EB-5 Investment Green Card
I. SUMMARY
II. WHAT IS EB-5 CATEGORY?
III. WHO QUALIFIES UNDER EB-5 CATEGORY?
IV. WHAT FORMS DO I USE TO APPLY?
V. FAMILY MEMBERS
VI. FEES TO INS/CONSULATE
VII. PROCEDURE
I. SUMMARY
Every year, America allows 140,000 persons to come to the U.S. on employment-based immigrant visas, which are divided into five categories. Any unused visa numbers are then used in the next visa category down. If there are more qualified applicants in a category than there are available visa numbers, the category is considered "oversubscribed" and the visas are then issued in chronological order in which the petitions were filed. The filing date of the petition becomes the priority date. Your visa cannot be issued until your priority date is current. This may mean that you will have to wait several years before your priority date is reached.
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II. WHAT IS EB-5 CATEGORY?
It is an immigrant visa category allowing you to live and work permanently in the United States based on making investment in the United States enterprise. The required amount of capital is $1,000,000 or $500,000 if the investment is in the targeted employment area. It requires filing of an I-526, Immigrant Petition for Alien Entrepreneur to obtain a conditional Green Card valid for two years. 90 days before the expiration of the Green Card an I-829, Petition by Entrepreneur to Remove Conditions needs to be filed.
III. WHO QUALIFIES UNDER EB-5 CATEGORY?
An applicant in the EB-5 category must meet the following criteria:
A. The applicant must invest or be actively in the process of investing at least $1,000,000.00, investment capital, in the U.S. enterprise or business. ($500,000.00 if the investment is in the targeted employment area);
B. The investment capital, ($1,000,000.00), must be placed at risk for the purpose of generating a return/profit on the investment capital;
C. The investment capital, $1,000,000.00, must have been obtained through lawful means;
D. The investment capital, $1,00,000.00, must benefit the American economy and create 10 or more full-time jobs for American workers;
E. The investment capital must be in a "new commercial enterprise" or a "troubled business"; AND
F. The applicant must be engaged in the management of the enterprise (day-to-day management or policy formulation).
IV. WHAT FORMS DO I USE TO APPLY?
The applicant must submit the following forms and documentation in support of a proper application:
A. FORM I-526: The applicant must file Form I-526, Immigrant Petition by Alien Entrepreneur with the INS.
B. SUPPORTING DOCUMENTATION FOR ALIEN ENTREPRENEUR(Applicant): the following is a description of the type of documentation that must be submitted to for proper documentation of an EB-5 application:
1. Investment: These documents are used to show the investment of capital:
a. Bank statements evidencing the flow of money;
b. Evidence of assets that have been purchased for use in the US enterprise;
c. Evidence of property transferred from abroad for use in the US enterprise
d. Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock;
e. Any loan or mortgage, promissory note, security agreement, or other evidence of borrowing secured by the applicant's assets;
2. Lawful Means: The applicant must show that the investment capital that he is investing was acquired through lawful means. Applicant must submit:
a. Applicant's Foreign business registration records
b. Applicants personal and business tax records for the five years prior to application/investment
c. Documentation of applicants property and/or business sale proceeds
d. Bank statements evidencing applicants income
e. Evidence showing any other source of capital/income
f. Certified copies of any legal action against the applicant within 15 years of application;
3. Job Creation: in the applicant must submit the following documentation to substantiate/establish the job-creation requirement:
a. Copies of relevant tax records
b. Forms I-9, or other similar documentation, if the employees have already been hired; and/or
c. a business plan showing when, in the next two years, such employees will be hired, is that employees have not been already hired.
4. Management of Enterprise: The following documents need to be submitted in order to show that the applicant will be involved in the management of the new U.S. commercial enterprise:
a. A statement of the applicant's position in the new U.S. commercial enterprise and a description of applicant's duties;
b. Evidence that the applicant is a corporate officer or a member of the Board of Directors of the new US enterprise;
c. Evidence that the applicant is engaged in the direct management or policy formulation of the new US enterprise.
5. New Commercial Enterprise: the following are the criteria for a new commercial enterprise:
a. Create an original business (business must be established after 11/29/90); or
b. by and/or reorganize an existing business or company; or
c. Invest in an existing business without re-organizing or reincorporating if the investment of capital result in a substantial change in the business, consisting of at least 40% increase in the net worth of the business or the number of employees or both, so that the new net worth or number of employees or both, amounts to at least 140% of the business' pre-expansion net worth or number of employees.
6. Troubled Business: the following are the criteria if the applicant is investing in a "troubled business”:
a. The business has been in existence for at least two years;
b. The business has incurred a net loss of at least 20% of the company's net worth;
c. The number of employees of the business is or will be maintained at the pre-investment level.
7. High Unemployment Area: To qualify as a business in a high unemployment area, the applicant must submit evidence, if applicable, that applicant's enterprise has been established in a targeted employment area. A targeted employment area is defined as a rural area or an area, which has experienced high unemployment of at least 150 percent of the national average rate. A rural area is an area not within a metropolitan statistical area or not within the outer boundary of any city or town having a population of 20,000 or more.
8. Investment or Pilot Program: In October 1993 the United States Congress approved a Pilot Program for the purpose of attracting foreign investors to invest capital in the U.S. enterprises. Under this program, 3000 visas in this category are set aside for aliens investing in the regional centers designated by the USCIS. Unlike the regular investment where you have to show at least 10 new positions created, the investment through the pilot program allows to create 10 jobs directly or indirectly, through monies generated from increased exports from your new commercial enterprise. The new commercial enterprise does not have to be in the business in generating exports of good or services. The applicant must still meet all of the requirements set forth above for investing in America under this category.
The Applicant's spouse and unmarried children under 21 are admitted under the same classification as the applicant.
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VI. FEES TO INS/CONSULATE
Form I-526
Form I-829 (Click here for Form Filing Fees)
Adjusting fee at consulate to be defined by consulate. There may be other fees that will be determined at the time of filing.
The processing/filing procedure is as follows:
A. Approval of Form I-526, Immigrant Petition for Alien Entrepreneur.
B. Visa Availability: Once I-526 Immigrant Visa Petition is approved by the USCIS, the State Department must give the applicant an immigrant visa number. Visa numbers become available subject to the preference category and priority dates. You can check the status of a visa number in the Department of State's Visa Bulletin.
C. Adjustment of Status/Consulate Processing: If the applicant is already in the United States, he or she must apply to adjust to permanent resident status after a visa number becomes available. If the applicant is outside the United States when an immigrant visa number becomes available, he or she will be notified and must complete the process at his or her local U.S. consulate office.
D. Obtaining a Conditional Green Card (valid for 2 years).
E. Approval of Form I-829, Petition by Entrepreneur to Remove Conditions on a Green Card.
Last Updated on Tuesday, 24 January 2012 14:50