How can I participate in the EB-5 program with an existing business?
I am a U.K. citizen and I own a business in California. Can I invest in my existing company for my EB-5 application, or do I have to establish a brand-new business to support this application? Also, can part of the required investment be held in the business bank account, or do I have to spend it all?
You may be able to make an EB-5 investment in your existing company. More information is needed to determine this. Part of the EB-5 investment can be held in a business bank account when the I-526 petition is filed. The entire EB-5 investment must be spent when the I-829 petition is filed.
Depending on when the business was established and as long as you can meet the EB-5 requirements (ie., minimum capital investment, requisite job creation, etc), then yes, you can process for the EB-5 using an existing business.
USCIS has a specific definition for existing that includes businesses established before Nov. 29, 1990, so yours may likely still be a new commercial enterprise, which would still require a $900,000 or $1.8 million investment and the creation of 10 jobs. The new capital must create 10 jobs.
You can invest in your own business. Depending on how many years you have owned it, you can get credit for the money you already invested and the employees you have already hired.
You can use an existing business if it was formed after Nov. 29, 1990, or it meets the definition of a troubled business, or you are restructuring in a manner that results in a new enterprise. This exception is not used much because there is little guidance as to what qualifies. However, the 10 full-time, permanent jobs that you create as a result of your investment need to be new. If they existed before you invested, they do not count, unless you are investing in a troubled business, but it does not sound like that applies here. Also, the investment has to be in the business. Buying an existing business or shares from someone else is not a qualifying investment, as the money doesn''t go toward job creation. You may be able to use past investment in the company, but keep in mind you need to show the lawful source of all money invested in the company, not just the current $900,000 or $1.8 million. Depending on how old it is, you may have to go pretty far back in time to document the source of funds. There are some nuances and possible pitfalls, but this is certainly possible. You just need to work through all the issues with an experienced EB-5 immigration attorney.
As long as your business was established after November 1990, you do not have established a brand-new business. It is likely that your previous investment into the commercial enterprise could be used for EB-5, even if you obtained an E-2 treaty investor visa with the same investment. Keep in mind that all capital must be at risk and fully committed to the new commercial enterprise. That does not mean that all of the invested capital must be spent prior to filing your I-526 immigrant petition, but it all should be at risk and committed/identified to being spent for a particular business purpose and show a nexus or connection to job creation.
It is possible to use an existing business although often its best if you plan the EB-5 application from the beginning so you can meet the eligibility criteria. Keeping money in a bank account will most likely not succeed as you have to show how the investment has created the requisite number of jobs.
You can certainly convert your current business to EB-5-qualified business. Setting a new one is not necessary. If you invest in the old business, it must be in the amount that is required in the specific zone that either requires either a minimum of $900,000 or $1.8 million. Advisably, work with an EB-5 attorney to ensure the business can be properly reorganized to fulfill the EB-5 requirements including but not limited to, the required amount, jobs, etc. In this type of circumstance, writing a business plan that meets the Matter of Ho standard is an ideal starting point.