Congress created the fifth employment-based preference (EB-5) immigrant visa category in 1990 for immigrants seeking to enter to engage in a 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.” The state government may designate a particular geographic or political subdivision as an area of high unemployment (at least 150 percent of the national average rate). Of the approximately 10,000 numbers available for this preference each year, 3,000 are reserved for entrepreneurs who invest in targeted employment areas.
A separate allocation of 3,000 visas is set aside for entrepreneurs who immigrate through a regional center pilot program. A USCIS-designated “Regional Center” is an entity, organization or agency that has been approved as such by the Service:
- Focuses on a specific geographic area within the United States; and,
- Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
Click here for a List of all approved EB-5 regional centers as of July 2009.
General Eligibility Requirements
To qualify under the EB-5 category, the new enterprise must: (1) 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; (2) benefit the U.S. economy; and(3) 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.
A foreign national must:
- Demonstrate that a “qualified investment” (see below) is being made in a new commercial enterprise located within an approved Regional Center; and,
- Show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.
Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested — or are actively in the process of investing — the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.
In general, “eligible individuals” include those:
- Who establish a new commercial enterprise by:
- creating an original business;
- purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or
- expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and
- Who have invested — or who are actively in the process of investing — in a new commercial enterprise:
- at least $1,000,000, or
- at least $500,000 where the investment is being made in a “targeted employment area,” which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area as designated by OMB; and
- Whose engagement in a new commercial enterprise will benefit the United States economy and:
- create full-time employment for not fewer than 10 qualified individuals; or
- maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a “troubled business,” which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.
Requirements for Investment through Regional Centers
Investment through a regional center does not require that the immigrant investor’s enterprise itself employ 10 U.S. workers. Instead, it is enough if 10 or more jobs will be created directly or indirectly as a result of the investment. This program also differs from the regular EB-5 provisions in that it permits private and governmental agencies to be certified as regional centers if they meet certain criteria.
Although there are a total of 10,000 immigrant visas per year in this EB-5 category, in Fiscal Year 2005, only 346 people, including derivatives, immigrated in this category. In Fiscal Year 2006, the number increased to 749 and in Fiscal Year 2007, it increased again to 806.
Indeed, there are several critical statutory requirements that need the close attention of an experienced immigration attorney: Requirements under the regular program vs. the “regional center” or “pilot program”; understanding who is a “qualified immigrant”; what is a “new commercial enterprise” which involves the possibility of creating an original business, expanding an existing business, and/or pooling arrangements; ensuring that you are properly “engaging” the enterprise; understanding what the terminology under the Immigration & Nationality Act to ensure that you are indeed “investing” or “actively in the process of investing” “capital,” meeting the requirement of “benefiting” the U.S. economy, “creating” or “saving” jobs, “capitalization,” legal acquisition of capital, “troubled business,” “managerial capacity of the investor,” the designation of a high unemployment area and removing the conditions on lawful permanent residence.
If you have any questions, you should contact Immigration Solutions Group by clicking here for an appointment.