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What is a "new" business when investing through direct EB-5?

I want to do direct EB-5. I heard that the investment must be into a "new" business. There is an existing Super 8 motel (established and running for five years) that I am interested in acquiring its stocks. First, I want to establish a new LLC. Then I will invest $500,000 in the new LLC. Then the LLC will acquire the motel through 100% of its stocks, so the motel becomes the LLC's subsidiary. Then the subsidiary motel will create 10 new jobs. So the LLC is new, but the motel is not new. Would this qualify for direct EB-5? What is considered a new business when it comes to EB-5 direct investment?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    A commercial enterprise will be considered "new" if it was established after 11/29/1990. However, beware of buying an existing business because you are required to create new employment; you cannot just create a new company and move existing employees to that entity. You will not be able to count the existing employees unless the business can be classified as a "troubled business." Your description does not appear to meet the new job creation requirement.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The facts you present will not be considered a new EB-5 business. You can invest in an existing business, but then you will have to create an additional ten jobs.

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    John J Downey

    Immigration Attorney
    Answered on

    Yes, as you describe it, you are restructuring the business and investing the required capital and creating the requisite jobs.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    If it is an existing entity, there are different job creation requirements. Yes, it may be good that you have a "new" New Commercial enterprise that will invest in an existing job creating entity, but you still may be subject to the existing business requirements. Furthermore, the new/existing requirements would apply to direct investments as they do for regional center ones. Please consult EB-5 counsel to assist and represent you in this process.

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    Robert Cornish

    Securities Attorney
    Answered on

    You cannot create a "new" business out of an old business for EB-5 purposes unless you are specifically saving jobs from being eliminated, which is a very high burden that makes approval even more difficult. There may well be other options available to you if this is the path you choose. You will need to speak directly with an immigration attorney to ascertain what works best for you.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    You have an interesting, but a little complex situation. I can quote you the definition of a "new enterprise" that would include the Super 8 motel. However, you are actually investing indirectly to an existing business. That fact raises question about how you would count the creation of 10 full time positions. I strongly suggest that you seek immigration legal counsel before making such an investment.

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