EB-5 (Immigrant Investors)

EB-5 (Immigrant Investors)
The fifth employment based preference category was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas are also set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.
 

ELIGIBILITY CRITERIA

General Eligibility Criteria:
• The investor must invest in a new commercial enterprise, which is established or substantially reorganized after November 29, 1990
• The investor must invest at least $1 Million in cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur
• The investment must create at least 10 full-time jobs for qualifying U.S. workers within 2 years of the investor's admission to the US as a Conditional Permanent Resident
• A qualifying employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.

Special Criteria for Troubled Business:
• The investor may be credited with preserving jobs in a troubled business instead of creating jobs
• 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 filing 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.

Special Criteria for Targeted Employment Area (High Unemployment or Rural Area):
• The minimum qualifying investment is reduced to $500,000
• A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate
• A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census

Special Criteria for Regional Center Pilot Program:
• The minimum qualifying investment may be $1 Million or $500,000 depending on the location of the regional center
• The investor does not have to create 10 jobs directly (i.e., to hire 10 full-time US workers), because jobs can be created either directly and/or indirectly
• Indirect jobs refer to jobs induced by the regional center activities and are calculated using statistically valid forecasting models

GENERALLY REQUIRED EVIDENCE

A. I-526 Petition:
• Evidence that you have invested in a new commercial enterprise
• Evidence that you have invested or are in the process of investing the amount required
• Evidence that the investment funds were obtained through lawful means
• Evidence that the new commercial enterprise will create at least 10 full time positions (i.e., Business Plan)
• Evidence that you will be actively involved in the management of the new commercial enterprises

B. I-829 Petition:
• Evidence that the business plan has been carried out
• Evidence that you have invested the total amount of required funds
• Evidence that you have sustained your investment in the new commercial enterprise throughout your two-year    period of conditional permanent residence
• Evidence that 10 full-time jobs have been created

PROCEDURE

 Stage 1: Collecting Evidence        
 Stage 2: Submit I-526 to the USICS        
 Stage 3: File I-485 or Consular process        
 Stage 4: Conditional Approval
 Stage 5: Submit I-829 to USICS
 Stage 6: Final Approval
 
                              
                        

TIME FRAMES

Stage 1 to Stage 2: about 3 months
Stage 2 to Stage 3: about 6-8 months
Stage 3 to Stage 4: about 6-8 months
Stage 4 to Stage 5: 2 years
Stage 5 to Stage 6: about 10-12 months
 

EXCEPTIONS & NOTICE

A. Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, "full-time employment" also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program. After the conditional approval on Stage 4, you will have a temporary green card for two (2) years
B. A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman's compensation and unemployment premiums for the position by the employee
C.Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to: A sole proprietorship, Partnership (whether limited or general), Holding company, Joint venture, Corporation, Business trust or other entity, which may be publicly or privately owned
D.Commercial enterprise does not include noncommercial activity such as owning and operating a personal residence
 

Siyuan Chang