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How can I use an H-4 EAD to start a new business and also apply for the EB-5 program?

I have an H-4 EAD based on my husband''s approved I-140. I want to start a new business and directly invest $500k in a TEA project next year. This is our plan: first, we invest $150k to start a new business (most likely a franchise), which will generate 4 jobs. Next, once this business is set up, and we have a sufficient amount of experience, we will invest $350k in the second project and start the EB-5 process. We are expecting this business will generate 6+ jobs. There will be a gap of around 8-9 months between the 1st business and the 2nd business. We may also use some profit of 1st business as an investment in a 2nd business. Will this plan qualify for EB-5? Also, we are aware of that fact that things may change with H-4 EAD and EB-5 over next couple of months.

Answers

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    Answered on

    It is possible to make a direct investment via the EB-5 Immigrant Investor Program if you invest in a holding company owning businesses. Consult an experienced EB-5 immigration attorney before you proceed with your plan.

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    Answered on

    If you have an H-4 EAD that says your husband had an approved I-140 petition and you would normally be able to qualify for Lawful Permanent Residency based upon your husband''s pending Application for Adjustment of Status based on his approved I-140 petition. If visa numbers are significantly backlogged, you might consider speeding up the process somewhat by filing an EB-5 petition on Form I-526. The key here is visa availability; generally, visa numbers are available for those individuals born in countries other than China. For those individuals born in China, there is a growing backlog of at least 4-5 years. The good news is you are authorized to work, so you could start any business with your initial $150,000 investment creating 4 jobs. Then, once you have invested an additional amount up to at least $500,000 [assuming your business enterprise is located in a Targeted Economic Area (TEA)] and you have a plan to hire and continue to hire over a multi-year period 10 or more United States workers, you may be able to file an I-526 petition. Your source of funds will be critical and there may be a question of whether or not you can include earnings from your initial investment. You should also be aware that there is every possibility that the minimum dollar amount will go up significantly to at least $800,000-$850,000 to as high as $1.3 million prior to your ability to file an I-526 petition. So, this increase in the minimum dollar amount may make your plan less feasible.

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    Answered on

    This planned business may not qualify for EB-5 based on the described investment strategy. It appears you are angling for a direct investment but your strategy appears not to be strong enough for an eventual approval for an EB-5 immigrant visa. Also, additional facts are needed before making a final decision. Advisably, consult an EB-5 attorney.

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    Answered on

    In theory, this could work, but I would need more details to be sure. When you say two projects, are they part of the same enterprise?

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    Answered on

    It has always surprised me that more H-4 EAD holders do not apply for the EB-5 Program (whether directly or through a regional center) to escape the languishing EB-2/3 waiting line. The key would be to consult with an experienced EB-5 lawyer to make sure the money is properly traced and you have a good business plan in place.

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    Answered on

    For EB-5 Immigrant Investor processing, you must invest the minimum required capital ($500,000 if the business is located in a Targeted Employment Area, $1million if not), and create at least 10 full-time jobs with that investment. You can not split the minimum required capital into 2 businesses. You may want to look into investing the full amount in an entity which will own both businesses in order to get around this issue.

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