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How can an investor oversee a U.S. business while applying for EB-5?

My family and I are South African citizens. I run an online company and I registered the business in the State of Delaware in September 2013. The business is paying U.S. federal and state taxes. If I apply for EB-5, does the $1 million need to be in cash or can it be the value of my U.S. business? Also, in order to build the business further I would like to move to the United States ASAP. Could I apply for a H-1B visa to be an employee of my own U.S. business while the EB-5 visa is in progress? Would my family be able to come with me?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    The regulations for a direct EB-5 require a personal investment of funds into the new commercial enterprise. The investment can be cash or assets that have a defined value. If there is an existing business and it has a value then the proceeds from the sale of the business or distributions or salaries can be used as part of the personal investment amount. You can obtain another non-immigrant visa to quickly enter the United States to either live, study or work in the United States while the EB-5 I-526 petition is pending.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The qualifying investment cannot be the value of the business. The investment must be lawfully obtained capital (cash, equipment, inventory, and certain types of indebtedness) from the investor into the new commercial enterprise. Also, you likely cannot self-petition under H-1B if you are the sole owner of the company because there is no bona fide employer-employee relationship.

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    John J Downey

    Immigration Attorney
    Answered on

    The $1 million need not be cash, but it can be equipment, capital goods, etc. - but you must prove the value to be equal to the $1 million. Applying to hire yourself under H1-B would prove difficult. I need to remind you that now the H1-B is a lottery to see if your application would even be considered. You might consider an L-1 visa which would allow you to run your business and also have your family come with you.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    The investment needs to be a "personal investment." Your earnings and dividends from your company may be used. You can receive a loan that is secured by assets, but your proposed source may be more of a challenge. While the I-526 petition is pending, you should have a representative in the United States to manage your business. Your family would receive visas as well if you are approved.

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    Michael A Harris

    Immigration Attorney
    Answered on

    While you are in the process of applying for an EB-5 visa, until you are admitted as a lawful permanent resident, you entering the United States as a temporary nonimmigrant could be an option. Overseeing the business from overseas is an option, as that may not be considered gainful employment in the United States. If you need to be physically in the United States and employed, then the options are limited to a few choices. The H-1B visa category that you mention may be restrictive. Several years ago the USCIS changed its policies for when a self-employed foreigner can be employed by a company when he is in fact the employer. In essence, the USCIS says that there is an employer-employee problem when an owner tries to employ him or herself as an employee. There are legal solutions to overcoming this, and the ownership structure of your enterprise would have to be evaluated. Otherwise, seeking an H-1B visa is not as simple as it was in years' past. Today there are only 65,000 to 85,000 visas available each fiscal year. The quota of visas for this year has already been exhausted, and with a few hundred thousand workers applying each year, it is not a sure bet to obtain an H-1B (until the U.S. changes the law). Other options for temporary work in the United States while your EB-5 are pending may be the L-1 Visa, E-1/E-2 Visa, or other visas depending on a person's citizenship or nationality. As a South African, the E-1/E-2 would not work unless you have a dual citizenship. As for what constitutes your capital investment, cash is certainly one way to measure it. The rules provide that capital invested can be cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness (which is undergoing government review right now) secured by assets owned by the investor. When you initially file for your EB-5 petition, you can include your spouse, and children who are under 21 at the time when you file.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    You can use your business as security for obtaining cash. You would not likely succeed in obtaining an H visa because there is a presumption that a self or family-owned business has not conducted proper recruiting.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    I would suggest a consultation to work out these details as there are several options. Do you have a business in South Africa as well? If yes, an L-1A and EB-1C may be better options. There are no H's now until at least October 1, 2016 (can apply April 1, 2016).

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    J Bruce Weinman

    Immigration Attorney
    Answered on

    The EB-5 investment is not the value of your business - it is the value of your investment. If you have invested $100,000 and the business has grown into a company worth $1 million, you must still invest more capital in order to qualify for EB-5. Your H-1B scenario is not likely to succeed. Do you have any other businesses in South Africa? If you, you might be eligible for an L-1. You are not eligible for an E-2 as a national of South Africa. You can come here on a B-1 temporarily if you are issued one (provided you do not earn any money).

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