The EB-5 visa, created by Section 203(b)(5) of the U.S. Immigration Act of 1990, was established to attract foreign capital and create U.S. jobs by providing a method of obtaining a Green Card for foreign nationals who invest either $1,000,000 generally or at least $500,000 in a “Targeted Employment Area.” Under the program, immigrants are granted conditional residence, and after two years, permanent residence status, if they invest in a commercial enterprise that will benefit the U.S. economy.
Per USCIS, 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
In addition to the above, there are also specific job creation requirements. The EB-5 investor must:
– 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:
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. 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.
Finally, in addition to the above, there are also other restrictions on what types of businesses that qualify for EB-5 investment, as well as capital investment requirements. Since this is a very complex process, it is recommended that you consult an attorney if you are a foreign national seeking to make a major investment in the US.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.
