EB5 Summary

 


EB-5 Immigrant Investor

Visa Description

USCIS administers the Immigrant Investor Program, also known as

“EB-5,” 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 also are set aside for investors in Regional

Centers designated by USCIS based on proposals for promoting economic growth.

All EB-5 investors must invest in a new commercial enterprise, which

is a commercial enterprise:

· Established after Nov. 29, 1990, or

· Established on or before Nov. 29, 1990, that is:

1. Purchased and the existing business is restructured or reorganized in

such a way that a new commercial enterprise results, or

2. Expanded through the investment so that a 40-percent increase in

the net worth or number of employees occurs

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

This definition includes a commercial enterprise consisting of a holding

company and its wholly owned subsidiaries, provided that each such

subsidiary is engaged in a for-profit activity formed for the ongoing

conduct of a lawful business.

Note: This definition does not include noncommercial activity such as

owning and operating a personal residence.

Job Creation Requirements

· Create or preserve at least 10 full-time jobs for qualifying U.S. workers

within two years (or under certain circumstances, within a reasonable

time after the two-year period) of the immigrant investor’s admission

to the United States as a Conditional Permanent Resident.

· Create or preserve either direct or indirect jobs:

o Direct jobs are actual identifiable jobs for qualified employees located

within the commercial enterprise into which the EB-5 investor has

directly invested his or her capital.

o Indirect jobs are those jobs shown to have been created collaterally

or as a result of capital invested in a commercial enterprise affiliated

with a regional center by an EB-5 investor. A foreign investor may

only use the indirect job calculation if affiliated with a regional

center.

Note: Investors may only be credited with preserving jobs in a troubled

business.

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 the priority date on 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.

A qualified 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.

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.

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 employer.

Capital Investment Requirements

Capital means cash, equipment, inventory, other tangible property, cash

equivalents and indebtedness secured by assets owned by the alien

entrepreneur, provided that the alien entrepreneur is personally and

primarily liable and that the assets of the new commercial enterprise upon

which the petition is based are not used to secure any of the

indebtedness. All capital shall be valued at fair-market value in United

States dollars. Assets acquired, directly or indirectly, by unlawful means

(such as criminal activities) shall not be considered capital for the

purposes of section 203(b)(5) of the Act.

Note: Investment capital cannot be borrowed.

Required minimum investments are:

· General. The minimum qualifying investment in the United States is $1

million.

· Targeted Employment Area (High Unemployment or Rural Area). The

minimum qualifying investment either within a high-unemployment

area or rural area in the United States is $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.