EB-5 Employment Creation Visa

Introduction to the EB-5 Employment Creation Visa

High net worth individuals who would like to immigrate to the US on a permanent basis may qualify for permanent resident status through investment.

The program that allows for this is called the EB-5 Employment Creation Visa. Since this type of Business Immigration Visa may be new to you, we should dig a little more.

The general requirements are that the investor be in the process of investing or have already invested US$ 1,000,000 (US$ 500,000 in specific situations, described below) in a new commercial venture and create at least 10 new full time jobs in that enterprise in 2 years.

A successful application creates a 2-year conditional permanent resident status to allow the investor some time to invest the funds in the U.S. business and create the 10 new full time jobs.

Before the 2-year period ceases, the investor needs to file an application to eliminate conditions on residence, showing the U.S. Citizenship and Immigration Services (USCIS) that the investment was made and that the 10 new full time jobs have been filled.

If the investor can establish that these requirements have been met, USCIS should remove the conditions and send an approval with a 10-year permanent resident card, replacing the original 2-year card. The status leads to the possibility for U.S. citizenship 5 years from the initial approval for conditional resident status.

EB-5 Employment Creation Visa Investment Requirements

The basic requirement for investment is US$ 1,000,000. It does not have to have been invested to file the case with USCIS. The EB-5 Employment Creation Visa must be in the process of investing. Once invested, the funds must be determined high risk and devoted to the investment business.

While the investment is generally cash, that is not a requirement. Instruments and inventory to be used in the commercial enterprise can be counted towards the investment sum. Loan proceeds can also be used so long as the loan is secured by the investor personally or by assets that the investor owns and are not used in the investment business.

Funding the investment using loans secured by assets adds risk to the process, and the approach must be thoroughly reviewed by a licensed and seasoned legal professional before proceeding.

The investor must be able to document every dollar being used in the investment back to its origin, to guarantee that the funds are legally his or hers and acquired completely legally.

In addition, gifted funds are allowed provided that it can be established that the giver has freely given the funds and is not receiving reimbursement or anything else of worth in return for the gift. Gifted funds do not need to come from a family member.

Exceptions To The US$ 1,000,000 EB-5 Investment Requirement

In some circumstances, US$ 500,000 could be sufficient to qualify an investor for the EB-5 program. One technique is by setting up the investment business in an economically challenged area. For instance, rural areas with less than 20,000 in population qualify as a Targeted Employment Area.

Another approach is for the investor to prove that the area wherein the investor will operate the investment enterprise is one of high unemployment, 150% of the national standard. The data provided to establish sufficient unemployment must come from government sources.

The other approach is to invest with a Regional Center. A Regional Center is an investment company authorized by USCIS and other government entities to provide investment options to investors hoping for permanent residence through EB-5 Employment Creation Visa. The list of approved regional centers can be found at the following link: EB-5 Immigrant Investor Regional Centers.

Not all regional centers are the same. Any investor looking at investing with a Regional Center must be very mindful to think about the expertise and success rate of the company before investing.

Also, an investor should collaborate with investment, tax and other advisers to review the various offerings made by the company and consider risks, tax implications and overall portfolio impact before committing to a specific investment.

A Regional Center investment cannot be one that ensures the return of the investment. The dollars invested must be at risk.

There are substantial advantages to investing with a Regional Center, and we typically encourage this approach for these reasons. One, as stated above, is the reduced investment requirement of $500,000 as compared to the $1,000,000 requirement through direct investment outside of an economically challenged area.

The other is that the Regional Center investment does not have to lead to the creation of 10 new full time jobs per investor in the same way as processing through direct investment.

Regional Center investments enable the consideration of economic impact on the local economy in the form of indirect employment.

Reasonable economic methodologies can be used to establish sufficient indirect employment to meet the employment creation requirement.

At Davis & Associates, we are experienced helping our clients successfully navigate the EB-5 Employment Creation Visa process. Contact us to discuss your questions about the process. We would be happy to help!

About Davis & Associates:

Davis & Associates is the immigration law firm of choice in Miami, FL and surrounding areas. Their attorneys provide expert legal counsel for all aspects of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals. Attorney Garry L. Davis is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.