I am doing research whether to go with the EB-5 direct and regional center option. I understand that for EB-5 direct investment USCIS requires the investor to be actively engaged in the day-to-day operation of the company, but before the approval of the I-526 when I am not able to work legally in the U.S., how can I prove the active engagement in the daily operation? I have some experience running a business but establishing a new one in a foreign country could be challenging without help. How would my involvement if I need to pull in help from other professionals?
You can meet the "actively engaged" requirement through a policy making position such as president of the company. You are not required to be actively engaged in the day-to-day operations while the I-526 application is pending. You can hire a manager to cover day-to-day operations until you receive your conditional green card.
If you invest in a regional center, typically you will be a limited partner in the investment partnership. USCIS has ruled this is enough to satisfy the work/manage requirement.
An EB-5 investor must be "engaged in the management" of the new commercial enterprise. One can satisfy this requirement by being a corporate officer, a member of the board of directors, or a limited partner in a new commercial enterprise which is a limited partnership.
Actually, the legal requirements for an EB-5 investor to be involved in the management of the new commercial enterprise are the same for both direct and regional center investments. The difference is that most regional centers are structured as limited partnerships or similar entities, which allow for limited involvement by the EB-5 investors. At a minimum, the EB-5 investor should have limited partner rights (the right to inspect financial records, right to vote on policy matters, right to vote to remove general partner, etc.). In most, but not all direct EB-5 investments, the EB-5 investor will be running the business, unless he or she hires a manager to do it for them. There are several ways a foreign investor can meet this requirement even if he or she is outside of the United States or inside the United States, but without employment authorization. It would be best to get advice from an immigration attorney and a business consultant, who can guide you if you elect to do a direct EB-5 investment.
You raise a quandary and you are absolutely correct. Filing an EB-5 Investor Petition on Form I-526 does not give you any rights or benefits or status in the United States. In fact, you are not eligible to apply for anything until the EB-5 petition is both approved and a visa number is available under the quota. A visa number is in fact available under the quota as of today for all nationals other than for individuals born in China. The best way to deal with this is to show that you are an officer and a director in the legal entity which will own and operate the EB-5 direct investment and that through your percentage of shares and your position as an officer and director you have significant control over the legal entity through which you are making the direct investment. One may be an officer and director and not be employed, so that is how you could arguably get around this quandary. However, you raise another issue; that to make a direct investment you need someone with the experience to run the business on a day to day basis, but that cannot be you until such time as you are work authorized. An investment through a Regional Center eliminates all of those problems.
For direct investment projects, the "actively engaged" requirement for EB-5 is referring to upon becoming a permanent resident (ie., after your Petition is granted) not during the process. You have the option to obtain a nonimmigrant visa status which would allow you to operate the business during the processing or hire manager(s) or have a partner in the U.S. to run the business until you are able.
Most direct EB-5 investors are in the same position. As President/other officer position, you will be adequately engaged in the management of the company to meet the EB5 requirements.
USCIS does not require the investor to be active in the day-to-day operation of the business. The active involvement in the business includes policy setting position, such as a board member or as a limited partner. Also, you need not be active in the day-to-day operation until your I-526 is approved and you obtain the conditional residency. However, such hands-off approach for 2+ years of I-526 adjudication process may not be feasible on a direct business unless you have an experienced manager or partner whom you can trust to successfully run your business.
There are a few ways to show active involvement in the company. You can occupy a specific management function (for instance, President, Director or Manager). You would have to indicate this in the business plan and describe in detail the job duties.
You really answered your own question. Regional center is a better fit for most people.
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