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How can the owner of an outsourced U.S. business apply for EB-5?

I live in Vietnam and I own a company in the United States, whose operations are outsourced to another company. I want to apply for EB-5. Would I be considered as currently employed in the United States or doing unauthorized work that would jeopardize an EB-5 application? Will I be able to use the income from my company for the EB-5 investment?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If you are physically present in Vietnam, then you would not be considered employed in the United States or working without authorization. If you wish to make an EB-5 investment, you must document that the invested capital was lawfully obtained and that the new U.S. commercial enterprise likely will create at least ten full-time jobs for U.S. workers. Many EB-5 investors have source of funds documents showing that the EB-5 capital came from business income from other companies they own.

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    Rachel Lew

    Immigration Attorney
    Answered on

    The U.S. Congress Immigration Act of 1990 created the EB-5 program to stimulate the U.S. economy through job creation by giving foreign entrepreneurs the opportunity to permanently live and work in the United States after they have invested in an American commercial enterprise. An enterprise is considered "new" if it was established after November 29, 1990. Enterprises established before November 29, 1990 can also be considered new enterprises if they have been re-organized or substantially changed. The minimum capital investment amount required to qualify for EB-5 status is $1 million per immigrant investor. The limit is reduced to $500,000 in cases of investment in "targeted employment areas." Such qualifying areas must have an unemployment rate of 150% of the national average. A rural area refers to a municipal area with a population less than 20,000 - an investor needs to create at least 10 full-time positions through their investment in order to qualify for an EB-5 petition. The EB-5 investor will also need to prove that the capital investment came from his/her personal account that was derived from legal sources and can be traced through a lawful path of funds that eventually were invested into the company the investor owns in the United States. Additionally, the enterprise the alien uses to apply for EB-5 immigration benefits will have to create and sustain no less than 10 full-time employees in order for the investor to successfully obtain his/her U.S. permanent residency. Full time employment requires a minimum of 35 working hours per week for each employee. This does not include independent contractors. Non-immigrants (those with E, H, L, and other temporary worker visas) are not considered U.S. workers for this purpose. Moreover, the investor and his/her family members are not considered U.S. workers for the 10 full-time employees requirement. Investors are not required to hire 10 employees at the time of initial investment. However, the investor has to provide a petition with a comprehensive Matter of Ho compliant business plan demonstrating the need for at least 10 employees within the next two years after the I-526 petition is filed. The ten jobs can be occupied by U.S. citizens, U.S. permanent residents, asylees, or refugees. Therefore, outsourcing a company's operations to another company does not satisfy the job creation requirement because the employees' wages are paid by another company. Further, if this investor has been employed by his/her own company and was put on payroll while he/she was on an non-immigrant status without work authorization from USCIS, the investor (owner of company) not only is subject to penalties for hiring an unauthorized employee, he/she has also violated immigration law by unlawfully working for the company. Although INA Section 245(k) allows aliens eligible to receive an employment-based visa to adjust status notwithstanding past violations, including unauthorized work for the EB-1, DB-2, EB-3 and EB-4 employment categories, it does not apply to EB-5 employment category. As such, any unauthorized work by the investor while on a non-immigrant visa may jeopardize the investor in obtaining immigrant visa or immigrant status within the United States. Assuming the investor's income from his/her company was characterized as dividends in the company's tax reporting to the governmental authorities, and the investor establishes another company for the purpose of applying for EB-5 immigration benefits, this income can be used as part of the EB-5 investment capital as long as the investor can prove that the funds used to set up the income generating company came from legal sources. However, if the income used to contribute to the new commercial enterprise for EB-5 came from wages earned by the investors' unauthorized work for the existing company while he/she was not authorized to work, that income cannot be used as EB-5 investment capital into another new commercial enterprise in his/her application for EB-5 immigration benefits.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Even though you are employed by a U.S. company, you are not working in the United States. You may be fine, but we would review your employment and immigration history to be sure. You can use income from your employment, but the proper documentation and tracking of those funds needs to be prepared and organized properly by immigration counsel.

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    John J Downey

    Immigration Attorney
    Answered on

    You may use the money from your U.S. entity as long as the funds were obtained lawfully. You should check with a CPA regarding your involvement with your U.S. company. Are your proceeds listed as profits or salary, etc. This will determine if you are employed or just an owner.

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    Nelson Lee

    Immigration Attorney
    Answered on

    Foreigners are free to invest in the U.S. stock market and even start a business. At the same time, the USCIS is very concerned about foreigners working in the United States without proper authorization. Foreigners/immigrants who start their own business need to be VERY careful to limit their activities to the general management of and investment in the business and not "work for" the business like a typical employee. So, you can start, register and own your own business, but you cannot work for the company and earn a salary without a work authorization and an I-9 for your position. If you simply manage your business like an investment, there should not be any need for any work authorization. You indicated that your company's operations are outsourced to another company - so presumably this means that you are not engaged in the day-to-day running of the business. This works in your favor. However, without knowing the full facts of your particular situation, I can only give a very general answer. As for the use of the income from your U.S. based business - there is no requirement that the funds must come from your home country or a foreign country. As long as the funds can be traced to a lawful source, it may be used for EB-5 investment. Tax records, bank statements, business license, financial statements/audit reports etc. can all be used to demonstrate the lawful source of your funds.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    This may be doable, but would need more details. Have you paid taxes on the earnings? Where? As long as you are living abroad it is not unauthorized employment in the United States.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    I understand that currently you own a company in the United States. You live in Vietnam and you are earning income from your U.S. company. You wish to invest in a second EB-5 new enterprise. So long as the income you receive from your present U.S. company has been lawfully earned and you are a non-U.S. person (neither a U.S. citizen nor a U.S. lawful permanent resident), the facts you present would not make you ineligible to make an EB-5 investment in a new enterprise.

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    Robert Lee

    Immigration Attorney
    Answered on

    You could use the U.S. business as your EB-5 vehicle, but you would need to track every investment you made into the company to equal $1 million or $500,000 and show 10 direct jobs being created. With something this complex you are better to get a consult from a lawyer so they can determine the best strategy for your situation.

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    Michael A Harris

    Immigration Attorney
    Answered on

    I do not see why you would unless have entered the United States and performed gainful employment. The USCIS administers the employment verification process in the United States. Each employee in the United States must complete Form I-9. The I-9 requirements state that it must be completed any time you hire a person to perform labor or services in the United States in return for wages or other remuneration. Otherwise, lawfully paid income to you from your U.S. company could be the source of income for your EB-5 investment. More information will be needed to fully evaluate.

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    Robert Cornish

    Securities Attorney
    Answered on

    Full guidance on your question will require significant review of corporate documents and the like by counsel here in the United States. The reason this appears to be the case is that the means by which you own the U.S. company may well be an issue. For example, are you an owner by way of stock, or do you actually own physical property or the like on behalf of the U.S. company? Are you paying U.S. taxes on U.S. income? Under the securities laws, do you "control" this U.S. entity? Mere ownership of stock will not make you an employee, but your day to day involvement in this company, as well as how your relationship is memorialized in corporate documentation (e.g., a shareholder agreement, employee agreement, stock option agreement, etc.) may change how things are viewed.

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