How do I establish an EB-5 business before consular processing?

The EB-5 petition includes a compliant business plan and proof of your lawful source of funds. The business plan will show that when the I-536 petition is approved and when the conditional permanent residency is approved, the investment funds will be used in the new commercial enterprise to create the 10 new full-time jobs. The investments funds can be placed in an escrow account until the conditional permanent residency is approved. The alternative is you can have a U.S. citizen or U.S. permanent resident operate and manage the EB-5 business during the EB-5 approval process.

Your application will be based on projections and your investment funds can be held in escrow until approval of your green card. If you want the business up and running in the meantime, you may need to have a U.S. employee as a manager until you can enter the United States.

To make arrangements for your business in the United States, you will enter on a B-1 visa. On the B-1 visa you have no authority to do the actual work contemplated by your business, but you can do all the preparations. Depending upon the extent of your business preparations, which can include visiting potential suppliers, competitors and purchasers, those preparations can be done before filing the I-526 and, or while, you are waiting its approval. Should you happen to be in the United States setting up your business at the time your visa becomes currently available, you may not choose to use consular processing. You may adjust your status while you are in the United States. You can be flexible. Work with an experienced immigration attorney.

Most direct EB-5 investments require the presence and assistance of a U.S. partner to help start up the business and to conduct meaningful initial business activity until the investor immigrates to the United States. The investor must be involved in the day-to-day management of the business, but that does not preclude a U.S. partner from helping to manage the business or even managing it completely until the investor arrives.

An EB-5 investor petitioner cannot establish a business until he or she has submitted the I-526 and it has been approved, unless you entered the United States through a nonimmigrant visa such as the E-1 or E-2. Even then, to qualify for any of the E visas, the petitioner must be from any of the eligible countries. Further, an EB-5 petitioner cannot enter the United States until he or she has successfully gone through consular processing and received a visa to enter the United States. Moreover, there is no requirement that petitioners are required to demonstrate that they have to establish a business for I-526 purposes. The basic rule for the I-526 petition process is that any petitioner that wants to run his own business (i.e. direct investment) must demonstrate he has at least $500,000 to invest in a U.S. business and will create a minimum of 10 jobs within two years upon entry. Advisably, while your ideas are good, seek legal counseling before proceeding further.

The question is what do you mean by "conduct business"? If you mean to come to the United States and work here so that you receive a paycheck, then NO. If you want to open a business and oversee it from your country and hire U.S. employees, then you may do so. I guess it depends on what kind of business you intend on operating.

This is a very good question and it is difficult to do what you say. Theoretically, you could enter the United States and establish your own business while on a B-1 nonimmigrant business visa, provided you are not involved in direct employment and you are not paid in the United States. It is also possible you could qualify for a temporary L-1 intracompany transferee visa or, if a non-PRC national, qualify for an E-2 treaty investor nonimmigrant visa, although none of those situations are not necessarily available to you. By the way, that is the advantage of investing through an EB-5 regional center. You can make your investment from abroad and do not have to be involved at all in the organization or operation of the business.

The B-1 visa allows for certain activities to establish a business entity in the United States and open a business bank account. Otherwise, you may want to have a partner in the United States who is a U.S. citizen or green card holder, or otherwise has unrestricted employment authorization to help you establish a business. Another option is to have a manager of an LLC or the general partner of a limited partnership who will establish and manage the business entity and structure your position as an LLC member or limited partner with a policy formulation role.

That is the issue with direct EB-5 processing. One way to resolve this is to have a business partner who can manage the business until you are able to come to the United States.

It is a bit of a catch-22. You can establish a business on a B-1 business, although CBP officials may conclude you are working - as it is a fine line - and not admit you. The other option is if you are one of the lucky 80 countries with E-2 treaties, you can get an E-2, or maybe an L-1 company transfer visa.