Dale SchwartzImmigration Attorney
Yes, you can.
Can I purchase the land or start running a business prior to applying for a direct EB-5? Is there a time limit between starting a business and the application?
Yes, you can.
Both situations are possible as long as the intention was to start the business in anticipation of EB-5 financing coming in. It'll have to be described in detail in the business plan along with supporting evidence, but it's possible.
If you wish to make a direct EB-5 investment, at any time you can start and purchase the land, rent the property, run the business and file at a later date your EB-5 petition on Form I-526 once you can establish that you have made the minimum investment of $1 million. That is, unless your direct investment enterprise is located in a targeted employment area, in which case, it would be $500,000.
You may start an E-2 U.S. business and purchase the land with a substantial investment under $500,000, such as $150,000. Then, when you are able to invest the balance of $350,000, you can file an EB-5 petition.
Yes to the first point, no to the second.
A direct EB-5 business needs to be formed prior to filing an EB-5 petition. A comprehensive EB-5 business plan compliant with EB-5 visa requirements must support the minimum required job creation. If you are not authorized to work in the U.S., you will need to be in a passive investor role or have a manager run your direct EB-5 enterprise. It is highly advisable you hire an EB-5 immigration attorney/business attorney/EB-5 business plan writer to help you properly set up a business structure and prepare your EB-5 case.
Yes, you could certainly purchase the land and start the business before filing for your EB-5. However, as the business plan and source and path of funds are so critical to your chance of approval, I recommend you retain a qualified investment immigration firm before you take any action.
You can purchase land and/or start running the business prior to applying for a direct EB-5 case, but you may want to hire a manager or have a business partner help you since you will not be authorized to work in the United States until much later in the process (or maybe at the end of the process). There is no time limit, but it will strengthen your case if you show meaningful business activity in addition to the requirement that the invested capital be placed at-risk in the new commercial enterprise.
No, restriction can start long before filing.
Purchasing a land will not qualify as EB-5, as it is a passive investment not really to create jobs, which is the focus for EB-5 program. However, purchasing or starting a business is usually what happens before filing for the direct I-526 petition. While there is no particular time requirement between starting a business and then filing an application, if all the elements to prove EB-5 case are met, then there is no reason to wait much. I would advise that before you set up a company, make sure that you work with an EB-5 lawyer to incorporate or form the company properly for EB-5 purposes.
There is no time limit between starting the business and investment. You can take as much time as you want. Given that I-526 processing is close to two years, it is in your advantage to file the petition ASAP. Do you have a NIV that allows you to run a business in the U.S.?
There are many things you can do before formally applying for the EB-5. You can certainly purchase the land and start running the business. You need to be careful, though, that you need to make the required investment amount. That is $500,000 or $1 million, whichever the case might be, and you need to be able to prove that this very investment alongside all the other borrowings played a key role in creating the requisite jobs. If the nature of the business is that once you start it, it will be an ongoing concern, you might have a difficult time relating the job creation to the EB-5 investment you are making. You need to be careful about that. Therefore, engage an EB-5 professional or team before going too far in your project.
You can purchase land, but that does not lead to an EB-5 case. To run a business you need to have a work permit and that requires a work visa.
Regulations require you to have invested or be in the process of investing. If the business is operational before filing, that will probably be OK, depending on all the other details.
You can always invest in a business (purchase land and put money in a business) in the U.S. prior to applying for EB-5. However, unless you are in the U.S. on an authorized visa status to operate the business, you will have to wait to run the business until you are approved for EB-5. You have options here (i.e., either obtain a non-immigrant investor visa if you are from a treaty country or hire a manager to run the business until you are authorized, etc).
Initially, ensure you put in place a business plan known as a Matter of Ho-compliant business plan. Generally, such a plan will detail how your direct investment business will be operated and how the business will meet EB-5 requirements such as: the amount of investment, which is usually not less than $500,000 or may be as much as $1 million, depending on the business location; and how you will create at least 10 jobs within two years. You can buy the land as a starting point. The business should start right at the same time as when the petition is filed.