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When should I designate a local representative for my direct EB-5 business?

I want to acquire a business in the U.S. and expand it to make it an eligible EB-5 direct investment project. Now I just have a B1/B2 visa. I am talking with a potential business but the owner is worried that my current status might cause issues with the deal. He suggested that I should hire a local representative for the acquisition. I know that normally direct EB-5 investors hire local managers to operate the business once the EB-5 application is submitted. But should I hire one at such an early stage? I have not done anything to prepare for the filing of an I-526 yet.

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    You can file a direct EB-5 petition. However, under a visitor's status, you cannot operate or manage the EB-5 business until you obtain conditional permanent residency status, which may take 24 months plus or minus. You may contemplate having a conditional management contract with a potential experienced manager to be employed on the condition that the business you are contemplating is purchased.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    First, if you intend to purchase an existing business, you must either create 10 new full-time positions (at least 35 hours a week) or satisfy the troubled business rule or business expansion rule to qualify for an EB-5 visa. You should also ensure you conduct due diligence to acquire an existing business. Best option may be to establish a new business rather than invest in a preexisting business. Aside from that, you may qualify for an EB-5 visa if you engage in a policy formulation role with an active manager running the business who is employment authorized in the U.S. Please hire a business attorney, an EB-5 immigration attorney and EB-5 business plan writer to achieve your goals.

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    Stephen Berman

    Immigration Attorney
    Answered on

    I could not give any business advice.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    This is, of course, a purely business decision. First and foremost, you should evaluate the business. You should also hire an EB-5 attorney, business plan writer, sooner than later, to make sure that you know what it will take to make the business EB-5 compliant. At the end of the analysis, you might conclude that while the business is attractive as is, it might not make sense as an EB-5 venture due to the expansion you will need to make, the number of new jobs you will need to create. Once you have completed all that due diligence by all means go ahead and hire someone to manage the business after you have taken ownership of it. Rather than wait for the EB-5 application submission, I would think you need to hire the person or persons for that matter right away once you have made an investment commitment and have equity in the business even if you have not fully funded the equity yet. You have not asked this question so I assume you know the answer. Nevertheless, I will state it anyway. Make sure not to work in the enterprise with a B1/B2 visa. That would put all your immigration goals at jeopardy.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    I am not understanding what you are proposing. Your investment must be directly into the enterprise.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You can purchase a business but not run it on a B-1 business visitor visa. Please be careful with acquiring existing businesses, unless they are troubled businesses losing money, in which case you need to be even more careful. The 40 percent rule requires 40% increase either in the net worth, or in the number of employees, so that the new net worth or the number of employees amounts to at least 140 percent of the pre-expansion net worth or number of employees, which is hard to meet. It appears that regardless of satisfying the 40% rule, you also seem to need to add at least 10 new workers. I advise clients to seriously consider starting a new business rather than purchasing an existing business.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    It would depend on the comfort of the business owner to deal with a foreign national who they cannot have any recourse if the deal does not go as planned or agreed. You may wish to have a legal representative to get the deal done and then hire an operational manager to take care of a day-to-day management after the acquisition. All this is technically a business corporate decision separate from the EB-5 process. However, if you wish the business to be formed with EB-5 compliance and filing in mind, you may wish to work with an EB-5 counsel and business plan writer early to make sure that everything will gel together for business and EB-5 success. I have seen too many people who wanted to do direct EB-5 failing because their business was not set up with EB-5 compliance in mind and then later forcing it to make it into EB-5 business.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    It is advisable you should hire a local representative, but also an EB-5 attorney as well, to help evaluate, guide and ensure that the business in question can fulfill the requirements for EB-5. In fact, a due diligence evaluation of the business for EB-5 investment should be first done before the business is purchased. Upon completion of the evaluation, that is when you should prepare for the purchase of the business and filing of an I-526 petition.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    This is largely a business and personal decision. From an immigration standpoint, everything can be done remotely but it will certainly make your life easier to have a local rep that can manage business documents etc. If you have someone you trust, hiring them as soon as possible will make the process easier for you. Note that acquiring an existing business carries a greater burden on the document production for EB-5. Make sure you get detailed docs, current jobs and finances so you can establish your baseline.

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    Charles Foster

    Immigration Attorney
    Answered on

    Whether you need to require a local representative for the acquisition is purely a business decision. Clearly, once you acquire the business, you''re not eligible to work per se in the business in B-1, B-2 non-immigrant visa status. Your admission is limited to six months and you may or may not be able to obtain a six-month extension. As a practical matter, if you acquire the business and you need to manage same, you will have to have not so much as a representative but a key employee who would take on the responsibilities of the current owner/manager. I do not believe it''s necessary to hire until such time as you acquire managerial and sufficient interest in the business that you have managerial control and responsibility for the business. That''s a completely separate question from when you file your EB-5 Investor Petition on Form I-526.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    It is problematic to use an existing business as a vehicle for an EB-5 investment.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    After you have invested and or acquired the business, you will need to hire a manager to run/operate the business since you will not be able to work on a B-1/B-2. You will not need to hire a local manager until then.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    From an immigration perspective, anything you can do to avoid work or employment in the U.S. is key. Going beyond basic business setup or signing agreements would be an issue, so it may not be too early to get a U.S. representative.

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