How can I make an EB-5 investment in a business created before November 29, 1990? What requirements must be met? How many jobs need to be preserved or created? What constitutes a restructuring of the business?
To qualify, the business must either be reorganized (restructured) to result in a new commercial enterprise or be expanded in the net worth or number of employees by at least 40 percent, and 10 full-time jobs must still be created unless it is a troubled business. Please consult with an experienced immigration attorney to discuss your case.
Why do you want to do that? Just make a new venture to comply with the statute. If you really want to do that, consult with an experienced attorney.
You must restructure/reorganize the business such that a new commercial enterprise results, or you must expand the net worth or number of employees by at least 40 percent. Unless the business is a troubled business as defined by the EB-5 immigrant investor law, you still need to show creation of ten new full-time jobs within two years. You should consult with an experienced EB-5 immigration attorney who can advise you specific requirements for your particular situation.
If you invest into a business established before 11/29/1990, to make it qualify as a "new commercial enterprise," you must either 1. restructure the business or 2. expand the business through the investment so that a 40-percent increase in the net worth or number of employees occurs. You must create or preserve (in a troubled business situation) at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor''s admission to the United States as a conditional permanent resident. A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor''s form I-526. The loss for this period must be at least 20 percent of the troubled business'' net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.
The safest and best way is for you to create a new entity that either joint ventures, loans money to, or acquires the assets of the existing entity. This matches the statute and best protects your investment since it is generally not advisable to purchase an old existing company that could have several liabilities.
For an existing business, according to current USCIS policy, you will have to use the investment to restructure and reorganize the business so a new commercial enterprise is created. You will need to show a "substantial change" in the number of employees (so, well more than 10). If the business is "troubled," you will need to show 10 jobs are preserved, created, or some combination. The number of jobs should be maintained at no less than the pre-investment level of employment for two years.
