What are the implications for my business if I take EB-5 investment money?

Prior to going further, be ready to petition for EB-5 for the investor. In addition, if both of you eventually want to pursue EB-5, you must meet the basic requirements for EB-5 investments, such as putting together a Matter of Ho-compliant business plan. Depending on where the business is located, the foreign investor must also invest at least $500,000 or $1 million in the business and the business must create at least 10 jobs within two years of the investment. Advisably, before proceeding further in this venture, consult an EB-5 attorney on how to properly put this idea into a good business venture and in compliance with the EB-5 rules.

The business must have 10 or more full-time employees within the required time frame. Also, the investment of the EB-5 investor must remain invested in the business throughout the foreign national investor&#39s EB-5 immigration process.

Your business would first have to meet the EB-5 criteria in order to enroll in the EB-5 program.

EB-5 funds must be used for job-creation purposes, i.e., creating a minimum 10 full-time (at least 35 hours/week) positions. This must be proven at the stage when an EB-5 investor files his or her Form I-829 (removal of temporary two-year condition on his or her green card). It is highly advisable that you work with an experienced EB-5 immigration attorney and business attorney to properly structure agreements.

Just as with any other investor, the terms and conditions will be determined by the agreements signed by the parties (investment agreement, operating agreement, etc.) In that respect, EB-5 is no different. The EB-5 investor will need to meet the documentary requirements regarding investment source, investment amount, investment risk, and job creation by providing documentary evidence to USCIS and filing an I-526 petition.

In order for the EB-5 investor to proceed with this EB-5 processing, the business needs to provide evidence of at least 10 jobs created, requisite minimum capital invested. It also needs to show that the business is a valid, functioning, money-making business, and that he will be an active member of the business (either in the daily operations or as a limited liability partner with a say in policy, etc.).

First, investing in an existing business, as opposed to a new commercial enterprise, is very difficult. You need to first consult with a specialist because if they invest and the green card is not approved, they are likely to come after you for the return of the money. The key is your investment has to prove new jobs have been created.

In brief, to implement the BP as presented to USCIS, not change locations for a period of time, lots of recordkeeping, FT hiring of at least 10 qualifying employees and whatever other contractual obligations you enter into with the investor. Get an attorney to represent you (a different attorney from the one your investor will hire).

There should be no negative implications for your business to accept EB-5 investment money, provided that any legal representation you make to your prospective investor as to his eligibility for qualifying under the EB-5 program is adequate. You would want to make sure that the minimum investment funds are available, that there is a local source of those funds, that if the investor is not investing at least $1 million your project is located in a targeted employment area (TEA), that the investor is going to invest at least $500,000 and, most important, that as a result of the investment you will be able to show that you have been able to create 10 new jobs for U.S. workers. You obviously should work with appropriate legal counsel that is normally an experienced immigration lawyer but also has significant experience in representing EB-5 investors and, if available, is board certified in immigration and nationality law in the state where he or she practices law.

You will need to use the funds for job-creating purposes and create at least 10 full-time jobs for U.S. citizens or permanent residents. Otherwise, you just need to be a lawful, for-profit enterprise.

The biggest implication is maintaining 10 full-time employees whether or not you need them. If it is an investment in a targeted employment area, then you will also have to prove that the jobs have been created in a targeted employment area.

Your business and the immigration derived from an investment by an EB-5 petitioner are two separate matters. As such, only the investor needs to be concerned with how the investment pans out (i.e., creating the jobs, keeping the investment at-risk). As the business owner with no immigration benefit attached to the company, you are bound by the applicable state and federal corporate laws.

Your investor will have to play some role in the management of the business. And it will have to hire 10 more employees. Then it should work.

There is no business implication if you take on an EB-5 investor. He is like any other investor that you may take, on and you owe a fiduciary duty to that investor. The only difference is that for the EB-5 investor, your business in which he invests must create 10-plus full-time and permanent jobs for him to get the immigration benefits. The business must maintain careful records to make sure that his immigration benefits could be protected at the time of filing the I-829 removal of condition application several years later.

The main implications relate to whether the investment and structure of the business will work for USCIS. The investor must be coming to develop and direct the business, so you need documents to do that. They are often structured as a limited partnership, but this should be discussed with both a business and immigration attorney. The investor&#39s source of funds must be shown to be lawfully sourced from inception and your documents would need to include whether funds will be returned to the investor if the I-526 is not approved. Furthermore, the detailed business plan must show that 10 full-time jobs will be created for U.S. citizens, permanent residents or persons lawfully authorized to work permanently with two to three years.