A Triple Win: The EB-5 Visa Program:
Job Creation, Capital Infusion, and Immigration through Investment
The EB-5 program is congressionally mandated and has been in existence since 1990. Congress intended the program to create jobs for Americans and stimulate investment, at the rate of ten direct jobs per investor family.
Subsequently, a Pilot Program which created the Regional Center concept was passed into law.
The regional center pilot program allows U.S. sponsors to create investment opportunities in which the investor could place their funds. The benefit of this investment opportunity is that the job creation component would become the responsibility of the Regional Center sponsor instead of investors.
In this case, the law allows the sponsor to create ten jobs directly and indirectly within a prescribed geographic area known as census tracts.
The word „directly‟ implies that the U.S. employee hired by the Regional Center will be working full time for 35 hours per week and that a W2 form, demonstrating the employee‟s income, will be filed with the Internal Revenue Service.
The word „indirect‟ or „induced‟ refers to those jobs which are „deemed‟ to have been created in the community as a direct stimulus result of the new Regional Center.
All businesses must have been created after 1990. Thus, while each investor family must generate ten jobs for US residents or citizens, the direct and indirect jobs may be combined in order to meet the requisite total. The job creation component is established pursuant to an economic model which is developed by qualified economists and submitted to the United States Citizenship and Immigration Service (USCIS) as part of the application for regional center designation.
It is clear that the EB-5 program has had a checkered history, among which there were minor setbacks along the way. However, through legislation enacted in 2001, Congress demonstrated that it wanted to ensure the preservation of the EB-5 program through an increased structural approach. Since then, the program has demonstrated a greater level of security, although the program does require, intrinsically, that each investment carry an investment „risk‟.
What is this risk?
First, the investor must assess and determine the financial risk of the project. Second, he must ensure that the documentation and approvals at both the USCIS and consular levels are met. Third, initially the investor will only be receiving a two year conditional residency.
Ultimately, this will translate into permanent residency status only when the sponsor creates the project and can prove that the jobs necessary to the lifting of the conditional status have been created (a total of ten direct and indirect jobs per investor).
That being said, the future of the EB 5 program is very promising. An increasing amount of people are aware of its existence, its utility, and its benefits. The number of investors signing up with responsible and viable regional centers is continuing to grow as they view the program as a fast track to US residency wrapped in a valuable investment.
More politicians and economic development officers understand the nuances of the program which has now created thousands of jobs and generated billions of dollars into the US economy.
The eb5 pilot program is a logical and natural win/win platform for the U.S. economy, U.S. sponsors, and foreign investors.
The EB-5 Investor Visa
In 1990, Congress created the EB-5 program to benefit the U.S. economy by attracting investments from qualified foreign investors. Under this program, each investor is required to demonstrate that at least 10 new jobs were created or saved as a result of the EB-5 investment, which have a requirement of a minimum $1 million, or $500,000 if the funds are invested in certain high-unemployment or rural areas.
In 1992, Congress increased the economy impact of the EB-5 program by permitting the designation of Regional Centers to pool EB-5 Capital from multiple foreign investors for investment in USCIS approved economic development projects within a delimited geographic region.
More than 25 countries, including Australia and the United Kingdom, use similar programs to attract foreign investments. The U.S. program is more demanding than many others, requiring substantial risk for investors in terms of both their financial investment and immigration status.
As a general rule, you may obtain a permanent resident status (also known as green card) through the EB-5 visa if you fulfill two major requirements:
– an investment of $1 million of legally obtained capital in a commercial enterprise in the U.S., and
– create 10 jobs for U.S. workers.
As mentioned before, the “investment” requirement can sometimes be lower. For instance, if you invest through a “Regional Center” or within a “Targeted Employment Area,” then the investment requirement is only $500,000. (“Targeted Employment Areas” include “rural areas” or “high unemployment area”).
In general, the EB-5 visa has the following advantages over employment-based green card options and achievement-based green card options:
– Does not require a PERM labor certification. That is, there is no need to show there is a shortage of U.S. workers to perform your job.
– Does not require a permanent job offer in the United States. In comparison, if you instead use the more common business-related green card category, EB-1C Multinational Executives or Managers (which is the “permanent” version of the L-1A Multinational Executives or Managers nonimmigrant visa), you have to prove that you have a permanent job offer.
– Does not require you to maintain your existing home-country business. If you want to abandon your business operations outside the United States, you can shut down those operations and still obtain your green card in the United States. (You should always check with your immigration lawyer before shutting down your overseas business, though.) In comparison, under the EB-1C Multinational Executives or Managers green card option, you must maintain your business operations in your home country throughout the green card application process.
– Does not require Extraordinary Ability (or “national interest” level achievements) in business. You need to demonstrate to have $1 million in legitimately obtained money to invest in the United States.
From Past to Present: EB-5 Legislation
The EB-5 program is the result of a legislative effort to promote job creation and the infusion of foreign capital into the U.S. economy.
This structure was developed during a time when the U.S. economy was thriving and represented an underlying promise of continued strength.
However, this writing, in light of the restricted credit market and elevated unemployment rate, it is evident that the U.S. is in the midst of tumultuous economic times.
Unlike the financial strength that the U.S. exuded at the time that the EB-5 program was enacted, a new source of capital investment received through foreign investors, which will result in the development of numerous new employment opportunities for Americans, provides a promising opportunity for growth and redevelopment across the nation.
The EB-5 program provides a glimpse of hope to political leaders, developers, U.S. workers, and foreign investors alike.
It has taken many years to improve and enhance the benefits of the EB-5 program in order to ensure that it meets its goals and the expectations of its beneficiaries.
The USCIS is actively engaged in the process and works diligently to continuously modify its regulations.
Together, with the various regional centers across the U.S., the USCIS is expanding its knowledge through the daily successes and challenges of the program.
Although Congress has extended the program numerous times, at present the EB-5 program is scheduled to sunset on September 30, 2012, Congress now understands that to ensure its continued success the program must receive a permanent extension to guarantee the security of duration and consistency.
This permanent extension is contemplated in the Comprehensive Immigration Reform Bill of 2010.
The Role of Governmental Agencies in the EB-5 Program
The organizational structure of the EB-5 program can be quite complex.
Let‟s take this time to clarify the various US governmental agencies associated with the program.
To begin with, there is the United States Citizenship and Immigration Service or USCIS, which is at the forefront of the EB-5 field. This agency is charged with the review and approval of all regional centers across the United States from its headquarters in Laguna Niguel, California.
It is also responsible for the review and determination of all petitions for conditional residency with the filing of a form called the I-526-Immigration Petition by Alien Entrepreneur.
This essential, yet seemingly simple form will be discussed in future chapters.
Upon receiving regional center designation, a regional center agrees to abide by the regulations governing the program, and verifies such compliance in their annual compliance report.
This annual report is submitted to and reviewed by the USCIS. Upon submitting the I-829 petition, requesting the lifting of conditional residency, the USCIS is also responsible for determining the legitimacy of the application.
As you can see, USCIS oversees the entire EB-5 Visa process.
Therefore, it is imperative for you, as a sponsor or investor, to be well organized throughout the process right from the beginning. Please consider acquiring a large three ring binder with many transparency pages to contain all of your U.S. immigration documents and receipts.
You will receive many documents from your attorney and from the government; therefore it is essential that you maintain all records in a sensible and organized manner.
Keep a list of each and every document, receipt or instruction you receive as it is easy to get confused with the multitude of documents and legal complexities.
The other government agency that you, as an investor, will need to address is the U.S. State Department.
This agency will review the individual immigrant investor application and assess whether there is any basis for inadmissibility.
There are various reasons to support a rejection of the application which include but are not limited to: prior criminal record, fraud convictions, etc.
Thus, while an approval of the I-526 application is laudatory, it is not the final step until the State Department issues its sealed envelope of approval.
Following the State Department‟s approval, the investor and his or her family will physically enter the US and will be inspected at a port of entry.
This inspection is conducted by the Department of Homeland Security. An officer will review the approval notice and stamp, an approval called an I-551, to ensure and date the formal entry into the U.S.
Once the new resident has been admitted, he or she will undertake all normal internal applications with which a U.S. resident must comply. These include but are not limited to acquiring: a U.S. social security number from the Social Security Administration, a driver‟s license from the Department of Motor Vehicles of the State in which he or she will live with his or her family, and we also recommend a state identification document.
Adjustment of Status Eb-5 Investors
Some EB-5 investors who are in lawful non-immigrant status will elect to remain in the United States and conclude their process while there.
As such, along with the approval of the I-526, the investor will file the adjustment of status, an application for work authorization, and an advanced parole application to allow for foreign travel, while the case is pending with USCIS for six month duration.
This process is repeated simultaneously for the investor‟s dependents.
An adjustment of status may culminate in an interview at the USCIS office where the investor non-immigrant is residing. Occasionally, there may not be an interview.
Nonetheless, the investor will receive a Welcome
Notice by mail assuring the investor that he or she has been approved.
NOTE that individual „welcome‟ letters are sent to each and every family member including the minor dependents as a separate file, known as an “A” or „alien‟ file, will have been created for the life of the applicant.
This number will follow the applicant in each phase of their immigration life in the U.S., progressing from conditional residency, to full residency, and ultimately citizenship.
In matters where the family may be separated due to circumstances, the principal investor must first be conferred with conditional residency.
The dependents may then apply as „follow to join‟ relatives.
Although this process can be accomplished in the consulate or embassy in the home country, it is a long and tedious process to follow.