Obtaining Green Cards Through Investment - The EB-5 Program

The EB-5 Visa category requires an investment of $500,000 to $1,000,000 in a new commercial enterprise that will benefit the United States economy and produce ten full time jobs for workers. (In certain circumstances the purchase or expansion of an existing business may qualify.) Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. Of the 10,000 investor visas available annually, 5,000 are set aside for those who apply under a pilot program involving an USCIS-designated "Regional Center."
The USCIS maintains a list of approved EB-5 (Immigrant Investor) Regional Centers by State. As of May 2012, there are more than 200 such Centers.

A "Regional Center":

• Is an entity, organization or agency that has been approved as such by the USCIS;
• Focuses on a specific geographic area within the United States; and ,
• Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.

"Alien investors" must:

• Demonstrate that a "qualified investment" (see below) is being made in a new commercial enterprise located within an approved Regional Center; and,
• Show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

Once the EB-5 petition is approved, the investor becomes a conditional resident for two years and once the conditions are removed, a permanent resident.

Eligibility

Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their family (spouse and/or unmarried children). Eligible aliens are those who have invested OR are actively in the process of investing, the required amount of capital into a new commercial enterprise that they have established. The applicants must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States. In general, "eligible individuals" include those:

• Who establish a new commercial enterprise by:
  • Creating an original business;
  • Purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or
  • Expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and

• Who have invested -- or who are actively in the process of investing -- in a new commercial enterprise:
  • At least $1,000,000, or
  • At least $500,000 where the investment is being made in a "targeted employment area," which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area as designated; and

• Whose engagement in a new commercial enterprise will benefit the United States economy and:

  • Create full-time employment for not fewer than 10 qualified individuals; or

  • Maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.

To Obtain Status as an Immigrant Investor
In order to seek status as an immigrant investor, you must file USCIS Form I-526, Immigrant Petition by Alien Entrepreneur. The Form I-526 must be filed with supporting documentation that clearly demonstrates the individual’s investment meets all requirements, such as:

• Establishing a new commercial enterprise,
• Investing the requisite capital amount,
• Proving the investment comes from a lawful source of funds,
• Creating the requisite number of jobs,
• Demonstrating that the investor is actively participating in the business; and, where applicable,
• Relating employment within a targeted employment area.

To Obtain Status as a Conditional Resident

Once the USCIS Form I-526 is approved, immigrant investors may obtain status as a conditional resident by:

• Filing USCIS Form I-485, Application to Register Permanent Residence or Adjust Status, if residing within the United States;

To Become A Permanent Resident Based on Investment

In order to become a lawful permanent resident, eligible investors must file a Form I-829, Petition by Entrepreneur to Remove Conditions. USCIS Form I-829 must be filed within 90 days before the second anniversary of an Alien Investor’s admission to the United States as a conditional resident.

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