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The EB-5 Investor Green Card

Congress created the The EB-5 Investor Green Card Program  in 1990 to stimulate the U.S. economy through capital investment as well as job creation through foreign investors. Under a pilot program enacted in 1992, and regularly reauthorized since then, investors may also qualify for EB-5 classification by investing through regional centers designated by USCIS based on proposals for promoting economic growth.

Every year there are 10,000 EB-5 immigrant visas available. 3,000 EB-5 visas are also set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

There are two different ways for an investor to get lawful permanent residency for themselves and their immediate family members through the  EB-5 visa—the Basic Program and the Regional Center Pilot Program.

 

Each program requires the immigrant investor to make a capital investment of either $500,000 or $1,000,000 (depending on whether the investment is in a Targeted Employment Area [TEA] or not) in a new commercial enterprise located within the United States. TEA is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.”

In order to qualify under the EB-5 category, foreign investors must invest in a new commercial enterprise that was:

  • Established after Nov. 29, 1990, or

  • Established on or before Nov. 29, 1990, that is:

    1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
    2. Expanded through the investment so that at least a 40-percent increase in the net worth or number of employees occurs

 

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
 

  • A sole proprietorship

  • Partnership (whether limited or general)

  • Holding company

  • Joint venture

  • Corporation

  • Business trust, or

  • Other entity, which may be publicly or privately owned.
     

This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

Note: This definition does not include noncommercial activity such as owning and operating a personal residence.

Job Creation Requirements

An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying​ employees.​  

  • For a new commercial enterprise ​not located within a regional center​,​ ​the full-time positions ​must be created​ directly by the new commercial enterprise to be counted.​ ​This means that the new commercial enterprise (or its ​wholly owned​ subsidiaries) must itself be the employer of the qualifying employees​.​​

  • For a new commercial enterprise located within a regional center, the f​ull-time positions ​can be created​ either directly or indirectly by the new commercial enterprise. ​​

    • Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs.

    • Indirect jobs are those jobs held outside of the new commercial enterprise but that are created as a result of the new commercial enterprise.

  • In the case of a troubled business, the EB-5 investor may rely on job maintenance.

    • The investor ​must show that the number of existing employees is being​,​ or will be​,​ maintained at no less than the pre-investment level for a period of at least ​2​ ​years.​
       

A troubled business is a business that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

A qualifying employee is a U.S. citizen, lawful permanent resident or other immigrant authorized to work in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B nonimmigrant) or who is not authorized to work in the United States.

The definition of Full-time employment is  employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the regional center program, "full-time employment" also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.

A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions even if, when combined, the positions meet the hourly requirement per week.

Jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as permanent full-time jobs. However, jobs that are expected to last at least 2 years are generally not considered intermittent, temporary, seasonal, or transient in nature.

 

Advantages of EB-5 Category
 

There are many distinct advantages to the EB-5 category based on what our EB-5 lawyers have noticed.

 

·        Not required to submit PERM labor certification. In other words, you do not need to demonstrate that there is a shortage of domestic (U.S.) workers to perform that job.

·        Not required to have a permanent job offer in the U.S.

·        Not required to maintain an existing home-country business. You are permitted to close your business in your home country and still acquire your green card. Compared to the EB-1C category, which requires you to maintain business operations, the EB-5 is usually preferred.

·        No need to demonstrate extraordinary ability.

Can I Use Premium Processing?

No. Premium processing, or the service offered by the USCIS to shorten your petition processing time to 15 calendar days, is unfortunately not available for the EB-5 green card.