Let''s say hypothetically our company already located an interested EB-5 direct investor overseas. To create a new commercial enterprise, our company will set up a new LLC entity (a subsidiary to the parent company). Since the investor must invest into the new commercial enterprise before filing the I-526, when should the NCE (LLC) be registered? Should it be established with the EB-5 investor? Or can the investor can be added as a member manager after the LLC has already been registered?
There is no requirement that an EB-5 investor be a member of an NCE (LLC) upon its establishment/registration. An EB-5 investor may make a capital contribution into an existing LLC and become an LLC member at a later time, but prior to I-526 filing.
The investors will transfer their personal investments funds to the new commercial enterprise (which may be a LLC ) when the investor signs the subscription agreement.
According to the law, an EB-5 investor does not need to "establish" the NCE, which means that he/she can join the NCE at a later time. But, the newly injected EB-5 funds must create 10 additional jobs.
There is a fair amount of flexibility for EB-5 infrastructure, but consult with an EB-5 attorney who can assist you on the finer details of the structures and timelines. Your "hypothetical" seems promising, but further review would be needed.
The establishment of a new commercial enterprise may occur with or without the EB-5 investor. There is no requirement that the EB-5 investor be involved in the establishment of the NCE. The EB-5 investor may be added as a member, limited partner or other owner/shareholder at a later time, but before the I-526 is filed.
For EB-5 purposes, a foreign investor does not have to be the founding member of a New Commercial Enterprise or NCE as it is commonly called. In the example of a Limited Liability Corporation commonly known as LLC, the investor can become a member either at the time of LLC registration or afterwards, so long as the corporate documentation identifies all the shareholders and specify the percentage for the investor. Regardless of the timing, there should be a subscription agreement or investment agreement when the investor commits to the NCE.
The investor can be added after the LLC has been registered.
Yes - it can be established with the new investor coming in. So long as the company is formed by the time the I-526 is filed - USCIS will accept it. USCIS will also accept the investor coming in after the NCE is formed; however, the EB-5 then becomes "acquisition of an existing business" which has a higher and more difficult standard. I suggest you form the NCE with the investor''s capital.
Either scenario would work; you may want to talk to an accountant about the tax basis issues.
