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How can a current employee in a U.S. business obtain an EB-5 green card?

I was on an H-4 visa and then I joined a startup as the company's first H-1B employee. Two years later, the company has grown significantly with very healthy margins and revenue streams from the United States and Singapore. My employer, the business owner, wishes to help me get my EB-5 green card by adding me as a partner in the company. He intends to take the profits from the Singapore entity and show them as investments in the U.S. company under my name (or any other consideration). Would this scenario work for EB-5? How can we create a win-win for my employer and myself, where he benefits and I get my EB-5 visa?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You must show that the funds are yours and not from a foreign company investment that was routed through your bank account just for the purpose of the EB-5. I think there is a way to do what you and your employer are contemplating, but it will require some planning and preparation. The EB-5 law requires an actual investment personally by the investor, and the funds must be at risk. If he or his company is taking all the risk, then it really does not qualify you for EB-5. If the funds belong to you and the risk is all yours, then I would be comfortable with this scenario.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    From limited information provided, it may work if you received dividends or bonuses from the company subject to payment of any taxes as applicable and invested from personal funds. At least 10 full-time jobs creation will still be required. You should consult an experienced EB-5 immigration attorney and corporate counsel to ensure the EB-5 program requirements are fulfilled and appropriate documentation, including comprehensive business plan, is in place.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Without more details I am unable to determine if this could work. You will need to show the lawful source of funds and any loan cannot be secured by the project itself.

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    Michael A Harris

    Immigration Attorney
    Answered on

    Funds will need to originate on your behalf, in most instances, from your personal account. It might be recommended that the payment from the profits be paid to you, subject to any taxes, and then transferred by you from your personal bank account to the U.S. enterprise.

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    Ying Lu

    Immigration Attorney
    Answered on

    First, the investment must be made under your name, which means that the company should turn the overseas profit into your personal earnings. This may cause some tax issues. I suggest you consult with a CPA regarding the tax. Then, once you make the investment into the business, the business shall utilize the investment to create 10 additional jobs. It means that the company should add 10 more full-time U.S. workers on its payroll. Direct EB-5 involves many legal issues; I suggest you consult an experienced EB-5 attorney before you move forward.

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    John J Downey

    Immigration Attorney
    Answered on

    Careful, USCIS will look to the source of funds; this looks like a "gift" from your employer. If you had been a partner during the period of the profits it might have been possible to show this as remuneration for your work. I would first become a partner and then from that time on you could show that your monies were earned by you.

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    Ed Beshara

    Immigration Attorney
    Answered on

    You will have to make an investment of personal funds into the U.S. business. You may count a gift to you as part of your personal funds. The person making the gift will have to show proof of the lawful source of the gifted funds.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You need to make a personal investment of funds. If the company first paid you a dividend or bonus, and then you reinvested into the company, that may be acceptable. The company making an investment on your behalf may not be acceptable.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    It is not clear how you will fund the EB-5 investment. Will the profits from Singapore be given to you as a salary or draw of a new partner that you will turn around and invest into the U.S. company? You, as the EB-5 investor must invest into a job-creating U.S. company. In order to utilize this U.S. company as an EB-5 business, you will need to work with a corporate and EB-5 compliance attorney to prepare the business plans, company organization charts, etc. to make them EB-5 compliant. As this will be a direct EB-5 case, you will have to make sure that the business will add 10+ full-time permanent jobs, excluding the position that you are holding.

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    Stephen Berman

    Immigration Attorney
    Answered on

    If the employer actually gives you this money as an unconditional gift, regardless of whether you get the visa or not, then it has a chance. Otherwise no.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    Your facts look to present a reasonable plan. I assume the business is a partnership begun about two years ago and you would be making a standard EB-5 investment in the partnership which will generate 10 full-time positions. Your application for a standard EB-5 visa petition requires considerable documentation. It would be best to engage an attorney with such experience.

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