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What is considered active participation in a direct EB-5 investment?

I plan to make a direct EB-5 investment by forming an LLC with my brother (U.S. permanent resident) and starting a franchise business. The LLC will be manager-managed, and I will be a member (not a manager). Would that be enough for me to qualify as holding a day-to-day management or policy formulation role for the purpose of applying for an EB-5 visa? What does USCIS consider to be active participation in a direct EB-5 investment?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Member role in a LLC policy formulation and/or voting on major business decisions should suffice. However, LLC operating documents must be clearly drafted and EB-5 compliant. Please consult an experienced EB-5 immigration and corporate counsel.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You still need to be involved in policy formulation or voting on policy matters of the LLC.

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    John J Downey

    Immigration Attorney
    Answered on

    This question was answered early on by USCIS. They said that "active participation" would be satisfied if it is the same participation as a limited partner would have under the Uniform Limited Partnership Act. Your participation as a member of an LLC should suffice.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    USCIS accepts the member status in a LLC to be a policy formulation role as an active participation, but the LLC operating agreement must be specific as to the member's role and all other business documents, including the business plan, organization charts, etc., must be EB-5 compliant. Thus, please consult with an experienced EB-5 attorney to do this correctly.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    This can be structured to work. If you are involved in the policy of the company, that can be sufficient for developing and directing.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    Active management can take many forms, from policy determination and implementation, to day-to-day management. I recommend you discuss your plans in detail with your investment immigration attorney to formulate a plan that will work with your goals.

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