EB-5 Visas

The United States has a long history of welcoming foreign entrepreneurs and investors who are poised to help improve the country’s economy and contribute to its workforce. One way for foreign investors and entrepreneurs to obtain U.S. permanent residence through a green card is by participating in one of the EB-5 immigrant investor programs. If you are interested in using this option to come to Wisconsin, the skilled immigration attorneys at Attorney Spiros Stavros Nicolet are happy to assist you in investigating and completing the required steps. Spiro Nicolet has the experience needed to resolve the complex issues that may arise in this area of law.

This investor visa program is called the EB-5 program because it is classified as the fifth preference in the employment-based immigration categories. A foreign investor seeking this status does not need a U.S. employer to sponsor him or her but can complete the process independently. There are three main requirements that you must meet to qualify for the program.

First, you must invest the required minimum amount of either $1 million or $500,000 into a new commercial enterprise that performs for-profit activity. The business must have been established after November 29, 1990, unless the investment is used to restructure the enterprise in a way that results in a new commercial enterprise, or unless the investment expands the enterprise to result in a 40% increase in its net worth or number of employees.

To qualify for the reduced $500,000 threshold, the foreign investor must direct the funds into a commercial enterprise that is located in a Targeted Employment Area (TEA). A TEA may be a geographic location that, at the time the investor makes the investment, is experiencing an unemployment rate that is at least 150% of the national average. It also can be a geographical location that, at the time of the investment, qualifies as a rural area, meaning that it is outside a designated metropolitan statistical area or outside any city or town that has a population of 20,000 people or more.

The second important requirement consists of creating at least 10 full-time jobs for U.S. workers. Full-time means at least 35 hours per week, and U.S. workers means citizens or green card holders. Members of the investor’s family who are employed by the enterprise do not count towards meeting the requirement. Applicants must show that the jobs were created within two years of making the investment. In most circumstances, only “direct” jobs will be taken into account for purposes of meeting this requirement. Direct jobs are those that can be specifically traced to the investment in the enterprise.

However, indirect jobs created as a result of the investment may also be taken into account if the investment is made into a Regional Center. This is a geographic location in the U.S. that the federal government has pre-approved for EB-5 economic activity and investment. Many investors prefer to invest into Regional Centers because many centers are located in TEAs, and therefore the required investment is the lower $500,000 amount. However, an investor must get approval from the Regional Center before he or she can invest into it.

Finally, the investor must take an active role in the enterprise in order to qualify for the EB-5 program, such as by performing managerial duties or engaging in policy formation for the enterprise. Typically, this requirement is met by making the applicant a limited partner in a limited partnership enterprise.

Foreign investors seeking an EB-5 visa must submit an I-526 Petition to U.S. Citizenship and Immigration Services (USCIS). A USCIS officer will review the petition and decide whether the investor qualifies for the program.

The I-526 Petition must demonstrate that the investor meets the three criteria outlined above, but it also must provide proof that the investment funds were derived from a lawful source, such as savings from business income or other investments, mortgages, or even a gift from a family member. If the investment funds were gifted, the investor must show that the person who provided the gift derived the funds from a lawful source. The purpose of this evidence is to prove to USCIS that no criminal laws were broken in order to make the EB-5 investment. Additionally, the I-526 Petition must include information and evidence regarding the commercial enterprise itself, such as business plans, business formation documents, brochures, pamphlets, press releases, and business licenses.

The investor must pay USCIS a filing fee of $1,500 for USCIS to review the application. At that stage, one of three outcomes could occur. First, the officer can approve the petition. Second, the officer may issue a Request for Evidence (RFE) and ask for additional explanations regarding specific aspects of the application. The RFE will set a deadline for receiving the information needed to make its final decision. Finally, the officer could simply deny the application. This is rare because USCIS typically sends an RFE if the documents are lacking in some way.

Along with its general requirements and petition process, there are other important points to consider when deciding whether to apply for the EB-5 program. For instance, the U.S. government only allows 10,000 investors to receive green cards each year, and of this amount 3,000 are allocated for those who invest in TEAs. While this ceiling has never been reached, it has been getting close recently, so the annual cap may be something to keep in mind when planning your immigration strategy.

A benefit for the EB-5 program is that the investor’s spouse and unmarried children who are under 21 may receive their own green cards as derivative beneficiaries of the investor’s I-526 Petition.

A possible disadvantage to the EB-5 program is that the green card given to the investor and family is not truly permanent but merely conditional. Two years after the investor receives the green card, he or she must file an I-829 Petition with USCIS to remove the conditions and receive the permanent green card. The I-829 Petition requires the investor to prove to USCIS that the job creation requirement has been met and that the investment has been sustained.

It should also be pointed out that the investor and family must live in the U.S. after receiving their green cards. Therefore, if an investor is not ready to relocate permanently to the U.S., the EB-5 program may not be the best option at this time.

The preparation and submission of the I-526 Petition requires careful attention and a thorough familiarity with complex immigration laws and regulations. For these reasons, foreign investors hopeful of starting a business in the Wisconsin area should contact an immigration attorney to assist them with their application. Arrange a consultation with Spiro Nicolet at Attorney Spiros Stavros Nicolet by calling 773-562-6884 or contacting us online.