EB-5 Green Card
Permanent Residency through Investments
In this global economic crisis, affecting United States too, with high levels of unemployment and large inventory of unsold goods, the EB-5 Green Card program could be a great checkmate toward permanent residence in the United States of America. The EB5 investment visa was created by the Congress in 1990 to benefit the U.S. economy through job creation and capital investment by foreign investors.
The EB-5 Immigrant Visa is reserved to foreign nationals that make an investment of at least 1 million dollars ($1,000,000) in a Commercial Enterprise that employs at least 10 full-time workers that are either U.S. Citizens of Lawful Permanent Residents. If the investment is made in a rural area or an area of high employment, the investment can be of $500,000 only.
In the EB5 context, Commercial Enterprise means any for-profit activity formed for conducting any kind of lawful business including, such as:
- A sole proprietorship;
- Partnership;
- Holding company;
- Joint venture;
- Corporation;
- Business trust or other entity.
Among all the other Business and Investor Visas available, the EB-5 is the most desirable because it guarantees permanent residency (Green Card) in the United States for the principal investor, his or her spouse, and the unmarried children under the age of 21.
Once the EB5 petition is approved, the investor and his or her dependents are admitted to the United States as Conditional Lawful Permanent Residents. Ninety days before the expiration of the 2-year Green Card, the investor and his family will have to apply for removing the conditions of residency.
After five years of the initial admission in the United States as conditional permanent resident, an EB5 investor is eligible to apply for U.S. Citizenship.
How to get the EB-5 Visa
There are two ways to obtain an EB-5 Visa: either through an approved Regional Center (the so called, Immigration Pilot Program) or through a direct or private investment.
USCIS Regional Centers
A Regional Center is any economic unit, public or private, involved in the economic growth, improving regional productivity, job creation and increasing domestic capital investment. It is a feasible solution for immigrants who are not interested in the management and control of a company but are interested in granting a Green Card by investment.
The U.S. Citizenship and Immigration Service (USCIS) defines a Regional Center as “any economic entity, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment”.
In other terms, it’s an entity designated by the USCIS as eligible to receive capital from immigrant investors, taking advantage of indirect job creation.
Congress created the “Immigrant Investor Pilot Program” or “Pilot Program” in 1992, to encourage immigration through the EB5 visa program. The Pilot Program provides for investments, affiliated with Regional Centers, by indirect employment creation.
Foreign investment into the Pilot Program must be made prior to the submission of the EB5 application. This is a necessary requirement in order to obtain the approval of the form I-526.
Direct Investments
A direct investment can be done in any legitimate productive activity that creates at least 10 full-time jobs for qualified American employees. You can either acquire an existing business, restructuring and reorganizing it in a new one or you can expand the business, increasing the 40% in the net worth or number of employees.
First, you have to find an appropriate business project to invest. This could be either a new commercial enterprise or a Regional center project.
Second, the investment must be made. The investor’s funds for the investment must be from a lawful source. The U.S. Citizenship and Immigration Service (USCIS) will require information and will track the source of the funds. Investment must be at least $1,000,000 in a commercial enterprise that employs at least 10 full-time workers (U.S. citizens or Green Card holders). Some Regional center investments are located in Targeted Employment Area (TEA) and qualify for the lower threshold investment. In this case the investment can be of just $500,000.
Third, the I-526 (Petition for an Alien Entrepreneur) must be filed with the USCIS. The processing time of I-526 petitions is between 12 and 18 months.
Fourth, once the petition is approved, there are two way to proceed.
If you live outside the United States, you have to schedule an immigrant Visa interview at the U.S. Embassy of your country. This is also called Consular Processing and typically takes about 6 months or longer depending on the country. Times may vary depending on the facts of each case.
If you are already living in the United States under a valid, unexpired non-immigrant Visa, you can apply for “adjustment of status” with USCIS with form I-485. The spouse and children residing in the United States may be included in the petition, filling in the form I-485 for each of them.
While you are waiting for a form I-485, you can apply for permission to work in the United States and the permission to stay for more than one year without obtaining a re-entry permit.
Once the adjustment of status is approved, generally after 12 months, the investor and her/his family will be admitted in the United States as Conditional Lawful Permanent Residents. The Form I-829 (Petition by an Entrepreneur to Remove Condition) must be filed 90 days prior to the two-year anniversary of the granting of the EB-5 applicant’s conditional Green Card, in order to demonstrate that the investment was made and it is still in place. Third step is critical and typically require the help of an immigration lawyer.
How can an immigration lawyer help me choose a Regional center?
One of the most important role of your lawyer, in all the EB5 process, will be supervising your petition and providing you advices, step by step.
In addition to that, investors not only want to work with lawyers that understand the EB5 Green Card investor visa program, but they also require to work with corporate and business bankruptcy lawyers that understand business and business litigation, investment and corporate laws.
An immigration attorney can help you find out the Regional center program and location, that best matches your skills and personal preferences. An attorney will also describe the immigration risks of the investment, ensuring conformity of business plans, reviewing documentation, and preparing the petition.
Although Regional Centers seek for long-lasting and successful investments, they are not synonyms of guaranteed profit. There are a lot of questions to answer when you are facing on to a Regional Center and your lawyer will answer them.
What should your immigration lawyer looking for in your Regional center?
Regional centers are NOT created equal. Choosing the right Regional Center is a step of critical importance. Some Regional centers have long and well-settled case-file while others are novel and less experienced. Recently approved Regional centers may have very little track record of successful petitions. Moreover, some Regional centers are not certified, others have become inactive and some others have not been re-certified.
Contact an EB5 Immigration Attorney
As a New York Immigration Attorney, I handle any kind of immigration matters, including Investment Visas, Employment-based Visas, Green Card petitions, and application for U.S. Citizenship. I am also one of the very few Immigration Lawyers in New York with firsthand experience with Business Visas and the immigration system in general, as I have held the E-2 Treaty Investor Visa status before becoming a Dual Citizen of Italy and the United States.
I offer complete solutions for foreign investors, from Business Plan review to Visa approval, and everything required in between.
If you would like a free evaluation of your immigration case, please fill out a contact form with as many details as possible. I am also available for in-person consultations at my office in New York City.