The EB5 visa was launched by Congress in 1990 and is administered by U.S. Citizenship and Immigration Services (USCIS). The fundamental purpose of the program is to stimulate economic activity, capital investment and job creation through investments by foreign investors who want to live in the U.S.Qualifying for an EB5 Visa
A foreign investor may potentially qualify for an EB5 visa in three different ways:
- Investing $1,000,000 and hiring 10 full-time employees anywhere in the U.S.
- Investing $500,000 and hiring 10 full-time employees in a high unemployment area or a rural area.
- Investing either $1,000,000 or $500,000 (if the investment is made in a high unemployment area or rural area) in a designated Regional Center, and creating 10 full-time indirect or induced jobs.
All EB5 investors must invest in what USCIS designates as a new commercial enterprise. This is a business that meets either of the following requirements:
- It was established on or before November 29, 1990, and the investment will fund restructuring and/or reorganizing such that the enterprise effectively becomes new again; or the investment will result in at least a 40 percent increase in the business’s net worth or employee headcount.
- It was established on or after November 30, 1990.
The investment itself does not necessarily have to be in cash. It can partly or wholly take the form of inventory, equipment, tangible property, cash equivalents or secured indebtedness.
Job Creation Requirements
As noted, job creation is one of the pillars of the EB5 visa program. Foreign investors who invest $1,000,000 must create 10 full-time positions anywhere in the U.S. Those who make their investment in a high unemployment area or a rural area (which USCIS refers to as a Targeted Employment Area or TEA) can reduce their commitment to $500,000.
A high unemployment area is defined as one where the unemployment rate is at least 150% that of the national average. A rural area is defined as an area that is outside a metropolitan statistical area (MSA) and has a population of less than 20,000 (based on the most recent census data).
Foreign investors who allocate their $1,000,000 or $500,000 investment to a USCIS-approved Regional Center do not have to create 10 full-time jobs. Instead, they must prove that their investment creates (at least) 10 indirect jobs or 10 induced jobs.
Indirect jobs are defined as jobs within the community that are created to provide goods or services to the Regional Center project. Induced jobs are defined as jobs within the community that are or will be created as a result of income spent by employees working on the Regional Center project.
Investing in Troubled Businesses
In some cases, a foreign investor may also be allowed to invest in what USCIS deems a “troubled business,” and satisfy the job creation requirements by preventing job loss (i.e. maintaining 10 full time jobs that would otherwise be in jeopardy of being eliminated). A troubled business meets all of the following requirements:
- The business has been operating for at least 24 months.
- The business has experienced a net loss in the 12 or 24-month period immediately preceding the priority date on the EB5 investor’s Form I-526.
- The loss for the period in question was at least 20% of the business’s net worth.
- The business employs at least 10 full-time employees, and is expected to maintain at least this level of employment for the next 36-42 months.
It is important to note that the process of designating a business as troubled for the purposes of EB5 investment is complex and time consuming. This is because USCIS conducts extensive diligence to ensure that such businesses are indeed facing imminent workforce terminations or layoffs.
Investors are not obligated to provide day-to-day management in any business that is associated with their EB5 visa. They are also not obligated to be the majority owner or the sole investor, and they can live anywhere within the U.S. They can also petition to have their spouse and children (under 21 years of age) join them in the U.S. as part of the EB5 visa.
The EB5 visa program is complicated and requires extensive documentation. To learn more, contact the Pollak Immigration team today. We will learn about your unique situation and immigration objectives, clearly answer your questions regarding the EB5 visa program — as well as other programs that may be an option for you or your family members — and help you create a solid, complete, timely and impressive application.
Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration