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McCloud Law Group Legal Blog

Tuesday, October 28, 2014

EB-5 "Investor" Visa: What to Know

 

EB-5 “Investment” Visa: What to Know

The EB-5 visa or Immigrant Investor Program was established in 1990 to stimulate employment through capital investment by foreign nationals.  It enables potential immigrants who are investing significant amount of money into a new commercial enterprise to emigrate permanently to the U.S.

The law is very specific as to the amount of money available for investment and how it is to be invested. Key requirements include:

  • The immigrant must invest in a new commercial enterprise or the restructuring and enhancement of an existing enterprise.
  • The immigrant must invest at least $1 million (or $500,000 if the investment is made in a Targeted Employment Area: a rural geographic area of high unemployment).
  • The immigrant must conclusively demonstrate that at least 10 full-time jobs will result from the investment.
  • The immigrant must demonstrate, via employment documents, tax documents, property sale documents and other evidence, that the funds to be used for the investment were obtained legally.

EB-5 and Path to Citizenship
If an immigrant meets its requirements, the EB-5 visa allows comparatively easy entry into the U.S. for successful applicants. It does not, however, pave a fast path to citizenship. Instead, the visa results in the granting of conditional permanent residency, which is valid for two years. The residency is conditional because, beginning with the 21st month of conditional residency, the investor must submit evidence that:

  • The full required investment has been made
  • Ten jobs have been created or maintained or will be created within a time period approved by the USCIS

If, after two years, the USCIS is satisfied that the conditions of the investor visa were met, the investor and his or her family members are granted 10-year green cards. Five years into the 10-year green card time period, the investor and family members can apply for U.S. citizenship.

Changes to the EB-5 Visa

In recent years, Congress has attempted to address the fact that only a small number of applicants apply for the EB-5 visa, presumably due to complex steps in the application process, excessive adjudication periods and inefficiency in the USCIS’s processing of EB-5 applications. Tweaks to the process and the subsequent renewal of temporary initiatives designed to increase participation in the EB-5 visas include:
 

  • A relaxing of the definition of what constitutes an investment made under the investment visa program
  • Loosening of restrictions governing “managerial involvement” on the part of investors
  • Fewer restrictions concerning where the investor and his or her family can live in relation to the location of the business in which the investor made an investment

Regulations related to the EB-5 visa program can be complicated.  Foreign investors interested in immigrating to the U.S. under this program should consult with an attorney to ensure they comply with all its rules.
 


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