The questions require the services of an experienced EB-5 immigration attorney to undertake the analysis and recommendations. You can be legally in the United States while the investor I-526 petition is being adjudicated. The EB-5 business can receive the personal investment funds and start operations through the management by U.S. citizens or permanent residents.
I am currently on an H-1B and would like to apply for an EB-5 visa by starting an LLC that holds long-term rental properties and sells fixed-up properties. Being on an H-1B, I would be a passive investor; the LLC would be completely run by a hired team and I would not be a part of its day-to-day operations. The source of funds would be my savings, equity in real estate, and the money generated in the LLC by doing fix and sell and operating income from rentals. Would this be a good model to get started on an EB-5 visa? If not, how could this model be made better?
John J DowneyAnswered on
You have a couple of sticky issues. One is planning to use the profits as part of the investment; you would have to convince the USCIS examiner in your business plan that it is feasible. The second is using crews to move from place to place refurbishing real estate; if you plan on a $500,000 investment, then you must show that the employment is in TEA areas. If you plan on a $1 million investment, then the roving crews could work.
You have to make sure that you are NOT violating the terms of your H-1B nonimmigrant status. Any funds earned in violation of U.S. immigration law likely would not be considered lawfully obtained. Also, you should have a source of funds (SOF) that can be clearly documented and it is probably best not to have your SOF originate from your passive investment activities in the LLC, if the LLC is going to be your qualifying new commercial enterprise (NCE). In order to make such a model work, you likely would have to document the SOF for your investment into the LLC, then make money in the LLC and take it out as profit (without that being considered unauthorized employment), pay income taxes on those profits, and then reinvest the profits into the NCE in order to qualify for EB-5. There may be a more efficient and safer way to structure your idea so that it works better. You should consult with an experienced EB-5 immigration attorney who can give you some specific ideas.