Every year, Congress offers 10,000 immigrant visas to qualifying foreign investors, in exchange for their capital contributions to new commercial enterprises. Aimed at stimulating economic activity and promoting job growth, the United States Citizenship and Immigration Services (USCIS) has opened its doors with this Employment Based Fifth Preference Category (EB-5) visa, to eligible investors depending on the type, purpose, and amount of capital they are willing to provide. In one category, a successful application requires evidence of a qualifying investment of $1 million, made in a new, commercial enterprise in the U.S. by an individual, and evidence of at least 10 jobs created and other significant growth that has resulted from that investment.
Alternatively, 5,000 visas are carved out for investors who are given ample opportunities to invest their money in pre-approved programs in Regional Centers where the minimum investment is reduced to $500,000. These centers seek to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment. Individual entrepreneurs investing $1 million must demonstrate individual control of the funds invested, active investment, active management of the U.S. enterprise and investment of at least the statutory amount within a two-year conditional residence period. In particular, the investment must create 10 new full-time jobs for U.S. workers. In the case of Regional Center investments on the other hand, the job creation may be indirect and there need not be active management of the enterprise by the foreign investor. Most importantly, with both applications, investors must prove that the funds used to invest were obtained legally. This is oftentimes the most difficult hurdle to overcome.
USCIS determines whether the investor qualifies for the EB-5 visa by adjudicating an application filed on Form I-526. USCIS adjudication includes a detailed review of the sources of the investor’s funds, his family history, and other representations of the investor head of household and includes visas for his spouse and children under the age of 21. In all EB-5 cases, qualified investors receive a conditional green card valid for two years. At the end of that time the investor files another application on Form I-829 with USCIS showing that his money was “at risk” during the two-year period of conditional residency and that the jobs have been created in order to obtain permanent residence. Immigration Services will also review the Regional Center, whether it is still engaged in the same activity as when it was first created, etc. to remove the condition to the residence status and issue a full 10-year green card.
In recent years, the EB-5 program has evolved from relative obscurity to an unprecedented surge in popularity, with local companies seeking to infuse their latest projects with foreign capital, and wealthy investors seeking admittance into the U.S. without the need for approval of a prior offer of employment, as required by most visa classifications based on job offers. Notably, because the available quota has never been reached, eligible investors need not undergo delay caused by backlogged quotas based on job offers by U.S. employers, or, petitions filed by close American relatives.
However, despite the current availability of EB-5 visas, regulatory limitations and a series of onerously restrictive interpretations imposed by Immigration Services have made this application process increasingly complex. The rules for EB-5 investor visa classification can be the most difficult to comply with anywhere in U.S. immigration and naturalization law. In 2012, while approval rates remained steady at approximately 92% for all I-829 applications, the approval rates for previously filed I-526 applications fell down to 79%. Many of these initial pitfalls can be avoided, and it is strongly recommended that competent legal counsel with extensive experience in EB-5 regulations, policy and adjudications be engaged before commencing an application under EB-5 Immigrant Investor Program.
At Wildes & Weinberg P.C., we encourage investors to consult with our firm, recognized for its successful aid to clients in proving their financial reliability and project sustainability in their applications through expertise guidance from our EB5 lawyers. With assistance from our experienced EB5 attorneys, we:
By using an EB-5 visa, foreign entrepreneurs can comprehensively structure, document and evaluate approved investment programs; and be well on their way to gaining lawful U.S. residency and financial success amidst the growing number of diverse businesses currently in great need of secure investment capital.
For additional information regarding the investor visa process, please click here.
At Wildes & Weinberg, we have an excellent record in both stages of the investor visa process. If you are an investor seeking permanent residence in the United States, please contact Managing Partner Michael Wildes at Michael@wildeslaw.com for further information.
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