Congress created the employment-based fifth preference (EB-5) immigrant visa category in 1990 for immigrants seeking to enter the U.S. to engage in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. The basic amount required to invest is $1 million, although that amount may be $500,000 if the investment is made in a ‘targeted employment area.’ Of the 10,000 visas available for this preference category each year, 3,000 are reserved for entrepreneurs who invest in targeted employment areas.
The statutory requirements of the EB5 Green Card category are difficult. At most only about 1,000 people a year have immigrated in this category, just one-tenth of the visas available. It is estimated that USCIS approves only about 15 percent of EB5 Green Card petitions.
To qualify under the EB 5 Green Card category, the new enterprise must:
- Be one in which the person has invested (or is in the process of investing) at least $1 million (or at least $500,000 if investing in a ‘targeted employment area,’) after November 29, 1990
- Benefit the U.S. economy; and
- Create full-time employment for at least 10 U.S. workers.
- Moreover, the investor must have at least a policy-making role in the enterprise.
Outside of the investment and employment requisites, the statute does not specifically address who may be a qualified applicant for the green card through investment. The USCIS has precluded corporate or other non individual investors from this category. However, two or more individuals may join to make an EB 5 investment. A single ‘new commercial enterprise’ may be used for investor/employment-creation classification by more than one investor, provided that:
- Each petitioning investor has invested (or is actively in the process of investing) the required amount; and
- Each investment results in the creation of at least 10 full-time positions for qualifying employees
|Q: Roger, a citizen of Singapore, wishes to establish a business in the US, and wants to use that business to secure a green card. He has $600,000 from his existing business that he can invest and can secure an additional $300,000 to $500,000 if necessary. He has looked at a specialty molding manufacturing mill in Washington state that is in economic trouble. They have lost money over the last 3 years and are close to filing for bankruptcy. They need an infusion of capital to stay open. The mill currently employs 45 people, and located in a rural part of the state.
Will an investment in the mill meet the requirements for Roger to get a green card as an investor.
||A: Yes. The mill qualifies as a troubled business, it has lost over 20% in value over the last 24 months. Roger just has to purchase the business and maintain the same number of employees to qualify. In addition, since the mill is located in a rural area, a p population of less than 20,000 persons, it qualifies as a targeted area. Depending on the unemployment rate in the area it may also qualify based on that factor. Because the new business is in a targeted area Roger will only have to put a minimum of $500,000 into the business to qualify.|
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The New Commercial Enterprise
There are two basic requirements for showing a new commercial enterprise. First, the enterprise must be ‘new,’ i.e., formed after November 29, 1990. Second, it must be a ‘commercial’ enterprise. Any for-profit entity formed for the ongoing conduct of lawful business may serve as a commercial enterprise. This includes sole proprietorships, partnerships (whether limited or general), holding companies, joint ventures, corporations, business trusts, or other entities publicly or privately owned. However, the term ‘new commercial enterprise’ does not include noncommercial activity, such as owning and operating a personal residence or nonprofit enterprise.
- Creating an Original Business — In 2002 Congress eliminated the ‘establishment’ requirement for EB5 investment based green card. Instead of proving that they have ‘established’ a commercial enterprise themselves, investors now need only show that they have ‘invested’ in a commercial enterprise.
- Buying an Existing Business — By reorganizing or restructuring an existing business, an investor may create a ‘new commercial enterprise’ and therefore qualify for a visa. The statute and regulations provide little insight into what degree of restructuring or reorganization must be done to establish a new enterprise. The AAO has held that simply changing the legal form of the enterprise does not satisfy this requirement.
Regardless of the forms used to create a new enterprise, the focus of the law is on the creation of at least 10 new employment opportunities. Investments creating a new enterprise but failing to create 10 new jobs will also fail to qualify for EB-5 classification.
- Expanding an Existing Business — An investor can also create a new enterprise by expanding an existing business. Only an expansion resulting in an increase of at least 40 per cent in the net worth of the business or in the number of employees of the business will satisfy the visa requirements. This could require the investor to create more than 10 new jobs to qualify for a visa.
The larger the business that the investor expands, the more onerous his or her burden to qualify for a visa under this standard. However, an investor need not show that his or her investment alone caused the 40 per cent increase.
- Pooling Arrangements — The regulations specifically allow immigrant investors to pool their investments with others seeking EB5 investor visa. Each investor is required to invest the applicable statutory amount. All of the new jobs created by the new commercial enterprise will be allocated among those within the pool seeking permanent investor visas.
Benefiting the U.S. Economy
The statute requires that investments ‘benefit the U.S. economy’ to qualify the investor for an EB5 Green Card visa or status. The statute provides no guidance on which investments benefit the economy. This silence means USCIS adjudicators are left to their subjective interpretations of the investment and its relative benefits when reviewing the petition.
Arguably, the petitioner has benefited the economy by merely meeting the employment and investment requirements of the visa classification. However, because the statute specifically identifies the ‘benefit’ element as distinct from other components of the visa, it appears that the applicant must independently show that the enterprise, in the conduct of its business, will benefit the U.S. economy.
Therefore, a consulting firm exclusively serving customers abroad with no return benefit to the U.S. economy (other than employing the requisite number of workers), might not support an EB5 Green Card petition. In contrast, showing that the new enterprise provides goods or services to U.S. markets should satisfy this requirement.
Creating or Saving Jobs
To qualify for EB5 Green Card, an investment normally must create full-time employment for at least 10 U.S. citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the U.S. Neither the investor nor the investor’s spouse and children count toward the 10-employee minimum. Nonimmigrants are also excluded from the count. The ‘other immigrants’ provision means that conditional residents, temporary residents, asylees, refugees, and recipients of suspension of deportation or cancellation of removal may all be considered employees for EB5 purposes.
The regulations define an ‘employee’ for EB5 purposes as an individual who provides services or labor for the new commercial enterprise and receives wages or other remuneration directly from the new commercial enterprise. This definition excludes independent contractors.
- The Types of Jobs — The jobs created must be full-time. This means employment of a qualified employee in a position that requires a minimum of 35 working hours per week, regardless of who fills the position. Job-sharing arrangements, where two or more qualifying employees share a full-time position, will also serve as full-time employment if the hourly requirement per week is met. Job-sharing does not include combinations of part-time positions even if when combined such positions meet the hourly requirement per week.
- Where the Jobs Must be Located — When enacting the EB5 program, Congress took an affirmative step toward creating jobs in the geographic areas that need them most. The statute sets aside 3,000 of the approximately 10,000 EB-5 investor visas available annually for foreign citizens who invest in ‘targeted employment areas.’ The statute defines a ‘targeted employment area’ as a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.
- When the Jobs Must Exist — The law is unclear about when new jobs must exist. The statutory language is prospective and therefore does not require jobs to exist at the time of initial investment or before the I-526 petition is filed.
A petitioner may support a petition with a comprehensive business plan demonstrating a need for at least 10 employees within the next two years. The business plan need only indicate the approximate dates during the following two years when the employees will be hired. The temporary vacancy of a position during the two-year conditional period does not disqualify an investor, as long as good-faith attempts to re-staff the position are made.
The EB5 Green Card is one of the most complicated categories in immigration law. Moreover, the four 1998 precedent AAO decisions and subsequent nonprecedent decisions have made it even harder to obtain approvals of EB5 petitions. Investors must discard normal investment opportunities in favor of investments structured to meet the unrealistic requirements of the precedent decisions. In many cases it may be more practicable for investors to come to the U.S. through other visa categories such as the E-2 investor, L-1 intra company transferee, or EB-1-3 multinational executive or manager routes.
Contact VisaPro if you have any questions regarding any type of employment based petitions. Our experienced attorneys will be happy to assist you.
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