Business & Investor Visas

Having capital to invest is your first step towards success as an investor. However, if you would like to invest in a U.S. based commercial enterprise, you will require an EB-5 visa. EB-5 visa application process can be overwhelming and confusing, particularly if you are not familiar with immigration laws. Consulting an experienced immigration lawyer is the best way to acquire your visa. Our lawyers at Orange County Immigration Attorney are ready to assist you in applying for a business and investor visa.

The Immigrant Investor Program - the Answer to a Permanent Green Card in the U.S.

The Immigrant Investor Program is quickly becoming a key source of investment in the USA, creating thousands of job opportunities and attracting millions of dollars to the economy. Also known as EB-5 or employment-based fifth preference, this program is the only program managed by U.S Citizenship and Immigration Service (USCIS) that permits people to acquire permanent residence straight away after entering the U.S.

Typically, a foreign investor should be in a position to prove in the EB-5 application that their business will benefit the U.S. economy through the business. For instance, if your enterprise offers services to clients overseas and returns no benefit to the U.S. economy other than employing more than ten employees, then it's unlikely to meet the ‘'benefit to the U.S. economy'' requirement. On the other hand, if your business offers goods or services to the USA market, then it meets the above requirement.

Introduced in 1990, green cards for investors are limited to ten thousand annually. They are also limited from any other country. That means if the number of persons who apply in a given year exceeds ten thousand or a massive number of investors from an investor's home country apply that year, the investor could be put on a waiting list depending on the date they submitted the first part of their application.

Many investors do not have to worry about being placed on the waiting list unless you are from a country with a high population. In its early years, the program was undersubscribed. This was as a result of the complex and lengthy application process, financial requirements changes, and high denial rates for investor petitions.

In 2005, the USCIS formed an Investor and Regional Center Unit to improve internal coordination as well as oversight. The USCIS also issued new draft recommendations that were tailored to increase efficiency and accelerate processing. Since then, the popularity of business and investor visas has increased rapidly. According to a study conducted by ICF International, the number of Immigrant Investor Program rose from sixty-four in 2003 to approximately one thousand three hundred in 2008.

EB-5 Requirements

There are two ways to acquire an employment-based fifth preference visa. Many investors use regional centers (private or public firms that run enterprises that create jobs). This could be attributed to the fact that an investor doesn't have to start their company, and the needed investment amount is $500,000 as opposed to $1,000,000.

Although regional centers are approved and designed by USCIS to watch out for initial requirements and conditional employment-based fifth preference visas, they run independently. That means you need to be cautious when choosing a regional center; USCIS doesn't protect you from losing your investment.

Also, in spite of regional centers being the most sought-after method of applying for investor visas, the program isn't a permanent component of the USA immigration law. The congress keeps on amending the law.

You can also acquire the employment-based fifth preference visa through direct investment in your business. However, you should invest at least $1,000,000 in starting a new business or expanding or restructuring a company that is already functional.

Where Should the Investment Funds Originate

The full required amount should come from you. In other words, you cannot share the investment amount with another investor and expect either of you to obtain a green card. Usually, the required investment amount is reduced to $0.5 million if your enterprise is situated in a Targeted Employment Area (TEA). The Targeted Employment Area could be in a rural area or a place with a high rate of unemployment.

The USCIS will examine where you got the money from to ensure the funds were from a legitimate source. Therefore, you are required to provide proof like an investment, salary, the sale of legally acquired assets, inheritance, or gifts.

The investment can be made in cash or cash equivalents like loans, promissory notes, and loan certificates. You can also put the value of inventory, equipment, or any tangible property into your business. You should make an ownership share (equity ownership) as well as put the company at risk of total or partial loss should the business perform poorly.

You can also use borrowed money for your investment provided you remain responsible. The loan should be secured (of course not by property belonging to the firm you are purchasing).

Hiring Workers for your Enterprise Requirements

Your business should hire more than ten full-time employees (excluding independent contractors), offer goods or services, and benefit the American economy. The term full-time engagement means more than thirty-five hours of service in a week.

The investor, their children, and spouse are not calculated among the ten workers. However, other family members could be counted. The ten employees don't have to be Americans but should not have nonimmigrant (temporary) US visas. Foreigners who are entitled to indefinitely work and live in America (asylums and refugees), as well as green card holders, are counted as the required ten workers. Foreign nationals residing in the USA with a non-immigrant status such as H-1B are also considered qualified employees.

You Must be Actively Involved in your Business

It is crucial to bear in mind that you will not be in a position to send money, do nothing, and then expect to become a permanent resident. Instead, you should be actively involved in your business either in a policy-formulating or a managerial position. That means that passive investors like land speculators do not satisfy this requirement.

Requirements of a New Business

If you are looking for an EB-5 visa through direct investment, your investment should be made in a new enterprise. You can choose to:

  • Start a new enterprise,
  • Purchase business and reorganize or restructure it to form a new entity, or
  • Purchase a company that was founded after November 29, 1990.

If you purchase an existing enterprise, there should be a growth of either the business net worth or the number of workers by forty percent. Moreover, you should make the entire required investment and also prove that your business created more than ten full-time job opportunities.

If you choose to purchase a failing business, you must prove that the enterprise has been running for two (2) years and has incurred a yearly loss of twenty percent of the business' net worth for over two years. You are still required to invest the entire amount needed.

However, to obtain the unconditional green card, you don't have to prove that you have created ten jobs. Instead, you will need to prove that for the two years since you purchased the business, you've hired as many employees as were engaged during the purchase.

When is $500,000 Enough to Obtain an EB-5 Visa

The standard investment amount to get a U.S. green card based on investment is $1,000,000. However, this amount can be lowered to $0.5 million if your business is situated in an urban area with a high unemployment rate or in a rural area.

The unemployment rate should be one hundred and fifty percent of the national average. Typically state governments will identify parts of their state with the high unemployment rate and then provide a list of qualifying locations to USCIS.

So what happens if you want to invest in an area with a very high unemployment rate, but it's not on the U.S Citizenship and Immigration Services list? One, you can send USCIS a letter from a state government authority confirming that the area of your proposed project has been marked as a high unemployment location. You can also get published technical bulletins with the location's unemployment rates from the U.S. Bureau of Labor Statistics’ Local Area Unemployment Statistics (LAUS) office. USCIS could also accept any statistical documentation provided it is from a reliable source.

A rural area is any place outside an official metropolitan statistical location or the outer borders of a city with more than 20,000 people.

It is worth noting that most regional centers are located in Targeted Employment Areas as a way of attracting more investors.

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How to Get a Permanent Residence through the Employment-based Fifth Preference

There are four main steps that you should complete to be an American permanent resident through the employment-based fifth preference program. Once you complete these steps, you, your unmarried children who are below 21 years of age, and your spouse become the United States, permanent residents. Additionally, you have the choice of becoming a full citizen five years after acquiring your permanent residency. The following are the steps to get permanent residence through the EB-5 visa:

  1. Find an EB-5 Project

You should first find an appropriate project/business to invest in. An EB-5 project can be a regional center project or a new commercial business. Generally, overseas immigration agents will help you find a project that meets your needs. You should also make sure you meet the standard investor income requirement to move to the next step.

  1. I-526 Petition and Capital Investment

After deciding on the business to invest in, you ought to make the full required amount in your project. Normally, investments are made into an escrow account. Your immigration lawyer will then present evidence of the money by filing an I-526 petition with the U.S. Citizenship and Immigration Services.

USCIS will notify you whether your petition was accepted or not after twelve to eighteen months. Many renowned regional centers refund the investment fund if I-526 is not approved.

  1. 2-year Conditional Permanent Residency

In this step, you become a U.S. conditional resident for two years. This allows you to implement your EB-5 project. Like mentioned earlier, you qualify to be an American resident once your I-526 petition is granted. You can get residency in either of the following ways:

  • If you have legal status in America, you need to file form I-485 to change your status to conditional permanent resident, or
  • If you don't have legal status in America, you should file for a visa by presenting form DS-230 to the National Visa Center. Form DS-230 is processed through your country embassy or the United States consulate.

Both steps are complicated and call for assistance from an experienced immigration lawyer. On average, the visa will be issued in six (6) to twelve (12) months.

In the course of the 2-year conditional residency period, you are required to meet the physical presence requirement. You can't stay outside America for a period exceeding a year without acquiring a re-entry permit.

  1. I-829 Petition and Unconditional Permanent Residency

In this step, you come to be an unconditional permanent resident by removing your 2-year conditional status. You should file an I-829 petition with the USCIS ninety days before the second birthday of the date you first received the conditional residency. I-829 petition provides evidence that you have satisfied all EB-5 program requirements. Normally, USCIS gives an unconditional permanent residency approximately six (6) to eight (8) months after submitting an I-829 petition.

What is an EB-5 Project?

An EB-5 project can assume any business model and run within any industry. It can be structured either as a corporation, sole proprietorship, limited partnership, or business trust. Different kinds of EB-5 investment projects include (but not limited to):

  • Casinos
  • Manufacturing
  • Restaurants
  • Sports stadiums
  • Agricultural developments such as farms and wineries
  • Entertaining venues
  • Convention centers

Choosing the right EB-5 project and regional center to invest in can be overwhelming. Nonetheless, this is the most vital step of the green card application process. This is because your permanent residency relies on your project's ability to comply with USCIS requirements and job creation.

You could be interested in a particular project because you are experienced in the industry or are familiar with the project area. Nonetheless, there are factors you need to put into consideration before choosing where and what to invest in. They include:

  1. The different industries within the regional center designation
  2. The number of EB-5 investors committed to the project
  3. The number of jobs created and how they are allocated among investors
  4. The risks related to the project
  5. Does your business plan comply with Matter of Ho?
  6. Your project's expected returns
  7. What/how is the screening process for investors
  8. Has the regional center ever been bankrupt or charged in court?
  9. Will the investment and other related levies be refunded if your I-526 petition is not approved?

Let no one pressure or lure you into a certain project. Instead, do your homework before investing.

Key EB-5 Service Providers

The Immigrant Investor Program application process is complex and involves engagement with several government authorities in the U.S. and your nation. You should complete and then submit a business plan, petition paperwork, among other necessary documentation. That means the application process requires important input and material preparation by competent industry experts. Discussed below are professionals who will help you when preparing an EB-5 petition:

A Marketing Firm

An experienced marketing company should help you conduct a market study as well as prepare a competitive analysis (both are the main requisite business plan elements). Typically, USCIS examiners want to see a business with a well-done marketplace analysis and a plan to differentiate and market the business.

Immigration Attorney

The role of a qualified immigration lawyer can't be overemphasized. The attorney should be the dominant building block; they should serve as a liaison and facilitator for EB-5 resource providers helping you in your project. Common services offered by the lawyer, including advising on different aspects of the I-526 petition, USCIS representation, preparation of the petition and regulatory documentation, and petition's legal support.

EB-5 Business Plan Preparation Expert

USCIS expects every investor to prepare and submit a complaint and comprehensive business plan that professionally and adequately discuss the proposed project. Failure to complete and submit a professionally done business plan leads to I-526 petition denial.

The Immigrant Investor Program business plan should adhere to USCIS requirements put in place in 1998 in Matter of Ho. In the precedent-setting case, the required elements that should be in all business plans were listed. The list clarifies what the petition should show to prove the business plan, and the proposed project is viable. The list comprises of mandated elements such as:

  • A financial and budget projection
  • Business description
  • Personnel experience
  • Marketing plan and a target market analysis
  • Mandatory permits and licenses
  • Business structure
  • Competitive analysis
  • Job descriptions

Most of the above-mentioned mandated elements are complex and should be presented comprehensively. The most effective way to make sure your EB-5 business plan is consistent with USCIS requirements is engaging the services of a renowned business plan writing firm that is acquainted with USCIS requirements.

Economist

It is important to document the economic impact of your business within your business plan. There are many ways to show this requirement, but the best is through an economic study that is prepared by an economist. The economist will use statistics, calculations, assumptions, and charts to make an argument that the proposed investment will create ten full-time job opportunities.

What are the Benefits of an EB-5 Visa?

An EB-5 visa has various benefits, as discussed below.

Access to Prestigious Educational Institutions in the World

Once you obtain a green card, your children will be in a position to attend U.S. schools and universities as well as take advantage of grants, scholarships, and discounted tuition rates only available to Americans.

Employment Opportunities

Remember the saying, “America is a land of opportunities.” When you acquire an EB-5 investor visa, you are allowed to take any job position in any state. Moreover, you don't need a sponsor, and there are no time limitations on your employment. You are also entitled to apply for professional licenses.

Live in any Part of the U.S.

If you invest in a regional center, there is no restriction on where you and your family should live. Once you enter America, you are permitted to invest in other ventures that may interest you. You also have to freedom to enter and leave the country without risking being denied re-entry.

Direct Route to Citizenship

Unlike other non-immigrant visas like E-2 and L-1, EB-5 is a direct application for a green card. When you enter America through business and investor visas, you get a conditional residency and later become a permanent resident. This lowers the number of issues that could arise when applying for a visa.

You Don't have to Depend on a Sponsor

EB-5 visas don't have sponsorship requirements. Primarily, it offers a perfect immigration solution to those with financial resources. It neither requires an employment offer nor a labor certificate.

Understanding Why Most Investors Prefer Regional Centers to Direct Investment

One of the reasons why investors find regional centers more attractive is because they can reside in any part of the USA. You don't need to live by your investment. Also, you can work anywhere since employment isn't tied to your project.

Also, it is not a must for investors with projects affiliated with a regional center to be involved in the daily management of the company. Instead, you can choose to be involved only in policy formulation. Normally, the business is structured as a limited liability company or limited partnership, and you become a limited member or partner, respectively. You are also entitled to all benefits of the Limited Liability Company Act or State's Uniform Limited Partnership Act.

Another benefit of using a regional center is that USCIS allows investors to count induced, indirect, and direct jobs in the job creation requirement. Direct jobs are identifiable jobs for qualified workers employed by the enterprise in which you have directly invested your capital. Indirect jobs, on the other hand, are the jobs a commercial enterprise that is affiliated with a regional center creates Induced jobs are jobs created within the area where the regional center is situated as a result of money being spent by a project's employees.

Find a Competent Immigration Attorney Near Me

Since there are several qualifications required to realize success in the EB-5 investor program application, you need to have in-depth knowledge of the process. It isn’t enough to do all the actions that would make you eligible; you need to prove that you are eligible. Records and evidence collected and presented by a qualified attorney like the Orange County Immigration Attorney could not only help you realize success but also avoid legal complications. To learn more about the EB-5 program or to schedule an appointment, please contact us today at 714-909-0426.