Introduction
Obtaining an EB-5 visa requires that the immigrant investor comply with the following threshold requirements:
Invest $1 million (or $500,000 if investment will go to a "Target Employment Area") or be actively in the process of investing this amount of money;
Prove that the investment must be "at risk," which means, among other things, that the investor has limited control over the funds;
Prove that the capital investment was obtained through lawful means;
Prove that the investment will create ten full-time jobs for U.S. workers;
Prove that the investor will maintain some management-type of control of the new commercial enterprise (such as by being a limited partner, etc.).
Each of these basic requirements will be discussed below.
Investment amount
Currently the requirement investment amount is $1 million per investor. The investment amount decreases to $500,000 if the investment is made in either a new enterprise or Regional Center in an area of high unemployment called a Target Employment Area ("TEA"). A TEA is defined as a rural area or area experiencing unemployment of at least 150% of the national average rate. Some states, including Washington State, have designated TEAs, so in these states it is relatively easy to know whether the investment must be $1 million or $500,000.
Investment "At Risk"
The investor must prove that her investment is capital that is "at risk" for the purpose of generating a return on that capital. An "investment" is defined as a contribution of capital. Debt financing does not constitute an investment. "Capital" can include cash (or equivalents), equipment, inventory, tangible property, or certain promissory notes.
The investor must have committed to invest the requisite amount of money. A mere intent to invest will not suffice. Proving the commitment may entail providing bank statements which show the deposit of money into the enterprise's business accounts, evidence of purchases, etc. Proving that the investment is "at risk" should be done meticulously. This requirement is often the most difficult to prove.
Capital Obtained Through Lawful Means
Capital may have been acquired through any lawful means, including gift, inheritance, and loans. Business tax returns for the past five years should be submitted with an EB-5 application for an investor with a new commercial enterprise, including an investor on E-2 status who has maintained a business in the U.S. since obtaining such status and who wishes to apply for EB-5 and adjust status in the U.S.
Job Creation
Each investor must prove that her investment will create ten full-time jobs for qualified U.S. workers (citizens, permanent residents, or those with valid U.S. work authorization). Evidencing this requirement entails, at a minimum, providing a comprehensive business plan along with the EB-5 petition. The business plan must demonstrate how the job creation requirement will be satisfied, including the organizational structure and a timeline on hiring the workers. If the business existed prior to the EB-5 petition, other requirements must be submitted such as the workers' I-9s and copies of their pay stubs.
Managerial Control
Managerial control may come in the form of day-to-day managerial control or policy forumulation. This requirement may be met by submitting the Corporate formation documents, Limited Partnership Agreement or Operating Agreement, which proves that the investor is a corporate officer or holds a seat on the board of directors, etc. Limited Partnerships are a good option to maintain managerial control, as limited partners are sufficiently engaged in the policy making of the new enterprise as long as she has been vested the rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act.
Conclusion
Each of these requirements entails much more information than this article has supplied. For a more detailed analysis of whether you qualify for the EB-5 investment visa, speak to an immigration attorney who practices in EB-5 matters.
Genesis Law Firm, PLLC
2918 Colby Avenue #211
Everett, WA 98201
Toll Free: (866) 631-0028
Local: (425) 212-1789
http://www.genesislawfirm.com
Everett EB-5 Lawyer
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