The United States offers numerous routes to citizenship for foreign nationals with certain qualifications that benefit the nation. Among the most enticing options is the EB-5 Immigrant Investor Program, also known as the “Fifth Preference EB-5,” which gives foreign investors the opportunity to invest in the world’s largest economy while receiving a Green Card for themselves and their immediate families.
Like most visas, the EB-5 Visa has complex criteria and requirements to qualify, in addition to being subject to frequent regulatory changes that can be hard to keep up with. That is why every Immigration Lawyer at Jurado & Associates, P.A. stays up to date on the latest strategies and developments to help better your chances of approval.
The EB-5 Immigrant Investor Program: An Overview
The EB-5 Visa was established by Congress in 1990 as part of a major overhaul of the U.S. immigration system. its explicit purpose to incentivize “foreign investments and economic growth” that will benefit American communities and workers. Hence it is one of the few immigrant visas directly targeted commercial investors and entrepreneurs.
Unlike the E-2 Treaty Investor Visa, with which it is often confused, the EB-5 Visa allows an “Immigrant Investor”—as well as their spouse and minor children—to obtain legal permanent residence upon approval (i.e., a Green Card).
By contrast, the E-2 Visa is a “nonimmigrant” classification, meaning E-2 Treaty Investors must eventually leave the U.S. once their investment activities are complete.
Moreover, while E-2 Visa is only available to citizens of certain “treaty countries,” the EB-5 Visa is available to foreign national who meet its requirements.
Jurado & Associates will work closely with you to determine which of these investment visas is right for you. However, if you are seeking an opportunity to live in the U.S. indefinitely, and to have the option of eventually applying for American citizenship, the EB-5 Visa is well worth considering.
Qualifying for the EB-5 Visa
In common with other immigration visas, the EB-5 Immigrant Investor Program has several statutory requirements pertaining to both the applicant and their activities in the U.S. Each requirement has its own guidelines and legal definitions that must be carefully parsed and complied with—terms like “capital” or “commercial enterprise” have specific meanings for EB-5 purposes.
It is also crucial to bear in mind that EB-5 regulations are subject to change at both the executive and legislative level, making it imperative that you consult with one of our Immigration Attorneys to learn the latest developments.
First, you must invest capital in a new for-profit commercial enterprise. Capital is defined as cash, equipment, inventory, tangible property, cash equivalents, and asset-secured indebtedness that are directly owned and controlled by you. The assets you plan to invest cannot be used to secure a debt.
Like any bona fide investor, you must be personally and primarily liable for your investment, i.e., there is a risk you lose some or all your money should the commercial endeavor fail. You must also prove that your investment capital is lawfully acquired and owned, which usually means supplying extensive paperwork regarding the source of this income, your financial records and accounts, and even documentation from your country’s tax authorities.
The EB-5 Immigrant Investor Program currently has a minimum capital requirement of $1 million. However, this requirement is halved to $500,000 if the investment is made in a “Targeted Employment Area” (TEA), which is either a rural area or an area with an unemployment rate 150% the national average. The onus is on you to prove that the commercial enterprise you plan to invest is in a TEA.
Again, it is crucial to remember that these requirements change all the time. In March 11 2022, the minimum amount of capital was increased to $1.05 million, while the investment in a TEA was subsequently raised to $800,000.
The EB-5 defines a commercial enterprise as any for-profit entity established to conduct ongoing lawful business in the U.S. In other words, it must be an active, profit-generating endeavor engaged in providing a good or service. There are almost no restrictions on the type of business structure the EB-5 enterprise can take, and the entity can be private or public. Even holding companies are permitted so long as their subsidiaries are wholly owned and meet the criteria of a commercial enterprise.
The commercial enterprise must have been established after November 29, 1990. However, if it was established on or before that date, it may still qualify if the investment:
- Restructures the enterprise to such an extent that it effectively results in a new enterprise.
- Leads to a 40 percent increase in either the net worth of the enterprise or number of workers.
Fortunately, Jurado & Associates also provides experienced Business Law Attorneys who can help you choose, establish, and maintain the ideal business structure for your purposes.
Second, you must prove your investment will directly create 10 full-time jobs in the U.S. specifically, the jobs must be at least 35 hours a week and exist for no less than two years. Thus, employment that is seasonal, temporary, intermittent, or transient will not past muster.
The 10 full-time workers must be directly employed by the commercial enterprise, i.e., no contractors or “indirect” jobs generated by vendors or customers to the enterprise. The two exceptions are:
- If the commercial enterprise is at least two years old and “troubled,” meaning it has suffered a net loss of 20 percent or more during the 12- or 24-month period before the priority date of the EB-5 application. In this instance, you only need to show that the existing number of employees will be maintained for at least two years.
- If the commercial enterprise is in a “Regional Center”—an area designated by the federal government to promote investment and economic growth. You can then include full-time jobs that indirectly created by the commercial enterprise’s activities.
Note that only U.S. citizens, lawful permanent residents, or immigrants authorized to work (such as other EB Visa categories) count towards this requirement. This excludes you, your spouse and children, undocumented immigrants, or those with nonimmigrant status (such as H-1B).
Contact a Jurado & Associates Immigration Attorney Today
Even this brief overview should make clear that the EB-5 Visa is among the most complex, yet rewarding, options for obtaining a Green Card. You will be expected to provide all the relevant evidence, documentation, and information needed to meet this complex, ever-changing requirements.
Fortunately, our experienced immigration attorneys specialize in several visas, including the EB-5, and has a successfully track record for helping our clients succeed. With our up-to-date knowledge of the law and extensive experience in relevant areas such as business law, we can help you navigate the multitude of legal and technical requirements necessary to acquire the EB-5 Visa. To learn more or schedule a consultation, call (305) 921-0976 or email [email protected].