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How can a Chinese national participate in EB-5 direct from overseas?

I am a U.S. citizen. My brother is a Chinese investor living in China. He wants to do an EB-5 direct investment with my help. He will not get an F, H, or L visa to be in the United States full-time. Is it possible to meet the EB-5 direct management requirements while not present in the United States full-time? Also, with the two-year visa retrogression for Chinese, when does he need to make his investment in the EB-5 application timeline?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The management requirements for an investor are the same whether the case is a direct EB-5 or a regional center EB-5. In most regional centers cases, however, there are managers and project developers who can run the project while the investor waits abroad for his or her immigrant visa interview. In a direct EB-5 context, however, the investor will need to have a U.S. partner who can run the enterprise while the EB-5 case is processing. It is nearly impossible for a direct EB-5 investor to do this alone. The investment must be fully committed to the new commercial enterprise and at risk before the I-526 petition is filed with the USCIS.

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    Ed Beshara

    Immigration Attorney
    Answered on

    A foreign national, in this case Chinese, can make the personal investment in a direct EB-5 business. The Chinese investor can prepare an I-526 petition, which comprises the authentication of the source of the investment funds and the business plan to show how the ten full-time jobs are to be created, and file the petition while the Chinese investor remains in China. The U.S. business can immediately use the investment funds and the EB-5 business can be managed by someone else in the United States. The filing of the I-526 petition puts the investor in the waiting line and for the Chinese investor, once the waiting line is over - it could be two to three years - then the Chinese investor can apply for conditional permanent residency and enter the United States.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    He would need to set up a legal entity in the United States, obtain a location for the business, obtain an FEIN, invest in the business itself and hire employees to run it. He can direct the operations from abroad until he gets here, but this would all be outlined in his business plan. Can he get a B-1 to come and help set it up?

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    John J Downey

    Immigration Attorney
    Answered on

    The statute states that the investor have "an active participation" in the investment. When questioned as to what that would mean they said the same type of participation as a limited partner would have under the Uniform Partnership Act. Therefore I think your brother could fulfill this requirement even if in China. He could participate in corporate meetings by internet or visiting the United States. I would wait and see what will happen with the retrogression problem; they are trying to resolve it.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    While the I-526 is pending, someone will have to manage the business for him, but once he gets his conditional permanent residency he needs to enter the United States and actually become a permanent resident. Too much time out of the United States can result in abandonment of permanent residency. His investment needs to be made before the I-526 is filed.

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