A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, December 26, 2014

The EB-5 Investment Visa - A Quick Summary

Summary of the EB-5 Visa Program:

  • A special visa to allow foreign nationals to obtain U.S. permanent residence (“green card”) if they invest capital in a new or troubled enterprise and create at least 10 full time jobs for U.S. workers.
Benefits of the EB-5 Program: 
  • Generally faster than other categories as the visa numbers are currently available for all countries including China and India (although China may have a cut-off date in 2015).
  • Does not have specific qualifications or experience requirements.
  • Family members including spouses and children under 21 can also obtain U.S. green cards.
  • Can invest directly or indirectly through third party companies. 
How many EB-5 visas may be issued every year?       
  • Up to 10,000 EB-5 visas may be issued annually.  3,000 are set aside for targeted employment area (with high unemployment) 
How much capital is required to invest in the EB-5 visa program?
  • US$1,000,000 of investment is required in the regular program – Investors choose the business to invest their capital. 
  • US$500,000 of capital is required if investor invests in Regional Centers 
Do I need to invest the total sum of capital immediately?
  • No, capital can be invested in installments depending on the type of business, as long as there is a concrete plan to invest the required amount of money in the U.S. enterprise. 
Which investment option should I choose – $1,000,000 or the $500,000?
  • The investment of one million dollars allows the investor to choose any business to invest in.  It is more suitable for investors who already have certain type of business in mind and who intend to be actively involved in the business enterprise.  The Regional Centers ($500,000) may be more suitable for the passive investors who do not want to be actively running the business. 
What documents are required to prove that I have the capital to invest?
  • The U.S. government would like to know that you have the stated capital to invest, and also that the capital comes from legal sources.  Typically, financial documents from the last five years are required including, for examples, personal or company income tax returns, foreign business licenses and registration, salary records, bank account records,  real estate documents, stock and security ownership documents, etc. 
What other documents are needed to prove the case?
  • Depending on the applicant and the business being invested, other documents may be required including: bank statements showing amounts deposited in the U.S. business accounts for the enterprise, evidence of assets purchased for the U.S. enterprise, evidence of property transferred from abroad to the U.S., mortgage agreement, promissory note, security agreement, evidence that U.S. workers have been hired, etc.   
Would it be a problem if I have had a pending court case against me before?
  • It depends.  Provide certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the immigrant investor from any court in or outside the United States within the past fifteen years. 
Are there risks involved in my investment?     
  • EB-5 is an investment visa and carries all the “normal” risks associated with investing in a business.  Investors must perform their due diligence before making an investment decision.  In fact, the EB-5 regulations require that the investment must be placed “at risk” in order to qualify for the EB-5 visa.  
Before my EB-5 visa application is approved, is there a way to protect my investment?
  • Yes, it may be possible to place the funds in an escrow account during the adjudication process. Once the I-526 petition is approved, the funds will be transferred to the Eb-5 enterprise upon approval of the immigration visa petition.  
What are the basic procedures of applying for EB-5 green card?         
There are two major steps:
  • File I-526 with evidence to apply for 2 years of conditional lawful permanent resident status
  • File I-829 with evidence to remove conditions 90 days before the 2nd anniversary (evidence must match the initial business plan) 
What U.S. government office will be handling my EB-5 applications? 
  • Generally, the United States Citizenship and Immigration Services (USCIS), a branch of the Department of Homeland Security, will be adjudicating the EB-5 petitions. 
What does it mean by “conditional lawful permanent resident status” or green card?
  • Even if the USCIS agrees that the evidence is sufficient to support a I-526 EB-5 petition, the  petitioner (foreigner) will only be approved for a temporary green card for 2 years. This is called the conditional green card.  A second petition I-829 must be filed within two years to remove the conditions to make the green card permanent. 
How can I remove my conditional status?
  • Ninety (90) days prior to the two-year anniversary of the date on which the immigrant investor obtained conditional lawful permanent resident status, the immigrant investor must file a Form I-829 to remove the conditions.  Additional evidence must be filed to prove that the required capital has been invested or being actively invested as initially planned, and 10 full-time jobs have been or are expected to be created within a reasonable time.  
What are Regional Centers?
  • A Regional Center is a business entity approved by the USCIS to be involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.  However, just because it has been approved by USCIS, it does not mean that it is a “safe” or “good” investment. Currently there are about 290 to 300 Regional Centers approved. 
How do I know which Regional Center to invest in?    
  • It is ultimately an immigrant investor’s decision to choose which Regional Center to invest in.   Professionals such as attorneys, accountants, business and financial professionals may provide professional guidance and advice to help you make the decision. 
Should I use an agent, consultant or other middlemen to help me invest in the EB-5 visa program?

  • Many intermediaries (agents, immigration consultants, investment companies, etc.) receive financial incentives from the regional centers or other related parties.  Therefore, their advice may not be objective.  In fact, some of them have been found to use exaggerated or even untruthful information to attract foreign investment.  Consequently, it is very important for foreign investors to hire independent business, financial and legal professionals to do due diligence and to investigate the offer of investment program thoroughly. 

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