The EB-5 visa is an employment creation visa available to investors. This visa program grants conditional residency to persons who invest certain sums of money into new commercial enterprises that substantially create at least ten full-time jobs. The investor must take part in the day-to-day management or policy formation of the new commercial enterprise. A certain amount of these visas are set aside for investors who are willing to invest in Targeted Employment Areas (“TEA’s”), which is defined as either a rural area or an area of high unemployment. Those looking to make investments into TEA’s have to meet a lower minimum investment than those looking to invest in new commercial enterprises outside of TEA’s.
The processing times for EB-5 visas depend on the investor’s country of citizenship. For example, potential investors from mainland China may have to face processing times as long as five years. Once an EB-5 visa is approved, the applicant is granted a conditional permanent residence. To remove the conditions to his or her permanent residence, the applicant must file a request to remove the conditions ninety days before the second anniversary of the applicant’s anniversary on which they were granted conditional permanent residence.
Starting November 21, 2019, new regulations governing EB-5 visas will come into effect. Under the new regulations, the minimum investment has been increased from $1,000,000 to $1,800,000 for investments into commercial enterprises outside of a TEA and from $500,000 to $900,000 for investments into commercial enterprises within a TEA. The new regulations also allow applicants to retain the priority date of a previously properly filed application so applicants no longer have to experience the long processing times for a second time. Further, individual states no longer have the authority to designate TEA’s, as the new regulations have placed that authority with USCIS and the Department of Homeland Security.
You, your spouse and unmarried children under the age of 21 all get green cards (i.e. legal permanent residence). There is a limit of five children (adopted children do count toward this total). You have the freedom to live, work, and retire anywhere in the United States.
Your children will pay the same tuition rate as U.S. residents for school.
You may choose to become a U.S. Citizen five years after you received your conditional green card. A citizen is different from a permanent resident. As a citizen, you will have the right to vote and to be elected. Second, you may bring your parents and siblings to the US by sponsoring their immigration visa. Third and last, while you cannot lose your citizenship except in extraordinary circumstances like a felony conviction, it is possible to lose your permanent residency in the following situations:
– If a permanent resident moves to another country with the intent to live there permanently;
– If permanent resident stays outside the United States for more than one year, but has not applied for a re-entry permit or a returning resident visa, or has stayed outside the United States after the re-entry permit expired;
– If the permanent resident doesn’t file income tax returns when he or she is outside the United States;
– If you declare a nonimmigrant status on federal documents;
– If you are involved in fraud or false claims when you file your application for permanent residence or naturalization;
– If you are convicted of a crime involving narcotics, murder, or money laundering, helping others enter US unlawfully, or have a communicable disease, etc.
Once you become a permanent resident cardholder, the U.S. government will request that you file tax returns for your income, including foreign income. This could result in double taxation. However, the tax that investors file to other countries discharge a portion of the tax needs to be paid in America. Therefore, you will pay less tax in USA than countries such as China unless the cardholder’s main investment is in the USA. Explanation: It does not matter how long you have stayed outside of the US, you must file tax return as green card holders. Tax returns must be filed before April 15 every year.
Besides the minimum investment requirements of either $1 million or $500,000, investors get their EB-5 visa by establishing a new commercial enterprise (already done if you are investing in a regional center), investing the requisite capital amount, proving the investment comes from a lawful source of funds, demonstrating that the investor is actively participating in the business, and creating the requisite number of jobs. An extremely important part of the process is that the investor must prove that the source of investment funds is from a legal source. A legal source could come from income or it could come from dividends from a stock, gifts, or inheritance. Loans also qualify if structured in the correct way.
Job creation requirements: The investor must create 10 full-time jobs directly (indirect jobs count if you are investing in a regional center). Each full-time employee must work at least 35 hours per week. Family members and nonimmigrant workers do not count toward the job count. The two-year job requirement commences six months after USCIS adjudicates the Form I-526. In other words, the investor must hire and maintain 10 jobs within six months after approval of Form I-526.
Risk: There are many advertisements about 0 percent risk on EB-5 projects. However, the truth is that the federal government actually specifically requires the EB-5 visa investment to be “at risk.” If you choose to invest in a guaranteed return project or 0 percent risk project, your EB-5 investment visa application will be denied. Instead you can choose to invest in lower risk projects, with lower rates of return. This is a conservative way to manage your investment fund, and help your application get approved. Our firm has access to financial advisors who can assist you in choosing the best project for your needs.
Loan-based investment: This type of EB-5 investment means that the investor invests $500,000 into the EB-5 project, and the rate of return is the interest rate (usually between 1 percent and 4 percent). The loan-based type of EB-5 investment significantly decreases the risk because the investor is considered a creditor and in the event that a project actually does go sour or declares bankruptcy, these investors are usually the very first people to get their investments back. Moreover, loan type investment has a clear exit strategy. When the loan reaches the maturity date, which is usually set after five years from the initial EB-5 investment, you the investor are entitled to your principal investment money back. This creates a limited partnership relationship between investors and lenders (EB-5 investors) who loan money to borrowers (private company, public company, and city).
Equity-based investment: This type of EB-5 investment means that you invest $500,000 into a project or business as a shareholder who takes ownership of the project or business. EB-5 investors and the regional center form a limited partnership. However, the exit strategy for this type of EB-5 investment is not always clear, so the investor should be careful and understand when they are permitted to exit the investment. If the EB-5 investors want to maintain the share, they can stay with the project. If EB-5 investors want to sell the shares, they can typically sell the shares to open market. Sometimes investors are given complete ownership of the project. For example, a project might simply give the investor keys to their apartment building investment after the vesting period of five years.
1.) Hire us as your attorney: Sign a retainer agreement so that we can be your representative through the entire EB-5 investor visa process.
2.) Pick an investment project: If you are investing through a regional center, you must choose a project that is credible and suitable for you. We work with a financial planner who can assist you with the pros and cons of investing in each project. The regional center will issue their documents, including a partnership agreement, subscription agreement, marketing materials, and a business plan. As your legal representative, we will review the documents.
3.) Sign your agreement: After you choose a project under a regional center, you will sign the partnership agreement and other necessary documents between you and the regional center.
4.) Deposit the investment fund into Escrow Account: After the contract/agreement is signed, the investor deposits the investment monies of $500,000 into an escrow account set up by the regional center. The funds remain in the escrow account until your initial I-526 application is decided. If the application is approved, the funds will be wired from the escrow fund to the project itself. If the application is denied, the funds will be returned to your bank account.
5.) Prepare your source of funds documentation: You will need to provide documentary evidence of where the investment money came from and that the source of funds is legal. Depending on the country where the investor is from, this part of the process is not always transparent and certain countries do not keep accurate records of certain documents such as deeds, income statements, and other important documents to prove legal source of funds. We have experience dealing with these issues and will work with you to resolve such issues.
6.) File the EB-5 investment application (I-526): We will prepare your application and supporting documents. It usually takes about six months to get the decision. Sometimes the government requires more documents, and it will take additional time. If the investor’s application is denied, the investment fund will return to the investor. If the application is approved, the investment fund will be released from escrow account to the project. There currently is no expedited processing (a.k.a. premium processing) for the I-526 application.
7.) After the approval: If your application is approved, U.S. consulate will serve notice to the investor to interview about three to six months later. We will guide you through the consular interview.
8.) After interview: If you pass the interview, you, and your immediate family (spouse and unmarried children under 21) can immediately come to the US and get a two-year conditional permanent resident card. If you cannot pass the interview, your investment will be returned to you.
9.) Remove conditions: 90 days before the two-year conditional permanent resident card expires, we will help you file the application for removal of conditions to get a permanent resident card. We will prepare your application with supporting documents.
10.) Citizenship: You can apply for citizenship five years after you receive your two-year conditional green card. We will assist in this application process for an additional fee.
1.) Pick an investment business: If you are investing through an individual business, it is important to ensure that the investment is financially viable. We work with financial planners and business experts, so we will conduct due diligence on your prospective EB-5 investment.
2.) Proof of funds: After you make the decision, you should have enough investment funds to prepare the transfer. This amount would be $1,000,000 for individual business EB-5 investors, or $500,000 if the investment is in a targeted employment area. The investor needs to collect all the documents that prove that the source of funds for the EB-5 investment was legally obtained.
3.) Make the capital investment: After the EB-5 investors make the capital investment by either placing the funds in escrow or directly investing into the designated project, we, as their representative attorney, will file a petition for the immigration visa with USCIS (Form I-526). We will also help prepare all required documents for them and eligible family members.
—– 1.) After the approval: If your application is approved, U.S. consulate will serve notice to the investor for interview about three to six months later. We will guide you through the consular interview.
—– 2.) After interview: If you pass the interview, you and your immediately family (spouse and unmarried children under 21) may come to US and get a two-year conditional permanent resident card.
—– 3.) Remove conditions: 90 days before the two-year conditional permanent resident card expires, we will help you file the application for removal of conditions to get a permanent resident card. We will help prepare your application with supporting documents.
4.) Citizenship: You can apply for citizenship five years after you receive your two-year conditional green card. We will assist in this application process for an additional fee.
The Form I-526 must be filed with supporting documentation which clearly demonstrates that the individual’s investment meets all requirements, such as:
– Establishing a new commercial enterprise (not necessary to apply through regional center)
– Investing the requisite capital amount
– Proving that the investment comes from a lawful source of funds
– Creating the requisite number of jobs
– Demonstrating that the investor is actively participating in the business; (not applicable if applying through a regional center)
– Creating employment within a targeted employment area (if applicable)
– I-485 to become conditional resident for two years
– I-829 (must be filed within 90 days before the second anniversary of an alien investor’s admission to the United States as a conditional resident.)
– Evidence to show that a new commercial enterprise has been established, such as articles of incorporation, business license, or evidence of the transfer of the required amount of capital when purchasing an existing business.
– Evidence that the proper amount of capital has been placed at risk, such as bank statements showing the deposit of funds into the business’s account, evidence of equipment purchased for use in the business; evidence of property transferred to the business, and evidence of money transferred to the business in exchange for shares of stock. This stock cannot include terms requiring the business to redeem the stock at the holder’s request.
– Evidence demonstrating that the capital invested was lawfully gained, such as foreign business registrations, tax returns, or certified copies of criminal or civil judgments, where appropriate.
– Evidence that the investment has created at least ten full-time jobs, such as tax records, Forms I-9, or if employees have not yet been hired, a detailed business plan demonstrating that the nature of the business will require the hiring of ten employees within two years. If the business is a troubled business, the applicant must submit evidence that the currently existing number of employees will be maintained for at least two years.
– Evidence that the investor will be engaged in the management of the enterprise, such as evidence that the applicant is a corporate officer or member of the board of directors. If the business is a limited partnership, the applicant will be considered to have a management position only if the partnership agreement provides that the applicant will have the rights, powers and duties normally granted to limited partners under the Uniform Limited Partnership Act.
We emphasize on clear communication and a personal approach. Our clients work directly with an attorney from the initial consultation through the resolution of the case. We are quick to respond to client needs, available to answer your questions and intent on keeping you informed of the status of your case.
Few areas of law impact the long-term future of individuals and businesses as much as immigration law. The attorneys at C.T. Lee & Associates understand this, which is why we carefully analyze every client’s needs before developing a strategy that is designed to achieve each client’s goals as effectively and cost-efficiently as possible. See below for our list of services within immigration.
BUSINESS AND EMPLOYMENT-BASED IMMIGRATION – L-1 VISAS – O-1 VISAS – H-1B VISAS – EB-1 EXTRAORDINARY ABILITY GREEN CARDS – EB-2 EXCEPTIONAL ABILITY GREEN CARDS – EB-3 SKILLED AND UNSKILLED GREEN CARDS – EB-5 INVESTOR/EMPLOYMENT CREATION VISA – E VISAS (TRADER, INVESTOR, SPECIALITY OCCUPATIONS) – FAMILY-BASED IMMIGRATION – GREEN CARDS – VISITORS AND STUDENTS – P-1 & P-4 VISAS – U VISA – SPECIAL IMMIGRANT JUVENILE STATUS
