I am from Canada and my cousin, who is a U.S. citizen, owns a trucking business in the U.S. Last year, I invested $1 million in his business and he made me the limited partner of the company. We are in the process of using this money to hire more American workers and expand the business. Recently I heard about the EB-5 direct investment and I think my situation is very close to the EB-5 direct model. How can I apply for EB-5 “retroactively” based on the investment I made? Do I have any other options here to have my investment help me get a green card?
If you can document your lawful source of funds and meet all EB-5 requirements, this is certainly an option. Businesses must create at least 10 full-time positions with an EB-5 investment. Full-time means at least 35 hours a week. Contractors cannot be counted toward full-time positions.
These cases are usually more difficult because you may not be able to adequately show the source of funds that you personally invested. But if you can, and if you meet all the requirements, you can retroactively file and you may qualify. You need top counsel to do this.
You can apply "retroactively," as you put it. You do not have to wait until the 10 new full-time employees are hired. You just need a business plan to show that they will be hired within two years.
As long as you can prove that the money you invested into your cousin's business was derived from a legitimate source, you can apply for your EB-5 green card based on this investment.
Your investment of $1 million could be a vehicle for you to proceed with an EB-5 immigration case if your brother's business qualifies as a "new commercial enterprise" under the regulations. You need a consultation appointment with an immigration attorney to address this issue and to talk with you about how the EB-5 case would proceed. EB-5 seems to be the best option for you to immigrate to the U.S.
You can make a direct EB-5 investment by filing on Form I-526 showing that you are in the process of making that investment and the fact that you have already invested $1 million. It should show that it resulted in the employment of 10 individuals. You can still argue that should still count as a direct EB-5 petition for EB-5 purposes.
Yes, you can use the $1-million you previously invested in the U.S. business to process for your EB-5, as long as the other requirements can be established (i.e., requisite minimum job creations, legal source of funds, etc.). And since the business involves a relative solid documentation that this is indeed an at-risk business investment, not a mere loan, it would have to be provided.
If you have already made the $1-million investment, it should not be disqualifying that you have delayed a year or two in filing the immigrant investor petition. However, you should be aware that the minimum investment amount might rise very soon, and it may be in your interest to get an immigrant petition on file at the soonest opportunity.
You cannot retroactively apply for EB-5, but you may work with an experienced EB-5 attorney to track the SOF of the $1 million you invested last year and then prepare the case. Since it has not been that long, as long as the funds of your investment could be tracked, it is not too late to submit the petition.
You definitely can apply for EB-5 based upon your previous investment. As a Canadian, you also might qualify for the quicker option of an E-2 if you own at least 50 percent of the business.
Yes, you should be able to use the money you invested as a basis for an EB-5. However, it is your $1-million investment that was needed to create the 10 new jobs, not some other investment.
