EB-5 immigrant investor visa

OVERVIEW

The Employment Based Fifth Preference category of immigrant visas (commonly referred to as EB-5) provides a mechanism to obtain Permanent Residence (green card) in the United States through varying types of investments.  The green card eligibility depends on the type, purpose, and amount of investment made by the investor, as well as how the investor obtained the investment funds.  Ozisik PLLC is experienced in assisting clients in understanding the options and requirements of various EB-5 investments and partnering with our clients to help them achieve their immigration goals.

EB-5 INVESTMENT OPTIONS

There are four paths a foreign investor may take to seek a green card through the EB-5 program.

  • Creating a new business
  • Expanding an existing business
  • Investing in a troubled business
  • Investing in a Regional Center

CREATING A NEW BUSINESS

To secure a green card through the creation of a new business, there are specific criteria that the investor must satisfied.  Specifically:

  • The Investor must be in the process of investing at least $1,000,000* in the United States, OR
  • Must be in the process of investing at least $500,000* if the enterprise is located in a Targeted Employment Area (TEA)
  • The new business should benefit the U.S. economy by providing goods or services to U.S. markets
  • Create 10 full-time jobs for qualified U.S. employees
  • The investor must be involved in the day-to-day management or in policy-making for the business

EXPENDING AN EXISTING BUSINESS

A foreign investor’s infusion of capital into an existing U.S. business must meet the following requirements to be considered an eligible investment for EB-5 purposes:

  • The Investor must be in the process of investing at least $1,000,000 in the United States, OR
  • Must be in the process of investing at least $500,000 if the enterprise is located in a Targeted Employment Area (TEA)

In addition, the investment must either:

  • Increase the capital of the enterprise by 40%, or
  • Increase the employment base by 40% (with a minimum of 10 additional workers)
    And the investor must be involved in the day-to-day management or in policy-making for the business

INVESTING IN A TROUBLED BUSINESS

An investment into an enterprise that meets the following criteria may qualify as an EB-5 investment under the troubled business provision:

  • The Investor must be in the process of investing at least $1,000,000 in the United States, OR
  • Must be in the process of investing at least $500,000 if the enterprise is located in a Targeted Employment Area (TEA)
  • The business enterprise must have existed for two years
  • The business enterprise must have incurred a net loss for the 12 to 24-month period prior to submitting an I-526 application
  • This net loss must be at least 20% of the business’ net worth before the loss was incurred
  • Once the investment is made, the enterprise must maintain the pre-investment level of employment for at least two years
  • The investor must be involved in the day-to-day management or policy making for the business

REGIONAL CENTER INVESTMENTS

A Regional Center is any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.

Regional Centers are usually located within a TEA, which permits the Investor to invest $500,000 as opposed to $1,000,000.  To date, USCIS has approved approximately 800 Regional Centers.  The Regional Center program is set to expire on September 30, 2016 and though an extension of the program is expected, there are likely to be major reforms, including the methodology to determine TEA’s and administrative/reporting requirements for the Center administrators.

TARGETED EMPLOYMENT AREA (TEA)

A Targeted Employment Area is defined as a rural area or an area that has experienced high unemployment of at least 150% of the national average.

There are many nuances for foreign investors to consider when deciding on which EB-5 process is most suitable to their situation and goals.  The EB-5 area is a fluid and ever changing area of immigration law and requires a thoughtful approach be pursuing.  Ozisik PLLC is here to help our clients navigate this complex environment.

**The investment thresholds remain at $1,000,000 for the traditional EB-5 investment and at $500,000 for TEA investments.  The U.S. Senate introduced S. 1501 in June 2015 which would increase those amount to $1.2 million and $800,000