EB-5 "Million Dollar" Investor Green Card
EB-5 Investment Visa Program
Congress created the EB-5 program in 1990 to encourage new investment capital into the United States and to create new jobs for U.S. workers. The EB-5 program is based on our national interest in promoting immigration for individuals that will stimulate the economy by investing their capital in new, restructured, or expanded businesses in the United States. Unlike the E-2 non-immigrant visa category, the EB-5 immigrant visa provides the investor with a green card and lawful permanent residence.
Under the EB-5 program, foreign-born individuals who invest their capital in job-creating projects in the U.S. receive conditional permanent resident status for two-years. Towards the end of the two year period, the immigrant must file an I-829 Form to remove the conditions on permanent residence. As part of the filing, the immigrant must prove that the requirements of the EB-5 program have been satisfied. If the I-829 Form is approved, the alien becomes an unconditional permanent resident whose green card is valid indefinitely. Congress created the conditional status period to help ensure compliance with the statutory and regulatory requirements and goals pertaining to the infusion of foreign capital and job-creation.
In 1993, the Immigrant Investor Pilot Program was launched to encourage foreign investment in rural areas of the United States and areas with high unemployment rates ("Targeted Employment Areas"). Authorized Regional Centers would collect capital from foreign investors and distribute it to various projects in targeted employment areas. Since 1993, the pilot program has been renewed many times. Currently, the sunset date is scheduled to expire in September 2015.
The qualifications for the EB-5 category include 1) a new commercial enterprise formed after November 29, 1990 (or a restructured or expanded existing business); 2) an investment of capital ($1 million or at least $500,000 if invested in a "targeted employment area"); 3) benefit to US economy; and 4) create 10 full time employment for US workers. As with many areas of immigration law, there are many misconceptions about the EB-5 immigrant investor visa program.
Two of the more important evidentiary requirements involve proving the establishment of the new commercial enterprise and the investment in the new commercial enterprise.
The EB-5 Investor Visa Program has been used by some to take advantage of foreign investors through EB-5 scams. The Securities and Exchange Commission has worked closely with United States Citizenship and Immigration Services to shut down fraudulent operations. Foreign investors contemplating the EB-5 program should consider the following steps:
- Request Written Investment Information. Ask the regional center for a copy of the investment offering memorandum or private placement memorandum.
- Confirm that the regional center has been designated by USCIS. USCIS has a list of current regional centers. Even if a regional center is on the list, you should know that USCIS does not endorse the regional center.
- Is Promoter Being Paid? Some attorneys and promoters are paid by the regional center. Ask the promoter and regional center if there is a compensation arrangement. Be skeptical of such a situation, and pay attention to information provided by the promoter that is inconsistent with the investment offering memorandum or private placement memorandum.
- Obtain copies of all documents provided to USCIS. If a regional center is approved by USCIS, it must have provided an I-924 to USCIS. Additionally, it must file an I-924A with USCIS every year. Ask for copies of these documents.
- Are Principals and Developers Invested in the Project? The developers and principals of the regional center often invest their own funds in the projects they manage. You would want to know if the developers and principals invested in this particular project.
- Seek Independent Analysis. Check county records to see if the issuer has obtained the proper permits for the development. Do the state and local property tax assessments correspond with the values the regional center attributes to the property.
- Use a financial advisor. It's a good idea to have your financial adviser assess the investment.
The EB-5 immigrant visa is one of the more complex processes in immigration law, and it is necessary to have an experienced immigration attorney involved to ensure that all of the onerous requirements and satisfied. The Nuñez Firm has extensive experience assisting our immigration clients with every step of the EB-5 process. Contact Nelson & Nuñez, P.C. today to schedule a consultation.
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