Helping Entrepreneurs Expand Their Businesses to the United States 

 

THE EB-5 FOREIGN INVESTMENT PROGRAM

Queen City Immigration Law assists foreign investors with correctly processing the immigration portion of the EB-5 investment program with US Citizenship and Immigration Services (“USCIS”). The EB-5 Investment Visa is appropriate for high net worth individuals who wish to invest, passively or actively, in the United States and obtain a green card within two years for themselves and their families. The process is not simple and devoted advocacy is essential for taking advantage of the program.

Investors all over the world are getting wind of the EB-5 program, especially in China, which is making it difficult for others to benefit. It is best to begin the process now, in case all the authorizations get used up.
- Sherrod Seward, Esq.

WHAT IS THE EB-5 INVESTMENT VISA?

The EB-5 program is currently the only visa program designed to allow foreign investors to gain permanent residence (a “green card”) in the United States. It requires a minimum investment of $1 million, or $500,000, if the investment is in a rural or targeted high unemployment area where unemployment is 150% of the national average. The investment also must result in the creation of at least 10 jobs.

LIMITED AMOUNT

There are 10,000 EB-5 visas available each Fiscal Year (FY).

QUALIFICATION

To qualify for the EB-5 program, immigrants can invest directly in a job-creating business, or can invest through regional centers approved by USCIS to promote economic growth in designated areas.

If the investor’s initial application is approved, the investor can apply for conditional residence in the United States. Once approved, the conditional residence lasts two years. After two years, the investor can apply to have the conditions removed and have the conditional residency made permanent, but only if the investment has resulted in the creation of a minimum of 10 jobs, as required.

WHAT IS A REGIONAL CENTER?

A regional center is an economic entity, public or private, that promotes economic growth, regional productivity, job creation, and capital investment. To obtain an official “regional center” designation, the entity must submit a proposal to USCIS. For approval and an official “regional center” designation, USCIS requires that the proposal show how the center will promote economic growth in a geographical region within the United States.

Although the designation of regional centers does not imply government endorsement or eliminate or reduce risk, an investor in a regional center project can take advantage of a more expansive concept of job creation, including both “indirect” (jobs created collaterally from EB-5 investment) and “direct” jobs (those jobs created as a direct result of EB-5 invest funds), in order to qualify the applicant for the visa. An example of an indirect job would be any full-time job at a hotel due to a hotel being built through EB-5 investments by a regional center (hired within the two years of the investment).

The regional centers can serve an important role by vetting investors and investment projects to ensure high-quality, long-term job creation. Furthermore, the investors are required to invest $500,000 USD instead of $1,000,000 as passive contributors.

Regional centers are multiplying and have become the predominant vehicle for EB-5 investment. As of January 4, 2016, USCIS has approved approximately 790 regional centers.

STEP 1: FILING PROOF OF THE QUALIFYING INVESTMENT AND SOURCE OF INVESTMENT FUNDS

In order to qualify for a green card through investment, an investor must file Form I-526 (Immigrant Petition by Alien Entrepreneur) with the U.S. Citizenship and Immigration Services (USCIS) with evidence that he or she has invested or has committed to invest equity capital into a commercial enterprise in the United States.

STEP 2: OBTAINING THE TWO-YEAR CONDITIONAL GREEN CARD

Once USCIS has approved the Form I-526 petition, the investor moves on to the second step in the green card process. The second step allows the investor (and the investor's spouse and any unmarried children under the age of 21) to obtain the conditional green card.

STEP 3: OBTAINING PERMANENT RESIDENT STATUS

Prior to the end of the two-year period of the conditional green card, the investor must apply for permanent residence by submitting Form I-829 (Petition by Entrepreneur to Remove Conditions) to USCIS along with evidence that the investor has actually invested the required amount of capital in a commercial enterprise; that the investment was sustained for a two-year period; and that the enterprise created or preserved at least 10 full-time jobs for U.S. workers.

After approval of this step, the investor and family are granted permanent resident status.

OPTIONAL STEP 4: OBTAINING U.S. CITIZENSHIP

On the fifth anniversary of obtaining Conditional Resident status, the investor and family may become eligible to apply for U.S. citizenship.

To become eligible for U.S. citizenship, the investor or family member must maintain his primary residence in the United States for five years, and must be physically present in the United States at least half of the days during this five-year period.

There is no requirement to apply for U.S. citizenship; the immigrant investor or family member may choose to remain in Permanent Resident status indefinitely.

 

E-1: treaty traders

This nonimmigrant classification is for nationals of select countries with which the United States maintains a treaty of commerce and navigation to be admitted to the United States temporarily for the sole purpose of engaging in international trade in goods, services, international banking, insurance, transportation, tourism, and technology. Certain employees of E-1 Treaty Traders, as long as they have the same nationality as their employer, may also be eligible for this classification.

Qualified Treaty Traders and employees are allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted. All E-1 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. An E-1 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.

 

E-2: treaty investors

This nonimmigrant classification is for nationals of select countries with which the United States maintains a treaty of commerce and navigation to be admitted to the United States when investing a substantial amount of capital in an American business to manage and direct such business. Certain employees of E-2 Treaty Investors, as long as they have the same nationality as their employer, may also be eligible for this classification.

Qualified Treaty Investors and employees are allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.