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How can I plan my direct EB-5 investment while out of county?

I am planning a direct investment in a franchised restaurant in a TEA. Does the investment need to be made prior to I-526 petition approval and therefore prior to entering the U.S.? It does not seem possible to start a business in the U.S. from outside the country. Further, how could it be sustained without its sole operator during the time required to get all approvals?

Answers

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    Yes, the money is required to be "at risk" prior to the approval of I-526. Commonly, the funds are placed in an escrow account. An arrangement could be made that states that funds will be released upon approval of I-526 petition. It may be best to apply for a B1 visa, which will allow you to enter the United States and therefore be able to make all necessary business arrangements, then apply once you have returned to your home country.

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    Lei Jiang

    Immigration Attorney
    Answered on

    You need at least the funds in escrow and other documents before filing your I-526. At this stage, you do not need to actually run the business.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    Yes the money has to be at risk prior to the I-526 being approved. Generally, the money will be held in escrow, pending approval. You may consider entering on a B1/B2 visa and applying for a COS.

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    Philip H Teplen

    Immigration Attorney
    Answered on

    The investment or at least the contractual work and escrow of initial funding needs to be done in order to file the I-526. I will be happy to consult with you.

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    Rohit Kapuria

    Immigration Attorney
    Answered on

    This is not an ideal situation, but yes, your investment must be made in full, prior to the I-526 process. While it is difficult to manage a business from outside the U.S., you could theoretically hire a manager during the interim period and if you have a B1 visa, you could visit to ensure everything is going smoothly. Of course, this may not be practical if your business forbids this proposed solution. You should definitely engage the services of experienced immigration counsel who could offer you fact specific advice.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You have posed a good question. The EB-5 law and regulations require that an investor has invested or is in the process of investing the required amount of capital. This must be shown prior to and at the time of submitting the I-526 petition. You can use a business partner to assist you in setting up the U.S. company and starting the business. Or you can obtain a business visitor visa to come to the United States to attend business meetings, negotiate for a commercial lease for restaurant space, and to meet with vendors or other partners. In the alternative, you could set up an escrow arrangement where the funds to purchase and/or fund your EB-5 investment vehicle will repose in an escrow account and will be released only upon approval of the I-526 petition. You are right, though. It is not easy to run the business from abroad, particularly between the time your I-526 petition is approved and the time you receive your immigrant visa and enter the United States as a conditional lawful permanent resident. That is why a U.S. business partner is so helpful.

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    Anthony Ravani

    Immigration Attorney
    Answered on

    A lot of clients do it while they are out of the USA. You would need to hire an attorney that is practicing business law and is willing to help you on the business side as well as the immigration.

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    Bill Travis Klein

    Immigration Attorney
    Answered on

    You come into the U.S. on a Visitor Business Visa to make all the necessary arrangements (contracts, licenses, etc) and apply once all requirements have been completed. I recommend you consult with an Immigration Attorney who can walk you through the process and help you with the necessary legal paper work.

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    Margo Chernysheva

    Immigration Attorney
    Answered on

    It is a very good question, but the investment needs to be made or be in the process of being invested. What investors do is put money in escrow and the escrow agreement states that the money will be automatically transferred to the seller as soon as EB-5 visa is received. That way, the business information including tax returns and profit and loss statements will be provided from the seller, your business plan will show how you are going to operate and grow your business, and create 10 new full-time jobs, and you do not have to actually buy the business until after your visa is approved. You will have a challenge convincing your seller that they have to wait another year before completing the sale and escrow will have to stay open that long but that''s the way to go about it. You can always buy the business and have a manager manage the business for you while you are waiting for your visa as well. The most important thing is to hire an experienced immigration attorney to assist you through the process from the very beginning.

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    Ed Beshara

    Immigration Attorney
    Answered on

    Investing in a franchised restaurant is possible but an early decision has to be made of the details of who can operate the restaurant while you are waiting for the I-526 petition to be approved and then Conditional Permanent Residency to be issued which in total may take over 12 months.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    The general rule is that the investor must have invested the required amount of funds ($500,000 if in a TEA), or be in the process of investing. Being "in the process" can be done by placing funds into escrow. Planning for an EB-5 investment requires consideration of timelines, goals, and business necessities, which is why retaining U.S. immigration counsel that is experienced with all matters of the EB-5 program (like the attorneys at our law firm) is highly recommended!

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    Karen Weinstock

    Immigration Attorney
    Answered on

    It may be smart to pursue non-immigrant visa options if they exist in your case to ensure you have the ability to get in and out of the country while your I-526 is pending. You should consult with an immigration attorney.

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