How can we proceed with our direct EB-5 investment?

The investment requirements will likely be determined by a a host of factors, such as location (rural or urban) and amount required ($500,000 or $1 million), just to name a few. In e-commerce, valuation of the intellectual property is a difficult issue to deal with and this may have a significant effect on the amount of capital that can be attributed to both of you as investment funds. In spite of this fact, as investors, you are expected to put at the disposal of the operation of the business an amount of either $500,000 or $1 million. Generally, the fund must be in either escrow or an account of the company showing the money is available for operations of the business. The investment fund cannot be simply in your individual accounts being shown in some bank statements.

In order to apply for permanent residency under the EB-5 program, the investor must make the investment and create 10 jobs. Though you do not need to show all the jobs before you file the petition, you must submit a business plan that follows the guidelines of Matter of Ho and convince the officer that the jobs will be created before the end of the two years of conditional residency.

You will need to create a U.S. entity (commercial enterprise) where you will be investing the capital to for EB-5 purposes, and where the requisite minimum jobs will be created. You cannot just "transfer" the business from abroad to the U.S. You, as the investor, will need to risk your own personal funds into the new U.S. entity (not mere transfer of the business from abroad).

Normally you would set up a legal entity in the U.S., obtain an FEIN and then transfer funds.

A direct EB-5 investment is certainly doable. I-526 petitions currently take about two years to process and will not give you any immigration status in the U.S. or employment authorization to run the business in the U.S. A credible EB-5-compliant business plan is also required for direct EB-5 investment that will show at least 10 full-time (at least 35 hours per week) positions will be created by the EB-5 investment. One option is to have a manager-managed LLC set up and have the LLC managed by a work authorized manager, with a principal EB-5 investor being in a policy formulation role to qualify for EB-5. It is highly advisable that you first consider L-1A visa option or E-2 visa option, if eligible, to obtain a non-immigrant visa to the U.S. faster. An E-2 business can be converted to direct EB-5 if properly structured with an experienced immigration attorney.

First of all, in order to qualify through a direct EB-5 investment through your own company, you would want to make sure whether or not your enterprise is in a targeted employment area to determine whether or not you have to make a total investment of $500,000 or $1 million. You also have to show that you have, or are in the process of hiring, 10 full-time U.S. workers. You do not have to complete the investment or the hiring of the U.S. workers at the time you file your initial EB-5 investor petition Form I-526. You would obviously transfer the funds to your U.S. entity that will own and operate your U.S. enterprise.

Making the investment and using those funds are two different things. The best step to take now is retain an EB-5 attorney to help turn that business into an approvable EB-5 project, and get the right team together to prepare all of the required documents.

You have to develop a viable non-immigrant strategy because the direct EB-5 can take over two years to process. We advise you maybe apply for an E-2 first if you from a treaty-eligible country and then we can later convert it to a direct invest case. Also note only about 5 percent of EB-5 cases are direct because the headache of having 10 full-time employees often does not make economic sense. The wages could cost $2 million to $3 million or more.

You first register a company for this U.S. office. Open a bank account under this company, and wire all your investment funding to this account, which is owned by the company. This is only if the company is owned 100 percent by you. If you will not have the control ownership of the company, please contact an attorney for a different route so your investment is not released to the company immediately. You want to protect your interest while the application is still being processed. Please keep good records of the fund transfer. Regarding how much money you need to invest in the business, to qualify for EB-5 the total investment needs to be $1 million or $500,000, depending on where your company will be located. In addition, your U.S. company must create 10 jobs in the future. If in the beginning you do not have enough funding to meet the threshold for the investment visa, but enough funding to get the business up and going, you may be able to first come in with an L-1 intracompany executive visa to get the business running, and later change to EB-1 or EB-5. Your scenario could have variable solutions.

You are asking the right questions but they are difficult to answer in an open forum for general discussion, not meant for individualized legal advice. If you are serious about pursuing an EB-5 visa, schedule a consultation with an attorney.

Your first step I can recommend is to consult with a company that does USCIS-compliant business plans. This is a very important first step, as it will serve as the foundation for your EB-5 application.