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International investors seeking to move permanently to the U.S. may be able to do so through the EB-5 visa program. This program, which was created in 1990 to help stimulate the U.S. economy, gives investors a conditional green card if they contribute between $500,000 and $1,000,000 toward a new commercial enterprise which creates or preserves 10 qualifying full-time jobs.

How does the program work?

An EB-5 investor is required to invest in and manage a “new” commercial enterprise (established after Nov. 29, 1990). The enterprise can be any business entity, such as a sole proprietorship, an LLC or a holding company. The business must have been formed in order to conduct ongoing, lawful, for-profit business activity.

The required investment is typically $1,000,000, which can be made in cash, equipment, inventory, tangible property, cash equivalents or debt instruments as long as the investor is personally and primarily liable and the commercial enterprise is not used to secure any indebtedness. Capital is valued based on the U.S. fair-market value.

If the investment is targeted toward a high-unemployment or rural area, the required investment is only $500,000. A high-unemployment area is one which, at the time of the investment, has experienced unemployment of at least 150 percent of the national average. A rural area is one outside of any metropolitan statistical area or any city or town with a population of 20,000 or more based on the most recent census.

The investment must be sufficient to create full-time positions for at least 10 qualifying employees:

  • For new commercial enterprises outside regional centers, these full-time positions must be created directly, with the enterprise or its wholly-owned subsidiaries acting as employer of the qualifying employees.
  • For new commercial enterprises within regional centers, the positions may be created either directly or indirectly. (Direct jobs are those involving employer-employee relationships with the enterprise, while indirect jobs are those created at other organizations as a result of the enterprise.)
  • If the enterprise is a troubled business, the EB-5 investor need only show that the number of employees will be maintained at existing levels for at least two years due to the enterprise. A troubled business is one that has been in existence for at least two years and has incurred a net loss during the 12- to 24-month period corresponding to the priority date on the investor’s Form I-526.

Qualifying employees, for these purposes, include U.S. citizens, permanent residents and immigrants authorized to work in the U.S. It does not include the EB-5 investor, their spouse or children.

A full-time position is one requiring a minimum of 35 working hours per week. It can also include a job-sharing arrangement where two employees share the same full-time job. It does not include combinations of part-time positions or any temporary, seasonal or transient positions.

How do I apply?

First, you will need to file Form I-526, “Immigrant Petition by Alien Entrepreneur.” Once that has been approved, you will file either:

  • Form I-485, “Application to Register Permanent Residence or Adjust Status” (for those already in the U.S.)
  • Form DS-260, “Application for Immigrant Visa and Alien Registration” (for those abroad who are seeking admission to the U.S.)

Upon the approval of your I-485 or DS-260, you, your spouse and minor children under 21 will be granted conditional permanent residence (a green card) for two years. Within 90 days of the expiration date, you will then need to file Form I-829, “Petition by Entrepreneur to Remove Conditions on Permanent Resident Status.” Once the U.S. Citizenship and Immigration Services approves this petition, the conditions are removed and you, your spouse and dependents will be a lawful permanent resident (green card holder).

If you are interested in an EB-5 investor visa, contact Yew Immigration Law Group. We have years of experience helping EB-5 investors ensure they file properly and meet all the criteria for investor visas.

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