EB-5 Investor Visa: Who Qualifies?

By investing $1 million in creating a new U.S. business that employs ten workers, you may qualify for a U.S. green card.

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Like many countries, the U.S. provides a means of entry for wealthy people who will pump money into its economy. (See the Immigration and Nationality Act, at I.N.A. § 203(b)(5),8 U.S.C. § 1153(b)(5).) This is known as the employment Fifth Preference or EB-5 immigrant visa (which allows permanent residence immediately upon entry to the U.S.). However, applicants for a U.S. green card based on investment must not only invest between $500,000 and $1million in a U.S. business, they must take an active role in that business (though they don’t need to control it).

Green cards for investors are limited in number, to 10,000 per year. Of these, 3,000 are reserved for investors in rural areas or areas of high unemployment. If more than 10,000 people were to apply per year, you would be placed on a waiting list based on your Priority Date (the day you filed the first portion of your application).

But don’t worry yet: This 10,000 limit has never been reached. What’s more, only principal applicants are counted toward the 10,000 limit. Accompanying relatives are not. Therefore, many more than 10,000 people per year can be admitted with EB-5 green cards.

Get a lawyer for this visa! If you can afford an investment-based green card, you can afford the services of a high-quality immigration lawyer. The EB-5 category is one of the most difficult categories under which to establish eligibility, and absolutely the most expensive. It is well worth paying for legal advice before taking any significant steps toward applying for this visa. If you try the application once on your own and fail, you may damage your chances of success in the future. What’s more, because you are expected to make the investment first, and apply for the green card later, you could waste a lot of money.

Pluses and Minuses of an EB-5 Green Card

Here are some of the advantages and limitations to an investment-based green card:

  • USCIS rejects many more applications than it accepts in this category. That is partly because the eligibility requirements are narrow, and partly because of the category’s history of fraud and misuse. Some lawyers counsel their clients to use their wealth to fit themselves into another category with a greater chance of success. For example, by investing in a company outside the United States that has a U.S. affiliate, the person might qualify to immigrate as a transferring executive or manager (priority worker, in category EB-1).
  • As long as you have money to invest and can demonstrate that you are in the process of investing it in a for-profit business, you yourself do not need to have any particular business training or experience. Nor does the law restrict entry to applicants from certain countries, although the immigration authorities are more suspicious when dealing with applicants from countries that have exhibited a pattern of fraudulent applications.
  • You can choose to invest your money in a business anywhere in the U.S., so long as you maintain your investment for at least three years and are actively engaged with the company you invest in.
  • After approximately the first three years, you can work for another company or not work at all.
  • You must actually live in the United States -- you may not use the green card only for work and travel purposes.
  • Your spouse and unmarried children under the age of 21 can get green cards as accompanying relatives.
  • Your green card will initially be only conditional -- that is, it will expire in two years, after which you will need to apply to renew it and make it permanent.
  • As with all green cards, yours can be taken away if you misuse it. For example, you live outside the U.S. for too long, commit a crime, or even fail to advise the immigration authorities of your change of address, you may become deportable. However, if you keep your green card for five years and live in the U.S. continuously during that time (counting your two years as a conditional resident), you can apply for U.S. citizenship.

Are You Eligible for a Green Card Through Investment?

Green cards through investment are available to someone who invests a minimum of $1 million in creating a new U.S. business or restructuring or expanding one that already exists.

Where you got the money in the first place does not matter. Gifts and inheritances, for example, are fine. The key is that you obtained the money lawfully.

The required dollar amount of the investment may be reduced to $500,000 under certain circumstances, described in, “When $500,000 Is Enough to Get an Investment-Based Green Card (EB-5).“

USCIS also has the authority to require a greater amount of investment than $1million. This may occur when the investor chooses to locate the business in an area that’s doing well economically, with low unemployment. At present, USCIS policy is to not raise dollar investment requirements on this basis.

The business in which you invest must employ at least ten full-time workers (not counting independent contractors), produce a service or product, and benefit the U.S. economy. Full-time employment is defined as requiring at least 35 hours of service per week.

The investor, his or her spouse, and any children may not be counted among the ten employees. Other family members may be counted, however. The ten workers do not necessarily have to be U.S. citizens, but they must have more than a temporary (nonimmigrant) U.S. visa. Green card holders and any other foreign nationals who have the legal right to indefinitely live and work in the U.S. can all be counted toward the required ten.

It’s also important to realize that you won’t be able to send the money, sit back, and await your green card. The investor must be actively engaged in the company, either in a managerial or a policy-forming role. (See the Code of Federal Regulations at 8 C.F.R. § 204.6(j)(5).) Passive investments, such as land speculation, do not ordinarily qualify you for a green card in this category—except under a temporary program described in “When $500,000 Is Enough to Get an Investment-Based Green Card (EB-5)”.

The investment must be made in a new commercial enterprise. You can either create an original business, buy a business that was established after November 29, 1990, or buy a business and restructure or reorganize it so that a new business entity is formed.

There are two exceptions to the rule that the investment must be in a “new” commercial enterprise. The first exception is that you can buy an existing business and expand it. You would need to increase either the number of employees or the net worth of the business by at least 40%. You would also need to make the full required investment ($1 million or $500,000 depending on location) and you would still need to show that your investment created at least ten full-time jobs for U.S. workers.

The second exception to the “new” commercial enterprise rule is that you can buy a troubled business and save it from going under. To do this, you would need to show that the business has been around for at least two years and has had an annual loss of 20% of the company’s net worth at some point over the 24 months leading up to the purchase. You must still invest the full required amount, but you are not required to show that you created ten jobs. Instead, you would need to show that for two years from the date of purchase, you employed at least as many people as were employed at the time of the investment.

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