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Overview

Congress created the employment-based fifth preference (EB-5) immigrant visa category in 1990 for immigrants who invest in and manage U.S. companies that benefit the U.S. economy and create at least 10 full-time jobs for U.S. workers. The basic amount required to invest is $1 million, although that amount may be $500,000 if the investment is made in a “targeted employment area” or a rural region. The law allows up to 10,000 foreign investors a year to qualify under the EB-5 program. 3,000 are reserved for immigrants who invest in “targeted employment area.” A separate allocation of 3,000 visas is set aside for people who participate through a regional center program discussed below.

When investors first make their investment, they get a “conditional” green card good for two years. At the end of that time they must prove that they have maintained their investment and have created at least 10 jobs before their conditional status will be removed and they become regular green card holders.

Statutory Requirements

The Regular Program

Immigration and Nationality Act (INA) §203(b)(5) provides a yearly maximum of approximately 10,000 visas for applicants to invest in a new commercial enterprise employing at least 10 full-time U.S. workers. To qualify under the EB-5 category, the new enterprise must: (1) be one in which the person has invested (or is in the process of investing) at least $1 million (or at least $500,000 if investing in a “targeted employment area”) after November 29, 1990; (2) benefit the U.S. economy; and (3) create full-time employment for at least 10 U.S. workers. Moreover, the investor must have at least a policy-making role in the enterprise.

The Regional Center Program

To encourage immigration through the EB-5 category, Congress created a temporary pilot program in 1992. Through this innovative program, foreign investors are encouraged to invest funds in an economic unit known as a “Regional Center.” The pilot program has been renewed several times.

A Regional Center is defined as “any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment.” A center seeking USCIS approval must submit a proposal to show “in verifiable detail how jobs will be created indirectly through increased exports,” as well as the amount and source of capital committed and the promotional efforts made and planned. Once a regional center application is approved, an applicant seeking EB-5 status under the pilot program must make the qualifying investment within an approved regional center. Some of the approved regional centers have long and well-established track records; others are newly established and relatively untested.

The number or regional centers has exploded in recent years. There were about 32 approved regional centers in 2008. As of June 1, 2015, USCIS had approved approximately 676 regional centers.

As of June 4, 2015, USCIS has terminated 34 regional centers. A regional center’s participation in the EB5 program may be terminated when it fails to

  • Submit Form I-924A on an annual basis, on a cumulative basis and/or as otherwise requested by USCIS to demonstrate continued eligibility; or
  • Promote economic growth as required.

Comparing Regional Center and Regular programs

The profiles of the Regular Program investor and the Regional Center EB-5 investor are very different. For the Regular Program investor, the business is the driving force behind his or her investment: he or she actually wants to start and/or manage a business; he or she wants to have control over his or her investment; and his or her business will be creating employment up front.

On the other hand, the regional center often meets the needs of investors whose primary motivation for making his or her investment is immigration: he or she is not interested in starting a business; although he or she may want to start a business, it will not create sufficient employment to satisfy the requirements under the Regular Program; he or she wants to be geographically mobile; he or she wants to spend most of his or her time outside of the U.S.

The major advantage of the regional center as compared with a regular EB-5 investment is that the investment has been pre-approved by USCIS with respect to the qualifying amount of the investment and with respect to the job creation requirement. The Regional Center Program allows “indirect” job creation, which is less difficult to achieve than the “direct” creation of 10 new jobs. The requirement of creating at least 10 new full-time jobs may be satisfied by showing that, as a result of the investment and the activities of the new enterprise, at least 10 jobs will be created indirectly through an employment creation multiplier effect. To show that 10 or more jobs are actually created indirectly by the business, the Regional Center can submit a report prepared by an economist using reasonable methodologies, such as multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting tools which support the likelihood that the business will result in increased employment.

Essentially, the Regional Center program eliminates the need to deal with the many complicated issues involved in an individual EB-5 case for which the investment enterprise has not been pre-approved, such as whether the investment is in a “targeted employment area;” whether the investment is in a “troubled business;” whether the requisite “employment creation” has taken place; and whether the investment meets the “establishment” of a new commercial enterprise standard.

Also, the EB-5 policy management requirement is minimal in that the investor can be a limited partner with only a policy-making role and still qualify. Thus, for those who are not interested in day-to-day management or running an active business, Regional Center programs offer a more acceptable form of investment for the inactive investor.

In summary, the main advantages of the Regional Center program are as follows:

  • Direct and separate employment creation is not needed. Instead, it is enough if 10 or more jobs will be created directly or indirectly as a result of the investment.
  • No day-to-day management of an active business is required for Regional Center cases.
  • There is no quota waiting list at the present time.
  • For Regional Center programs, there is no requirement to live in area where investment is made; applicant can work, go to school or retire anywhere in the U.S.;
  • Fast-track adjudication may be available for Regional Center cases.

The usual progression from EB5 to Green Card

Please click here to see a flowchart demonstration of the process from the beginning to receiving a Green Card.

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Documenting Lawful Sources of Funds

The requirement to document lawful source of funds is the same whether the investment is an individual investment or a regional center investment. The difficulty of documenting the lawful source of funds often varies greatly by country. The EB-5 regulations require the investor to prove that the invested capital was "obtained through lawful means." Specifically, 8CFR§204.6(j)(3) requires either "foreign business registration records"; corporate, partnership and personal tax returns filed within 5 years; "evidence identifying any other source of capital"; or documentation of court judgments or pending court cases. In practice USCIS requests all of the listed categories of documents and, in most cases, significantly more documentation. This is one area of the law where simply following the regulations will not be sufficient. In many EB-5 cases, documenting the lawful source of funds can be the most time consuming part of the process. The investor should be aware of the need for substantial documentation. Sometimes, the investor may have gone to great lengths to avoid having documentation of the very transactions that now have to be proved for purposes of the EB-5 petition. A good rule of thumb is that if the attorney can understand, through the documentation, where the money came from, the chances of being able to satisfy USCIS should be greatly enhanced.

Filing Procedures

Obtaining a green card through EB-5 investment is a two-step process. First, Form I-526, “Immigrant Petition by Alien Entrepreneur” is filed. Once the I-526 petition is approved, the investor obtains a “conditional” green card good for two years while he operates his investment business (or while allowing a Regional Center to operate the enterprise to which the investor contributed the investment funds).

Second, within 90 days prior to the end of the two-year conditional residence, Form I-829, “Petition by Entrepreneur to Remove Conditions” must be filed. Upon approval, the investor gets a “permanent” green card without any remaining conditions.

USCIS policy is to adjudicate EB-5 petitions in the order they are received. However, USCIS has seven criteria for expediting any case, including EB-5 cases. They are:

  • Severe financial loss to company or individual;
  • Extreme emergency;
  • Humanitarian situation;
  • Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States;
  • National interest or Department of Defense interest;
  • USCIS error
  • Compelling interest of the government.

USCIS EB5 Adjudication

The EB-5 Adjudications Policy Memorandum is the guiding document for USCIS administration of the EB-5 program. It builds upon prior policy guidance for adjudicating EB-5 and is applicable to, and binding on, all USCIS employees.

Initial Evidence to Accompany the Petition

The petitioner may be required to submit information or documentation that USCIS deems appropriate in addition to that listed below.

(1) To show that a new commercial enterprise has been established by the petitioner in the United States, the petition must be accompanied by:

(i) As applicable, articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership, joint venture agreement, business trust agreement, or other similar organizational document for the new commercial enterprise;

(ii) A certificate evidencing authority to do business in a state or municipality or, if the form of the business does not require any such certificate or the State or municipality does not issue such a certificate, a statement to that effect; or

(iii) Evidence that, as of a date certain after November 29, 1990, the required amount of capital for the area in which an enterprise is located has been transferred to an existing business, and that the investment has resulted in a substantial increase in the net worth or number of employees of the business to which the capital was transferred. This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth, number of employees.

(2) To show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk. Evidence of mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital.

Such evidence may include, but need not be limited to:

(i) Bank statement(s) showing amount(s) deposited in United States business account(s) for the enterprise;

(ii) Evidence of assets which have been purchased for use in the United States enterprise, including invoices, sale receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity;

(iii) Evidence of property transferred from abroad for use in the United States enterprise, including United States Customs Service commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property;

(iv) Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder's request; or

(v) Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by assets of the petitioner, other than those of the new commercial enterprise, and for which the petitioner is personally and primarily liable.

(3) To show that the petitioner has invested, or is actively in the process of investing, capital obtained through lawful means, the petition must be accompanied, as applicable, by:

(i) Foreign business registration records;

(ii) Corporate, partnership (or any other entity in any form which has filed in any country or subdivision thereof any return described in this subpart), and personal tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind filed within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner;

(iii) Evidence identifying any other source(s) of capital; or

(iv) 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 petitioner from any court in or outside the United States within the past fifteen years.

(4) Job creation — (i) General. To show that a new commercial enterprise will create not fewer than 10 full-time positions, the petition must be accompanied by:

(A) Documentation consisting of photocopies of relevant tax records, Form 1-9, or other similar documents for ten (10) qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or

(B) A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than 10 qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired.

(ii) Troubled business. To show that a new commercial enterprise which has been established through a capital investment in a troubled business meets the statutory employment creation requirement, the petition must be accompanied by evidence 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 two years. Photocopies of tax records, Forms 1-9, or other relevant documents for the qualifying employees and a comprehensive business plan shall be submitted in support of the petition.

(5) To show that the petitioner is or will be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial control or through policy formulation, as opposed to maintaining a purely passive role in regard to the investment, the petition must be accompanied by:

(i) A statement of the position title that the petitioner has or will have in the new enterprise and a complete description of the position's duties;

(ii) Evidence that the petitioner is a corporate officer or a member of the corporate board of directors; or

(iii) If the new enterprise is a partnership, either limited or general, evidence that the petitioner is engaged in either direct management or policy making activities. For purposes of this section, if the petitioner is a limited partner and the limited partnership agreement provides the petitioner with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the petitioner will be considered sufficiently engaged in the management of the new commercial enterprise.

(6) If applicable, to show that the new commercial enterprise has created or will create employment in a targeted employment area, the petition must be accompanied by:

(i) In the case of a rural area, evidence that the new commercial enterprise is principally doing business within a civil jurisdiction not located within any standard metropolitan statistical area as designated by the Office of Management and Budget, or within any city or town having a population of 20,000 or more as based on the most recent decennial census of the United States; or

(ii) In the case of a high unemployment area:

(A) Evidence that the metropolitan statistical area, the specific county within a metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150 percent of the national average rate; or

(B) A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area. The letter must meet the requirements of 8 CFR § 204.6(i).

Testimonials

I just want to let you know that I received my green card today and my wife's green card is on the way. I am amazed of how fast they approved my petition. You did a wonderful and very professional job, I will be forever grateful with you. BTW I refer a friend of mine with you, his name is XYZ. He is a very nice guy. Thanks again for you great job.

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DISCLAIMER: Information contained on this site is intended to educate the general public only and does not constitute legal advice. Readers are encouraged to seek advice and counsel from a law firm with experience in immigration and nationality law.