Investors who wish to obtain a green card through the EB-5 visa program need to take several steps, including selecting a project and making the necessary investment. Once that is done, they must file Form I-526, Immigration Petition for Alien Entrepreneur, and provide supporting documentation to USCIS, the United States Citizenship and Immigration Services. USCIS then evaluates and adjudicates I-526 petitions based on several criteria related to the EB-5 visa program’s requirements, which are as follows:
1. Investment in a New Commercial Enterprise
EB-5 investors must demonstrate that they invested in a new commercial enterprise. This means that the enterprise must have been established after November 29, 1990, and formed for the ongoing conduct of lawful business. It can take various forms, including a partnership, joint venture, sole proprietorship, holding company, business trust, corporation, or other privately or publicly owned entities. The definition also includes a commercial enterprise, which is a holding company and its wholly-owned subsidiaries engaged in a for-profit activity formed for the ongoing conduct of lawful business. In the case of a regional center, the new commercial enterprise is the fund where the investor invests, often in the form of a limited partnership or limited liability company. In a direct, non-regional center context, the new commercial enterprise is the business where the investor invests, creating jobs for U.S. workers.
2. Investment of the Requisite Amount of Capital
Investors who wish to obtain a green card through the EB-5 visa program must prove that they have invested the required amount of capital in a new commercial enterprise. To satisfy this requirement, the petitioner must provide evidence that they have invested at least $800,000 or $1.05 million, depending on the location of the project or NCE. If the project is located in a targeted employment area, then the minimum investment is $800,000. If the project is outside of a targeted employment area, the minimum investment amount is $1.05 million.
It is essential that the investor’s funds are irrevocably committed to the enterprise, and they must be “at risk” and utilized by the new commercial enterprise to generate employment opportunities. The funds must be invested in a manner that reflects a genuine intention to promote economic growth and job creation in the United States. This means that the investor must have no guarantee of a return on their investment, and the investment must be made with the primary objective of generating a profit for the new commercial enterprise.
3. Lawful Source of Capital
In order to invest in the EB-5 visa program, an investor must demonstrate that their funds were earned lawfully. The source of the funds must be fully documented, and it must be demonstrated that the entire investment amount of either $800,000 or $1.05 million was acquired from a lawful source. Common sources of funds include salary earnings, distributions from businesses or investments, sale of property, mortgage of personal assets owned by the investor, or gifts from third parties. If the investor has received a gift, the gift-giver must also fully trace their funds that ultimately became the investment. It is important to note that funds earned or obtained in the United States while the investor was out of status are not deemed to be lawfully acquired. Therefore, it is crucial for investors to demonstrate that their funds were obtained legally in order to be eligible for the EB-5 program.
4. Investor Engagement in the New Commercial Enterprise
To be eligible for the EB-5 visa, investors are expected to be involved in the new commercial enterprise either through day-to-day management or by assisting in the formulation of the enterprise’s business policy. Here are some more details:
- In the regional center context, investors in an EB-5 enterprise organized as a limited partnership usually have the rights and duties accorded to limited partners under the state’s Limited Partnership Act. This level of involvement is sufficient for EB-5 purposes.
- The same is true for a limited liability company.
- In the direct investment context, the investor can be more actively engaged by managing the enterprise or formulating policy for the business by acting as a member of the Board of Directors or exercising voting control over the business or by providing input on corporate business decisions
The level of involvement required depends on the type of entity the investor invests in. Limited partners or members of limited liability companies have a more passive role, while direct investors can be more actively engaged in the business.
5. Job Creation
The requirement for job creation is a crucial aspect of the EB-5 program for investors seeking permanent residency in the United States. To qualify for the program, a new commercial enterprise must create a minimum of 10 full-time positions for qualifying employees for each EB-5 investor.
In the direct investment context, the 10 full-time jobs created must be permanent and for W-2 employees of the new commercial enterprise, working at least 35 hours per week. However, this definition excludes the EB-5 investor, their family (spouse and children under the age of 21), or any nonimmigrant alien. In case the positions are not yet created at the time of the I-526 petition, the comprehensive business plan must provide a detailed description of the hiring plan, demonstrating the positions that will be created and when they will be filled.
In the regional center context, the petition must show that the new commercial enterprise will create full-time positions for at least 10 persons, either directly or indirectly, through revenues generated from regional center projects. The calculation of indirect jobs created through an EB-5 investor’s capital investment is based on a business plan and a detailed economic analysis. The economic report must provide evidence that 10 indirect jobs will be created for each investor in the project.
Therefore, to meet the employment creation requirement of the EB-5 program, it is crucial for investors to ensure that the new commercial enterprise will create a sufficient number of full-time positions for qualifying employees, either directly or indirectly. A comprehensive business plan and an economic report must be provided to demonstrate that the new enterprise will meet the statutory employment creation requirement.