U.S. RESIDENCE THROUGH INVESTMENT
An immigrant investor visa (called the EB-5 visa) can be applied through the Immigrant Investor Program directed by the U.S. government office of the U.S. Citizenship and Immigration Services, or USCIS. This program allows qualified persons to seek permanent resident status based on an investment in a U.S. company. The amount of investment is either $500,000 or $1 million depending on the location in the United States. The investment must be in a business that will create jobs for 10 U.S. workers. A total of 10,000 EB-5 green cards are available each year—a number which has not been used up.
To qualify under the program, a potential investor may invest in their personally-managed commercial enterprise, or in a pooled investment which funds a commercial enterprise controlled and managed by other parties. The investor may also choose to invest through a “Regional Center.” Regional Centers are typically private companies in specific targeted geographic areas which the USCIS has determined that investments are likely to create the necessary 10 jobs per investor, whether directly or indirectly, in the region. In many regional centers the minimum capital contribution is $500,000, along with administrative or syndication fees that may range between $35,000 to $60,000. Many regional centers involve limited partnership investments and provide the investor with the rights of a limited partner, a structure which is permitted by USCIS in order to grant the investor a somewhat active role in the company but which is not completely passive.
One potential advantage investing in a Regional Center (as compared with a personally owned business created as an EB-5 investment) is that some investment projects may be pre-approved by the USCIS with respect to the investment financing structure of the project, and with respect to the job creation requirement. As well, regional centers and their projects are required to submit annual reports of their financial status and job creation history to the USCIS each calendar year. Today, there are over 400 EB-5 Regional Centers (and more emerging every day) around the United States. Selecting the right one is very important and requires an understanding of how each EB-5 Regional Center functions. Investors should consider:
- seeking independent qualified financial advice
- the reputation of the regional center and project developer
- the past business success of the developer
- the ability of the regional center and/or developer to create the requisite amount of jobs required by the EB-5 program
- other due diligence factors
- the immigration history of the EB-5 Regional Center, in terms of its ability to secure the approval of investor petitions (called the I-526) and the removal of the conditions on an investor’s permanent residence (called an I-829).
Furthermore, as a potential investor, the following information is provided to allow you to understand some of the basic legal requirements for the EB-5 program in general:
How to Qualify to be an Investor?
- Business Creation. In general, one option is to create a new commercial enterprise by establishing an startup business, purchasing an existing business, or reorganizing the business such that a new commercial enterprise results. Or, if the investment is in a Regional Center that has been designated by the U.S. Immigration Service, an investor can choose to invest in a regional center project.
- Investment. Investors who have made at risk investments or are actively in the process of investing at least $500,000 or $1,000,000 in a new commercial enterprise can qualify. Regional Center investments may require that your funds be held in a secured escrow account. In this scenario, the escrow agent may not release your funds to the Regional Center until you’re the petition needed to grant you permission to apply for residence (called the I-526 petition) is approved by the U.S. Immigration Service.
- Job Creation. EB-5 investors must qualify by making their capital contribution to a U.S. commercial enterprise which will benefit the United States economy and create at least 10 qualified jobs as a result of one or more of the following:
ofull-time employment for 10 directly employed employees such as U.S. citizens, permanent resident workers, or other certain authorized workers; OR
oindirect and/or induced employment as determined by a reasonable job creation methodology support by an economic impact analysis.
- Lawful Source of Funds. Each investor is required to show that the funds utilized in the investment originated from a lawful source of funds. The type of documentation needed will be determined based on the financing structure that you utilize.
Conditional Permanent Residence
Once your petition is approved, Immigrant Investors may obtain status for 2 years as a provisional or conditional resident by filing a separate Application for Permanent Residence if they are residing within the United States. Immigrant investors who are outside of the U.S. will need to apply for a permanent immigrant visa at a U.S. Consular Section. When you are admitted as a U.S. lawful permanent resident, you will be required to seek full permanent residence prior to the end of the 2-Year period. This will entail that a second petition is filed during the 90 day period before the 2nd anniversary of your admission to the United States as a conditional resident.
If you invested in a Regional Center project, then the Regional Center will be responsible for providing you and your family with the documentation necessary to file the petition to remove the conditions on your green card. This is another important difference, or benefit, in choosing a privately-managed Regional Center investment or one similar to it. If you create your own business, as the owner you will be tasked with the burden of collecting payroll records.
In order to achieve full permanent residence, an EB-5 investor is required to have maintained the investment by not withdrawing the funds. Most important is continuing the objectives of the proposed business plan submitted to USCIS. Most business plans require financial and job creation forecasts based on the type of business structure that you, the Immigrant Investor, initially invested in.
Can my spouse and children also receive “green cards” under the EB-5 visa program?
Yes. Your spouse and children (under 21 years old) are eligible for the conditional immigrant visas. No separate investment is required apart from your initial investment of $500,000 or $1 million. Additionally, under the U.S. law called the Child Status Protection Act or CSPA, your children who are close in age to 21 years old will have their age frozen by the government when their petitions are filed and pending. It is important to review these issues with our law firm if your children are approaching 21 years of age.
Suggested Financial Documentation to Prove
Lawful Source of Funds
The U.S. Immigration Service requires that investors demonstrate that their assets were earned in a lawful manner. This requires the investor to prove that their investment funds were obtained through a lawful business, salary, investments, property sales, inheritance, gift, loan, or other lawful means. This may be accomplished through certificates by the investor’s licensed accountants, lawyers, court records, salary statements, tax statements, and real estate documents. The following is a general list, with some being mandatory and other likely to be needed. To better understand what types of documentation are needed, we will consult with you to structure your EB-5 investment:
- Profit and earnings from a business.
- Profits or proceeds from the sale of real estate.
- Profits or earnings from stock or other investments.
- Bank statements showing your available cash savings.
- Investment account statements.
- Documents showing ownership in real estate or a company, accompanied by an appraisal of value and registration of ownership, loan or mortgage, promissory note, security agreement, or other evidence of borrowing which is secured by assets of applicant.
- Tax returns from the last 5 years. (Mandatory, if required under the law of your home country. Some countries do not require tax returns.)
In addition to financial documents, a foreign investor must provide the following documentation:
- Passport copies. Passports must be valid for at least 6 months from the date the Immigrant Visa will be issued. This requirement applies to the foreign investor’s spouse and children filing for a green card through this program.
- Investor’s Resume (Curriculum Vitae). This should include personal and contact information, educational background, professional experience, and employment history (please include name of supervisor and company’s address and phone number).
- Education Records. Copies of academic diplomas.
- Company Records. Articles of organization (if owner of a company).
For Green Card or Immigrant Visa Processing (Not needed for initial phase):
- Certified copies of birth certificates, copies of marriage certificates, and/or divorce decrees and death certificates, if applicable.
- Certified copy of any military record should be submitted.
- Certified copy of police record from the city where the applicant has resided for at least 6 months since turning 16. These records may include but not limited to information on former arrests, crimes, court, regardless of amnesty, pardon, or other clemency.
NOTE: There are likely to be additional documentation requested prior to filing depending on an individual case-by-case basis, and as required by any change to USCIS or U.S. Department of State policies and regulations. An attorney will guide you through the process in tracing your lawful source of income.
Regional Center Information
- To qualify as an investor under U.S. Securities Law you need to be an “accredited ,” as defined by various security laws that describe which investors are permitted to invest in certain types of high risk investments, limited partnerships, and more. In the U.S. an individual is considered to be an “accredited investor” if he or she has a net worth of at least $1 million or has made at least $200,000 each year for the last 2 years ($300,000 with spouse if married).
- Additional documentation will be provided to your attorney by the Regional Center upon its receipt of your signed consent form and later when you escrow your funds to the Regional Center.Your attorney will assist you to communicate on your behalf with the Regional Center in order to request the project’s qualifying information.