouraged to hire accounting and business law experts to conduct a due diligence analysis of your investment.

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