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When are EB-5 investments available to the business?

I am an American citizen with the opportunity to buy a business in the U.S. I need investment capital and I have an interested party from Thailand and currently living in Thailand that is willing to invest. The amount of investment is US$1MM and the investor will have a seat on the Board and will also work in the marketing department of the business. The funds are coming from his parents. He has three kids and he is looking to relocate once the green card is secured. He is not in a rush and a 12 + month cycle is fine. Would just he get a green card? What about spouse and children? When is the investment capital available to the business? Does it sit in escrow? The business is a company that is not currently in business but has assets. I feel that up to 14 jobs will be created, 5 immediately and the remainder within the first 12 months. The company currently has no revenues or employees earning a salary. What are the typical fees and timelines?

Answers

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    Clem Turner

    Securities Attorney
    Answered on

    Assuming the parents have obtained their funds legally, the loan to the son should be acceptable. The conditional green card your investor receives would be good for his entire family (spouse and children under 21). Typically, the funds sit in escrow until the Investor''s I-526 application is approved, however this does not have to be the case. However, you should pay the investor his money back if his conditional green card is denied - so leaving the funds in escrow is best. I would expect your immigration and corporate legal fees to be between $40 - $65k, as you only have one investor. However you should speak to an EB-5 service provider and provide the details of your particular deal before an accurate estimate of fees can be provided. The timeline would be a month or two for document production and 4-6 months while USCIS processes your investor''s I-526 application.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The investor, spouse and children under 21 can be included and will receive conditional green cards. The funds should be at risk, which means they should be made available to the new commercial enterprise prior to filing the I-526, or they can be placed in escrow so that the funds are unconditionally release upon I-526 petition approval. There is no specific timing requirement as far as USCIS is concerned. It is a matter to be negotiated and agreed by the parties (as long as the funds are at risk, in a commercial sense, prior to filing the petition). The key will be the comprehensive business plan, which must show a credible, feasible plan for how the funds will be spent in job creating purposes. There are very specific requirements for what must be included in the business plan, but basically you are showing the U.S. the need for the ten fulltime positions for U.S. workers and the timetable for their hiring. The USCIS filing fee for an I-526 petition is $1500. Attorneys'' fees vary.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It appears based on the facts you have presented, it is a direct EB-5 investment with the minimum required investment amount $1M unless your business is within a target employment area qualifying for a reduced investment $500,000. An investor from Thailand and his immediate family members (spouse and 3 children if all under age 21 at the time of filing of I-526 petition with USCIS) will be eligible to obtain immigrant visas after approval of the investor''s I-526 petition and arrive in the US as conditional green card holders (or adjust status to conditional green card holders should they be in the US in another lawful immigration status). It presently takes about 8-9 months to process I-526 petition and roughly up to 6 months to consular process to receive immigrant visas for the investor and his family. It is up to you and your foreign investor partner how you wish to identify the terms of the investment. It is important that a business/transactional attorney drafts up the terms of the agreement. Funds can either be deposited into the company''s escrow account until I-526 petition is approved or be invested and at risk right away. Depositing funds in an escrow gives an investor some additional assurance that I-526 petition is approved and then the funds are released into business. At least 10 full time jobs must be created within 2 years of I-526 approval and must be maintained and demonstrated at the removal of conditions from the investor''s green card (I-829 petition stage). Attorneys'' fees vary. Generally, the quicker the investor and the business entity provide the required documents, the faster I-526 petition is filed with USCIS. Please do not hesitate to call me to discuss the fees and timelines and we will be happy to assist you.

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    Christina Corbaci

    Immigration Attorney
    Answered on

    It sounds like in this particular situation, your Thai investor would be participating in the individual EB-5 investment scenario. In this case, the principal investor''s spouse and children under age 21 could be included in the application and immigrate together after approval of the I-526 Petition (though if any of the children are approaching age 21 we should carefully look at timelines to protect their eligibility). If the investor has a seat on the Board of the company this should meet the requirement that he be involved in the management or policy formation of the business. Also being involved in marketing will help meet this requirement. It is okay that the investment funds come from the petitioner''s parents, as long as the parents can document the source of their gift money (so essentially they would have to document the lawful source of their funds). As far as when the investment capital will be available for use in the business, there are different ways this can be structured - either the funds could come in and immediately be put into operation (which I think is the best way to show that the funds are "at risk", as required by the regulations), and therefore be made available to the business immediately, and even while the case is being prepared for filing and while the I-526 petition is pending, OR, the business could hold the funds in escrow and provide a very detailed explanation as to how the funds will be used immediately upon approval and release from escrow. I find that in many individual investment cases, the capital is needed sooner rather than later in order to get the business up and running, and it puts the company on a better track for having created the ten jobs by the time the two years are up after the petitioner immigrates. In any event, this is something that should be discussed at length with the petitioner, the business, and the attorney. As far as fees and timelines, legal fees should be discussed directly with the attorney who takes the case, but you will certainly be required to pay filing fees to USCIS. There is a $1,500 filing fee for the I-526 petition, and then there are fees for processing the applications for permanent residency that will be filed by the petitioner and his derivative family members (these fees will vary depending on whether the applicants are in the U.S. at the time the I-526 is approved, or outside the U.S. and applying at a consulate). If in the U.S., each applicant will pay $1,070 to apply to adjust to permanent residency. If outside the U.S., each applicant will pay around $400-$700 in various fees associated with the visa applications. I would also mention that because your company is already in existence, you must show that it is a "new commercial enterprise" - it is enough to show that it was legally formed after the date of creation of the EB-5 program, so sometime after November 29, 1990. All in all, an individual investment in a U.S. company can be a very good way of accomplishing multiple goals, for both the investor and his/her family, as well as the U.S. based company.

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    Roberto Ortiz

    Immigration Attorney
    Answered on

    I hope all is well. Please find below the answers to your questions: Would just he get a green card? What about spouse and children? The investor, spouse, and children will get a conditional green card for 2 years. Ninety days (90) before the expiration the conditional green card the investor has to file an application to remove the condition. The condition is removed by the investor demonstrating that his investment created 10 direct full time jobs. When is the investment capital available to the business? Does it sit in escrow? I would recommend to the investor that the investment capital sit in escrow until the I-526 application has been approved. The business is a company that is not currently in business but has assets. I feel that up to 14 jobs will be created, 5 immediately and the remainder within the first 12 months. The company currently has no revenues or employees earning a salary. The investor would want to make sure that 10 direct full time jobs will be created. What are the typical fees and timelines? The attorney''s fees we can discuss them over a phone conversation. The I-526 is currently taking about 8-9 months to get approved. If you have any other questions, please do not hesitate to contact me.

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    David Katona

    Immigration Attorney
    Answered on

    When an individual is granted conditional residency based on an EB5 petition, the spouse and unmarried children under 21 are also granted conditional residency. So, assuming all goes well, the family should be able to join along. In terms of when the funds become available, this is between you and the foreign investor. It is not required to have an escrow agreement. Rather, some foreign investors prefer it this way to ensure that they get the conditional residency before releasing the funds.

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    Mona Shah

    Immigration Attorney
    Answered on

    The structure of the business investment, whether it is immediately put into the business or had in escrow is up to you. There is no EB5 regulation mandating that the money must be kept in escrow. The investor, his spouse and all children under 21 will be eligible for the green card. The jobs must be created within 2 years of the filing.

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    Ed Beshara

    Immigration Attorney
    Answered on

    Great Question.To answer all your questions you need to consul with an experienced US EB-5 immigration attorney. The whole family, investor, spouse and minor children under 21 at time of fling first petition,will all obtain conditional permanent residency.

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    Philip H Teplen

    Immigration Attorney
    Answered on

    The investment can be made in one payment or sequentially. The entire family will earn permanent residence Green Cards, as long as they and the business qualifies. I will be happy to discuss in detail.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The EB-5 regulations require that the investment funds be ?at risk,? when the I-526 petition is filed. USCIS allows the funds to be in Escrow account while the petition is pending, but there is no requirement that any EB-5 investment funds to be first put into an Escrow account. I have had clients invest directly into a business that was ready to start business right away. Thus, it is up to you and the investor to determine how you wish to do business. EB-5 investment program will allow the investor, his spouse and children under 21 to all obtain green card together. Depending on how quickly and complete the documents are, the petition could be completed as quickly as a month. Faster the business and the investor provides me the documents we request as supporting documents, faster I will be able to prepare the I-526 package to file with USCIS. You already know that it takes minimum 8-9 months for I-526 adjudication at the USCIS and 3-4 months for NVC and U.S. Embassy to schedule Immigrant Visa interview, which means it will take minimum 12 months before your investor and his family could come into the U.S. with the green cards. Please contact me if you wish to discuss further.

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    Lei Jiang

    Immigration Attorney
    Answered on

    You have many questions and really need to consult an immigration attorney. Basically, he is eligible for green card through EB5 if he invests $1M. His wife and children will also be eligible as immediate family members. His investment must be working (not sitting in an escrow) in the business and must create 10 full time jobs.

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    Susan Pilcher

    Immigration Attorney
    Answered on

    If the investment and the business opportunity meet EB-5 criteria, the investor and his immediate family members (spouse and children under age 21) can obtain green cards. When the funds would be available to the business would depend on how the business/investment opportunity is structured. You should discuss all of these matters with experienced EB-5 counsel.

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    Kenneth Byrd

    Immigration Attorney
    Answered on

    Thanks for your questions. First, all members of the family can obtain conditional green cards, good for 2 years. After that, we file to "remove the conditions" and make the cards permanent. This requires a showing that jobs have indeed been created and the business is running as planned. The capital is available almost immediately for use in the business. Remember, the capital has to be "at risk" and merely sitting in escrow is not considered at risk. The rules require the investor to have "substantially met" his investment requirement within the initial 2 year period. I hope this helps. Let me know if you have any other questions.

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    Larry J Behar, Esq

    Immigration Attorney
    Answered on

    A well structured EB5 application will include the principle investor and all of his immediate family including children under the age of 21. It is highly recommended that the funds that are to be placed as part of the investment which will be job creating will be placed in a shall he in an escrow account pending the approval of the EB5 application. The result is projected to be a conditional residency which will be acquired in a final stage either from the US Embassy in Bangkok or based on an adjustment of status in the United States. It is essential that a very detailed business plan be presented to your attorney for review as well as an estimate of all costs and fees related to this application.

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    Steven Anapoell

    Securities Attorney
    Answered on

    Access to capital depends on the willingness of the investor to release fund prior to approval of his or her I-526 petition. If investor does not want funds released prior to I-526 approval, then you will wait approximately 6-8 months for the approval (or denial) to occur. I could take longer, but we are generally seeing 6-8 months. Purchasing a business doesn''t create new jobs. You will be required to demonstrate how the investment resulted in an increase of at least 10 new, full-time jobs.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    He and his spouse, along with his children under 21 years of age will be able to obtain permanent residence through the process. In most cases where a project has EB-5 financing, in order to give some assurance to the investor, the funds from the EB-5 investor are held in escrow until the I-526 Immigrant Petition is approved, conditioned on it being returned if the Petition is not approved. This is still considered funds ''at risk'' as far as the EB-5 requirement is concerned. I-526 Immigrant Petition filing fee is $1500 for the USCIS, attorney fees vary, and the timeline is anywhere from 6 to 12 months from filing.

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    Daniel P Hanlon

    Immigration Attorney
    Answered on

    If the EB-5 Petition is approved, the investor, spouse and any unmarried children under the age of 21 could also obtain the green card. It is possible for the investment to remain in an escrow account pending adjudication of the I-526 Petition. In order to be approved, the USCIS must be persuaded that 10 or more full-time jobs will be created via the investment.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    The investor and his spouse and children will be entitled to a green card, provided that they are under 21. The money does not have to sit escrow, it really depends on what ever agreement you have with the investor. Generally, funds are immediately invested with a caveat that should the Visa get denied money will be returned. Fees vary as do the timelines. I would be happy to discuss with you.

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    Jeffrey E Campion

    Immigration Attorney
    Answered on

    He, his spouse, and his eligible children will be able to receive a green card. Whether or not the investment sits in escrow depends on your agreement with the investor. This is not a USCIS issue except that if you use escrow, it may be conditioned only on the approval of the I-526, generally.

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    The investor, his spouse and children under 21 would all be eligible to apply under a single petition (all of them would get their temporary green card). The investment funds do not need to enter into an escrow account and can be made available immediately to the business. It would be prudent that some funds are used before the investor petition is filed, as this adds weight to the I-526 filing. For further information please contact Rahbaran & Associates.

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