Question:

For foreign investors looking for freedom and flexibility to live and work in the United States in a way accommodating to their lifestyles, the EB-5 investor category can provide an excellent opportunity to accomplish this goal through the obtaining of Green Cards.

There are essentially two EB-5 programs, i.e. the Regular program and the Regional Center program. In order for an applicant to qualify under the Regular program, the following three basic requirements must be met: investment in a new commercial enterprise; investment of at least $1 million (or $500,000 in certain cases) into the business, and creation of employment for at least 10 full-time U.S. workers.

The investment may consist of various forms of capital, including cash, equipment, inventory, property, and other tangible equivalents. An investment amount of $1 million is generally the minimum. However, $500,000 is acceptable if the business is situated in a “targeted” employment area, i.e., one that has experienced unemployment of at least 150 per cent of the national average rate or a rural area.

The second program within the EB-5 category, i.e. the Regional Center program, is ideal for the retiree or inactive investor due in large part to the “indirect employment” feature of this program. The Regional Center program advantageously removes the 10 full-time employee requirement of the Regular program and substitutes the less-restrictive “indirect employment creation,” which allows the investor to qualify by proving 10 direct and/or indirect employees who are new to the Regional Center.

The EB-5 policy management requirement is minimal in that the investor can be a limited partner and still qualify as long as the limited partners have a policy making role. Thus, for those who are not interested in day-to-day management or running an active business, Regional Center programs offer a more acceptable inactive form of investment, than do most Regular program investments.

Another advantage of Regional Center programs that adds to the flexibility of this Green Card category is that the investor is not required to live in the place of investment; rather, he or she can live wherever he/she wishes in the United States.

Each Regional Center program must be pre-approved by CIS in order to be eligible to qualify for EB-5 Green Cards.

An alien entrepreneur seeking immigration benefits under the Immigrant Investor Pilot Program is subject to all conditions and restrictions set forth in section 203(b)(5) of the INA. 300 visas are available under the Immigrant Investor Pilot Program for every five fiscal years beginning on October 1, 1993.

An alien seeking an immigrant visa as an alien entrepreneur under the Immigrant Investor Pilot Program must demonstrate that his or her qualifying investment is being made to a regional center approved by the Assistant Commissioner of Adjudications pursuant to and that the investment will create jobs indirectly through revenues generated from increased exports resulting from the new commercial enterprise.

To show that 10 or more jobs are actually created indirectly by the business, reasonable methods may be used. Such methods can include but are not limited to multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economic or statistically valid forecasting devices which indicate the likelihood that the business will result in increased employment.

An alien is able to file a petition under the Immigrant Investor Pilot Program once they have invested or are actively in the process of investing in a regional center that has been approved by the Service.

If a regional center’s approval to participate in the Immigrant Investor Pilot Program is revoked, an alien entrepreneur residing in the U.S. on a conditional basis under the EB-5 program will have their permanent residence status terminated, unless they can establish continued eligibility under section 203(b)(5) of the INA.