If for instance the money is invested into an approved Regional Center then this project must be located in a targeted area also known as a TEA and must create or sustain 10 full-time jobs for US citizens, lawful permanent residents or other immigrants legally authorized to be employed in the United States.
The requirement of creating at least 10 new full-time jobs can be satisfied by showing that as a result of the investment and the activities of the new enterprise at least 10 jobs will be created indirectly in the region through an employment creation multiplier effect. These Jobs do not have to be directly related to the project and can now include certain construction jobs during the construction phases of the project. Jobs can also be counted that were created by the investment and located in the region.
Forecasting tools which support the likelihood that the business will result in increased employment may be utilized. Therefore, a combination of two or more part-time positions will not fulfill the necessary requirement of the guidelines, even if the positions created jointly meet the hour per week minimum.
In an effort to disuade fraud, the EB-5 Visa foreign investor, their spouse and any dependent children are subject to a Conditional Permanent Residence status for a two year probationary period. Upon the conclusion of the two-year period, the USCIS will then examine the business investment to determine whether or not the investor has complied with all necessary requirements. If the investment is made in an existing business experiencing financial difficulty, the foreign applicant must submit proof that current employment positions will be secure for at least two years.
The parameters under which family members of the investor can qualify for the Conditional Permanent Residence or as a Lawful Permanent Resident are as follows: Spouse Spouses of the investor are permitted to accompany or follow the investor who has been granted their Conditional Permanent Residence. It should be noted that Common Law marriages will not be recognized for the purpose of permitting a spouse to qualify as a derivative beneficiary. If a child of the investor reaches the age of 21 or marries prior to admission to the US under the Conditional Permanent Residence or prior to the conclusion of the two-year conditional period when citizenship status will adjust to Lawful Permanent Residence, the former child, now considered a son or daughter, may not be eligible to accompany or follow the investor to the US.
Meeting the US Government qualifying conditions may not be within the control of the child or divorced spouse. As a result, the child or divorced spouse may become involved in removal proceedings through the US courts or be required to depart the United States.
In the case of death. Failing to establish this criteria will result in the denial of application to remove conditions, place family members in removal proceedings through the US courts and mandate immediate departure from the U. The USCIS does not clearly outline if a child who becomes a son or daughter before death of the investor is entitle to request removal conditions. If it is found that the USCIS does not extend this benefit, the son or daughter would be denied application to remove conditions and would be placed in removal proceedings through the US courts and be required to depart the United States.
Evidence of mere intent to invest at a later date is insufficient. Step 4 - File Form I After putting together all the necessary documentation, your attorney will file the Form I on your behalf. The I is the initial EB-5 petition. If your I is approved, you are eligible to apply for conditional permanent residency a 2 year conditional green card. Your green card is conditional for 2 years to allow for you to complete the EB-5 requirements.
Depending on if you are inside or outside of the US, you will either adjust status in the US or you will go through consular processing abroad. Adjustment of Status is done by by filing a Form I Consular processing is done by filing a Form DS Step 6 - File Form I After 21 months of becoming a conditional permanent resident, you are eligible to have your attorney file a Form I for you.
The Form I is the application to have the condition removed from your green card. This is so you can become an unconditional permanent resident a green card holder. You are eligible to get the condition removed from your green card if you meet all the requirements of the EB-5 program.
This is done by showing that your investment in the project was sustained and that you created the required 10 full-time jobs for US workers. The 18 month timeline is excepted to improve in the future Adjustment of Status or Visa Processing Adjustment of Status: takes about 6 months Consular Processing: takes about 8 to 12 months Conditional Permanent Residency: For 2 years you are a conditional green card holder, until approval of your I petition.
During this 2 year period you can live and work in the USA. I Processing The current processing time for the Form I is roughly 2. This processing time is expected to speed-up in the future Permanent Residency Green Card : Once your I is approved you are a permanent resident. Naturalization After being a permanent resident for at least 5 years , you may be eligible to apply for naturalization to become a US citizen. The rules for designating a targeted employment areas are too easy.
Regional centers need more regulation and oversight based on the instances of fraud and abuse that have taken place with regional centers.
These changes are centered on: increasing the required investment amount reducing the number of targeted employment areas and increasing the oversight of regional centers While nothing has been finalized, it is likely that the minimum investment amount will go up soon, that targeted employment areas will lessen, and that regional centers will be regulated more. For each EB-5 investment, 10 jobs must be created.
So, if there are 4 EB-5 investors, at least 40 jobs must be created. The new commercial enterprise must create 10 full-time positions for qualifying employees. The EB-5 investor, their spouse, sons, and daughters do not count as qualifying employees. Nonimmigrants and people that are not authorized to work in the US do not count as qualifying employees.
Keep in mind that these workers must be employed on a full-time basis at least 35 hours per week. Combining 2 part-time positions will not count as 1 full-time job, but you can have 2 or more employees share a full-time position job sharing. The jobs are expected to last for at least 2 years and cannot be seasonal, temporary, or intermittent jobs.
If you buy an existing business, the jobs already in existence will not count toward your requirement to create 10 jobs. You will have to create 10 jobs in addition to the jobs existing at the time you purchased the business. There is an exception to this rule for troubled businesses. A troubled business is a business that has been in existence for at least 2 years and has experienced a net loss of at least 20 percent of its net worth for the 12 or 24 month period before the date the EB-5 investor filed their Form I If a business is a troubled business, the investor may count the jobs they are saving as part of the 10 jobs they are required to create.
With a troubled business, you must show that you will at least maintain the level of jobs in existence before your EB-5 investment. The jobs should last for a period of at least 2 years. Keep in mind : If the troubled business doesn't have 10 employees, you will still have to hire more employees to reach the 10 employee minimum. For example : if a troubled business only has 5 full-time employees, then you are responsible to preserve those 5 jobs and create another 5 full-time jobs.
You can meet this requirement by either forming the policies of the business or by handling the day to day management of the business.
You cannot be a passive investor in the business. If you are investing in a regional center, you will likely be a limited partner in the business. You can meet the management requirement here by showing that you have the rights normally given to limited partners, such as voting rights.
Another way to show sufficient engagement in the management of the enterprise is by submitting a statement of your job title and duties, with your EB-5 petition. The EB-5 visa is an immigrant visa category. This means that as a successful applicant, you can become a permanent resident. The process first starts with getting a conditional green card. After having your conditional green card, you can then get the condition removed and become an unconditional permanent resident. As a permanent resident, you may apply to become a US citizen; this process is called naturalization.
You may apply for naturalization after being a permanent resident for at least 5 years. Keep in mind that your time as a conditional permanent resident counts toward the 5 years. To naturalize, you must also be physically present in the US for at least 2 and a half years during the 5 year period. During this time, you cannot be absent from the US for a single period longer than days.
There are other requirements to becoming a citizen as well, such as having good moral character and passing a United States civics test. An experienced immigration attorney can help you organize and decide the documents to include. This is a very detailed process and the documents that you will need to include depend on the particular facts of your case.
The documents that will be included in your petition will center around 3 main categories: 1. The documents you should include in your application will depend on how you got your investment funds. They will also depend on where your funds went from the time they were earned to the time they were invested in the EB-5 project.
Example : If you obtained your funds from the sale of a property, you will include different documents than if you obtained your funds by gift. Disclaimer : the list below is not a complete list of all the documents to include in your EB-5 application.
The goal of this list is to give you an idea of the documents you should include. If your source of funds is coming from a loan: copy of the actual loan document letter from the lender to the EB-5 investor describing the loan amount, date of loan, what security or collateral was given in exchange for the loan, etc.
Your immigration lawyer should first consult with you to see if an EB-5 visa is the best option based on your immigration goals and circumstances. After deciding that an EB-5 visa is the right option for you, your immigration lawyer should act as your guide through the entire process. Your immigration lawyer should discuss with you whether the investment you are considering meets the immigration requirements of the EB-5 visa.
Your lawyer should analyze where your investment funds come from. Your lawyer should then determine which documents are needed for your EB-5 application. If your I or I petition gets a request for evidence, your immigration lawyer should prepare a response for you. Your lawyer should include all documents and information requested.
Once your Form I gets approved, your immigration lawyer should help you adjust your status or get your visa. Before investing in an EB-5 project, you should do your own due diligence, like you would if you were making any other investment.
Besides your own personal efforts, there are professionals that can help you choose an investment. Registered investment advisors usually provide investment advice in exchange for a fee. With BrokerCheck, you can also learn how many years of experience your investment advisor has, which exams they passed, and which state licenses they have.
Unlike the E-2 visa, you do not have to be a citizen of a particular country to get an EB-5 visa. As long as you meet the requirements of the EB-5 visa and you are not barred for some other reason, you should qualify to get an EB-5 visa. There are currently 10, visas issued each year for the EB-5 visa category.
When the number of approved I petitions for nationals of a particular country exceeds the number of visas available, this creates a backlog of approved applications. When this happens, approved applicants must wait until a visa becomes available. Over the last few years, the demand for EB-5 from citizens of Mainland China has exceeded the number of visas available.
The increased demand created a major backlog. This is why Chinese investors have to wait many years after their I is approved before they can get an EB-5 visa or adjust status. Nationals of Mainland China are currently the only group of EB-5 investors affected by a visa backlog. Your future intent to invest, without a present commitment, will not be enough.
You cannot hold-off on investing your capital until after your I is approved. However , before filing your I, you can deposit the money in the escrow account. You can then make the release of the investment funds conditional on I approval and visa issuance or adjustment of status.
So, if the I doesn't get approved for any reason, you would be able to get your investment funds back. Aging-out is when your child is no longer able to join you through your EB-5 visa, because they are 21 years of age or older.
This can be an issue when your child is close to 21 years old when you are applying for an EB-5 visa. For most people, this means that if your child is under 21 years old at the time you file your Form I, they will be ok. You should not leave the US for a 6 months or longer at any one time, as this may be seen as abandoning your permanent residency.
If you need to leave the US for an extended period of time, you should apply for a re-entry permit. A re-entry permit is a document that allows you to stay outside of the US for extended periods of time. With a re-entry permit, there is a legal presumption that you do not intend to abandon your status as a permanent resident. A re-entry permit is usually valid for 2 years from the date it is issued.
Yes, your existing US business can qualify for an EB-5 if it meets all the EB-5 requirements: The business must qualify as a new commercial enterprise. You will have to show that the invested funds were obtained lawfully.
You are required to create 10 full-time jobs for US workers. You may be able to count the jobs that you have already created in your US business as part of the 10 jobs. Conclusion You should now have a much better understanding of the most important aspects of the EB-5 visa program. Ashoori Law. See all reviews. Simon Holland. Kritika Shah. Akolom Gebreamlak. Winta Alem. Heena Saini. Mohamed Gharib. It is highly advisable to have an immigration attorney do the filing for you.
After filing, biometric screening, including fingerprinting, is required for petitioners between 14 and Most petitions result in approval. Denial, though not very common, usually happens in cases of criminal or immigration law violations. If an EB-5 investor has their I petition approved and they are not living in the U.
It is processed at a U. It is highly advisable to file this form with an immigration attorney. The application consists of two parts, application and interview. The application documents biographical information, including previous residences, job history, and military service history if applicable. This is conducted at the U. A consular worker assists in completing this part of the application process. The applicant may be asked to bring documents such as birth certificates, passport, and marriage certificate if applicable.
Approval of an I or DS petition results in a Green Card — the applicant is now a conditional permanent resident in America. This status is good for two years. The investor and his or her family members can live and work in the U.
During the 2-year conditional residency period, the EB-5 visa investor will be required to fulfill physical presence requirements, and cannot remain outside of the United States for more than one year.
If the immigrant investor does reside outside of the U. Three months before the expiration of the conditional permanent resident status, the investor will want to remove the conditions of permanent residency. The final step in the EB-5 visa process is for the applicant to become an unconditional permanent resident. This is done by the removal of conditions to permanent residency after an I application is filed, adjudicated, and approved.
The I petition is submitted to USCIS 90 days prior to the anniversary of the date that the applicant first received his or her conditional residency. If the I is not filed on time, the investor may not be granted permanent residency. Now they can permanently live and work in the United States. Five years from the date they were issued initial conditional residency, they will have the option to become U. For a free consultation about the EB-5 process, email me at kurt eb5marketplace.
Kurt Reuss is the founder of eb5Marketplace. He is a registered securities broker working exclusively in EB
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