EB-5 Visas for Investors

10,000 visas are allocated annually for investors who create employment. This is why ‘investors’ are placed in the ’employment’ category.

The minimum amount of investment is either $500,000.00 or $1,000,000.00. Threshold investment amounts to $500,000.00 in areas of high unemployment or in a rural setting and reserves 3,000 visas of the 10,000 for this ‘targeted employment area’. The $1,000,000.00 minimum is for areas other than a targeted employment area, but may also be in a targeted employment area. The Act further says that such an investor must provide at least ten full-time jobs for US citizens, residents or ‘other immigrants lawfully authorized to be employed’ in the US. It is this employment provision which made this section politically acceptable to the Congress so that receiving residence through investment could be passed.

The regulations also say that there may be no passive investment. However, the investor only has to have a place on the board of directors and does not have to take a more active role if that is not wanted.

There is a major difference between obtaining permanent residence through this category and the other employment categories. The initial grant of residence through the ‘investor’ category is called ‘conditional’ permanent residence. What this means is that residence is granted conditionally for two years. At the end of this time a second form is filed with the USCIS showing that the required amount of investment is there, as is at least ten full-time employees that were hired because of the investment. Of course, they don’t have to be the same employees. When these conditions are met, the ‘conditional’ part of the conditional permanent residence is dropped. The only equivalency for this kind of provision is in the marriage category where conditional permanent residence is given to a spouse of a US citizen or legal permanent resident who hasn’t been married for two years before residence is given.

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Commercial enterprise:
Commercial enterprise means any for-profit activity formed for the on going conduct of lawful business including, but not limited to, a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust or other entity which may be publicly or privately owned. The definition includes a commercial enterprise consisting of the holding company and its wholly-owned subsidiary, provided that each such subsidiary is engaged in a for-profit activity formed for the on going conduct of a lawful business. It does not include a noncommercial activity such as owning or operating a personal residence.

Employee of a commercial enterprise is an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. It shall not include independent contractors.

Full-time employment:
Full-time employment is the employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of thirty-five working hours per week. A job-sharing arrangement whereby two or more qualifying employees share a full-time position shall count as full-time employment, provided the hourly requirement of per week is met. It shall not include combinations of part-time positions even if, once combined, such positions meet the hourly requirement per week.

Invest means to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt or arrangement between the entrepreneur does not constitute a contribution of capital.

New means established after November 29, 1990.

Qualifying employee:
Qualifying employee means a United States citizen, lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation. This does not include an entrepreneur
s spouse, sons, daughters or any nonimmigrant alien.

Rural area:
Rural area means any area not within either a metropolitan statistical area or the outer boundary of any city or town having a population of 20,000 or more.

Targeted employment area:
Targeted employment area means an area which at time of investment, is a rural area or other area which has experienced unemployment of at least 150% of the national area rate.

The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an entrepreneur by more than one investor, provided that each petitioning investor has invested, or is actively in the process of Investing, the required amount for the area in which the new commercial enterprise is principally doing business, provided each individual investment results in the creation of at least ten full-time positions for the qualifying employees. The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an entrepreneur, even though there are several owners of the enterprise, including persons who are not seeking this classification and non-natural persons, or foreign and domestic, provided that the source(s) fall capital invested is identified and all invested capital has been derived by lawful means.