By Samantha Velez
Foreign investors who meet specific criteria from USCIS may apply for and obtain an EB-5 green card investor visa. The EB-5 Visa Program, overseen by the United States Citizenship and Immigration Services (USCIS), was created by Congress in 1990 with the goal of improving the United States economy through capital investment from foreign entrepreneurs and through job creation for U.S. workers. The criteria required for EB-5 investment includes job creation requirements, meeting capital venture amount requirements, and the investor must affirm that the business warrants approval for the EB-5 Program. Upon approval, the investor’s family, including his or her spouse and his or her unmarried children under the age of 21, may acquire green cards.
In 1992, the Regional Center Pilot Program was approved of by Congress; Regional Centers are designated by USCIS depending upon the Regional Center’s proposal for the promotion of economic growth.
Investment Amount
Investors obtaining an EB-5 green card investor visa are required to invest at least $900,000, or sometimes $1.8 million, depending upon where the investment is made, into a U.S. commercial business. A cash admission is not the only form of investment allowed. Investment may take the form of equipment, inventory, tangible property, secured indebtedness or cash equivalents. The dollar fair-market value in the United States is used to valuate the different forms of investment used.
The location of the U.S. business being invested into by the foreign entrepreneur wishing to gain permanent residency in the United States determines the amount of the required investment. If the investment is being made into a Targeted Employment Area (otherwise known as a TEA), the minimum investment amount necessary is $900,000.
EB-5 Job Creation Requirements
USCIS stipulates that the EB-5 capital must create 10 jobs for U.S. workers. The jobs must be full-time; a position is defined as full-time when an employee completes a minimum of 35 work hours each week. In other cases, a job-sharing arrangement may be allowed. For example, two or more employees who qualify may divide the weekly work hours required for a shared position. This does not apply to instances in which employees combine two part-time positions; even if the two part-time positions account for the same amount of weekly hours as a full-time position, part-time positions may not be included in a qualifying job-sharing arrangement. In a job-sharing arrangement, the two employees share the same benefits an employee would normally receive in a full-time, permanent position, such as unemployment premiums and workman’s compensation.
Furthermore, the jobs must be created within two years, beginning after the investor receives their conditional permanent residency. If the foreign entrepreneur chose to invest through an EB-5 Regional Center, USCIS will also count jobs that were created directly and indirectly, depending upon the company’s mode of operation. For example, businesses that generate goods or services for the EB-5 project being invested into will create indirect jobs that may be counted towards the ultimate 10 necessary under the EB-5 Program. In some instances it may be necessary that the investor prove that the capital created employment for individuals who work directly with the commercial unit.
Direct jobs are defined as those for qualified employees and legitimate jobs within the commercial venture into which the foreign entrepreneur has invested the EB-5 capital. On the other hand, indirect jobs are created in businesses that are related to the commercial venture being invested into and are associated with Regional Centers. Qualified employees are defined as a permanent resident, U.S. citizen or other immigrant; a qualified employee must be authorized to work in the United States. Other types of qualified employees may include a conditional resident, a refugee or a person living in the United States under suspension of deportation.
EB-5 Businesses
Different types of entities that an EB-5 applicant may invest in include an EB-5 Regional Center and a new commercial enterprise. New commercial enterprises must be created after November 29, 1990 to be eligible for EB-5 investment. Alternatively, an older business entity may participate if the EB-5 capital creates a 40% growth in the number of net worth or employees. Generally, investment through a designated Regional Center is the most popular form of EB-5 investment. An older business may also qualify to participate if it has been restructured to such an extent that it may be considered a new enterprise. An EB-5 Regional Center administers projects involved in the EB-5 Visa Program. Many investors find it advantageous to invest through a Regional Center because then he or she will not have to set up the EB-5 project independently. The other option, of investing in a new commercial enterprise, includes lawful entities that operate for-profit; these may take on many different forms of business structures, including general or limited partnerships, corporations, business trusts, sole proprietorships and other publicly or privately owned business structures.
