WELCOME TO EB-5 IMMIGRANT INVESTOR PROGRAM
The United States of America is modernizing the EB-5 Immigrant Investor Program for upcoming Immigrant Investor. This program is known as EB-5 for the name of the employment-based fifth preference visa that participants receive any part of the world.
The Objective of EB-5 Program
Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth.
Visa Classification Description
USCIS policy on EB-5 adjudications is contained in Volume 6, Part G of the USCIS Policy Manual.
All EB-5 investors must invest in a new commercial enterprise that was established:
- After Nov. 29, 1990, or
- On or before Nov. 29, 1990, that was:
1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results; or
2. Expanded through the investment, resulting in at least a 40% increase in the net worth or number of employees.
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
- A sole proprietorship;
- Partnership (whether limited or general);
- Holding company;
- Joint venture;
- Business trust; or
- Other entity, which may be publicly or privately owned.
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, if each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. This definition does not include noncommercial activity such as owning and operating a personal residence.
On Feb. 15, 2019, President Trump signed a law extending the Regional Center Program through Sept. 30, 2019.Under a new rule published by the U.S. Department of Homeland Security, several changes to the EB-5 Immigrant Investor Program will go into effect on Nov. 21, 2019.
The new rule modernizes the EB-5 program by:
- Providing priority date retention to certain EB-5 investors;
- Increasing the required minimum investment amounts to account for inflation;
- Reforming certain targeted employment area (TEA) designations;
- Clarifying USCIS procedures for the removal of conditions on permanent residence; and
- Making other technical and conforming revisions.
Targeted employment area (TEA) designations
- A rural area; or
- An area that has experienced high unemployment (defined as at least 150% of the national average unemployment rate).
- We will now directly review and determine the designation of high-unemployment TEAs; we will no longer defer to TEA designations made by state and local governments.
- Specially designated high-unemployment TEAs will now consist of a combination of census tracts that include the tract or contiguous tracts in which the new commercial enterprise is principally doing business, including any or all directly adjacent tracts.
- Provided they have experienced an average unemployment rate of at least 150% of the national average unemployment rate, TEAs may now include cities and towns with a population of 20,000 or more outside of metropolitan statistical areas.
- These changes will help direct investment to areas most in need and increase the consistency of how high-unemployment areas are defined in the program.
Clarified procedures for the removal of conditions on permanent residence
- This rule:
- Specifies when derivative family members (for example, a spouse and children whose immigration status comes from the status of a primary benefit petitioner) who are lawful permanent residents must independently file to remove conditions on their permanent residence;
- Includes flexibility in interview locations; and
- Updates the regulations to reflect the current process for issuing permanent resident cards (Green Cards).
Capital Investment Requirements
Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by immigrant investors, if they are personally and primarily liable and the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in U.S. dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) will not be considered capital for the purposes of section 203(b)(5) of the Act.
Note: Immigrant investors must establish that they are the legal owner of the capital invested. Capital can include their promise to pay (a promissory note) under certain circumstances.
The minimum investment amounts by filing date and investment location are:
|Petition Filing Date||Minimum Investment Amount – 8 CFR 204.6(f)(1).||Targeted Employment Area Investment Amount – 8 CFR 204.6(f)(2)||High-Employment Area Investment Amount – 8 CFR 204.6(f)(3)|
|On or After 11/21/2019||$1,800,000||$900,000||$1,800,000|
Future adjustments will be tied to inflation (per the Consumer Price Index for All Urban Consumers, or CPI-U) and occur every five years.THE CONDITIONS OF EB-5 PROGRAM
USCIS administers the EB-5 Program. Under this program, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a Green Card (permanent residence) if they:
- An EB-5 investor must invest the required amount of capital in a new commercial enterprise.
- Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers. Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the regional center program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.
- A job-sharing arrangement where two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions even if, when combined, the positions meet the hourly requirement per week.
Jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as permanent full-time jobs. However, jobs that are expected to last at least two years are generally not considered intermittent, temporary, seasonal, or transient in nature.
- For a new commercial enterprise not located within a regional center, the new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly ownedsubsidiaries) must itself be the employer of the qualifying employees.
- For a new commercial enterprise located within a regional center, the new commercial enterprise can directly or indirectly create the full-time positions.
- Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
- Indirect jobs are those jobs held outside of the new commercial enterprise but that are created as a result of the new commercial enterprise.
- In the case of a troubled business, the EB-5 investor may rely on job maintenance.
- The investor must show that the number of existing employees is being, or will be, maintained at no less than the pre-investment level for a period of at least two
- A troubled businesses one that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period before the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20% of the troubled business’ net worth before the loss. When determining whether the troubled business has been in existence for two years, USCIS will consider successors in interest to the troubled business when evaluating whether they have been in existence for the same period of time as the business they succeeded.
- A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States including, but not limited to, a conditional resident, temporary resident, asylee, refugee, or a person residing in the United States under suspension of deportation. This definition does not include immigrant investors; their spouses, sons, or daughters; or any alien in any non-immigrant status (such as an H-1B non-immigrant) or who is not authorized to work in the United States.
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