EB-5 Visa - U.S. Green Card for Investors

The general requirements for the EB-5 visa are:

• Investment in a new commercial venture

  1. Companies are considered to be new if they
     • were founded after 29/11/1990 or
     • were founded on or before 11/29/1990 but
       • purchased and restructured to create a new commercial enterprise or
       • expanded as a result of the investment to such an extent that the number of employees or the net value has increased by at least 40%.
          
  2. Various U.S. business models are considered commercial provided they pursue profit-making, legal business activities. Acceptable business models include corporations, holding companies and partnerships.

• Investment in a regional center (passive investment)

  1. Persons not looking to start a company themselves or invest in a company in which they must also then work and take responsibility have the opportunity to invest in a regional center. The Regional Center Institute was created by the U.S. government to offer foreign investors the opportunity to obtain a green card through a strictly passive investment.
      
  2. The projects organized by these regional centers (e.g. construction of nursing homes, hospitals, hotels, etc.) in which foreigners can invest are almost all located in economically impoverished areas, so that an investment of 800,000 USD is sufficient.
      
  3. Another advantage is that the project creates required jobs, not only within the relevant company but also in the vicinity of the project, e.g. through construction activities and other similar activities, and has often already created such by the time the EB-5 petition is filed. However, the applicant will still receive the conditional green card first.
      
  4. One disadvantage of investing in a regional center is that the investor cannot exert any influence over the fate of the company. A few fraudulent enterprises have also been found among the array of regional centers.

• Creation or maintenance of at least ten full-time jobs

  • These ten full-time jobs must be awarded to qualified U.S. workers and generally must be in place within two years of obtaining the EB-5 green card.
    1. Full-time jobs are jobs with a work time of at least 35 hours per week. A full-time position may be filled by two part-time employees; however, positions requiring only part-time employees will not be considered.
    2. Qualified U.S. workers are U.S. citizens, green card holders and other persons with valid U.S. work authorization.
        
  • If the jobs are merely maintained, proof that the company was at risk must also be presented.
    1. Companies are considered at risk if they have recorded a net loss in the 12 or 24 months preceding the official date of receipt of the investor's petition by U.S. immigration authorities (priority date).
    2. Moreover, this net loss must represent at least 20 percent of the net value of the company prior to the at risk period.

• A sufficient capital investment

  1. Capital generally refers to cash, business assets, inventory, other tangible assets, cash equivalents and loans secured by the investor's assets.
      
  2. The minimum investment amount is generally USD 1.05 million. A smaller investment of USD 800,000 may also be sufficient, provided the money is invested in an area that
     • is classified as rural or
     • has a high unemployment rate of at least 150 percent of the U.S. average.

Once all requirements are met, interested persons can apply for an EB-5 green card. However, it is advisable to seek legal advice before applying. Depending on the type of investment, the economic condition or the location of the business, there are different strategic considerations as well as factors (e.g., whether an existing business qualifies as "new" under the EB-5 visa rules) that should be reviewed carefully.

There are three steps to applying for an EB-5 green card.

1. The investor files a petition. The petition consists of forms (including Form I-526, Immigrant Petition by Alien Entrepreneur) and documentation demonstrating compliance with the necessary requirements.
    
2. If the petition is approved, the investor has two options:
   • If he or she is in the USA legally at the time the petition is approved and he or she entered on a non-immigrant visa rather than a visa waiver, he or she may be able to apply for an adjustment of status in the USA to change his/her non-immigrant status to immigrant status. However, not all legal residents are entitled to this option; for example, diplomats are excluded from this option as are persons who entered the country on a J-1 visa. Even a visa-free entry ("ESTA") does not entitle the holder to an adjustment of status in this case.
   • If adjustment of status is not possible or not desired, an immigrant visa is applied for at a U.S. consulate outside the United States. Upon entry, the investor is considered a Lawful Permanent Resident and receives a stamp in their passport from the immigration officer as proof of this; the green card itself will be sent within a few weeks or months.
      
3. As an EB-5 investor, the applicant will initially receive a conditional green card, which is only valid for two years. In order to lift the proviso and obtain permanent green card status, the investor must file a petition within 90 days prior to the expiration of his or her conditional green card to lift the reservation (Form I-829). If it can be proven that the investor has already fulfilled the above-mentioned requirements of the EB-5 green card (in particular, the creation or preservation of jobs) or that the investor has not yet fulfilled these requirements but will do so within a reasonable time, the reservation is lifted and he or she receives a green card without a time limitation.

Are you looking for support for your green card application as well as for the purchase or establishment of a U.S. company or legal advice on the corporate and tax optimization of your U.S. investment?

U.S. corporate law is as diverse as the USA itself: The legislative power for this area of law lies with the individual states. As a foreign investor, you need to take a close look at both the law of your home country and the law of the USA. In any case, a business engagement in the USA requires a comprehensive legal - as well as a mandatory tax - review of your individual case. We will be happy to assist you in this respect. Depending on the focus of the requested consulting, our experienced attorneys and our cooperation partners in the USA are at your disposal.

If you have any further questions regarding the EB-5 visa, other U.S. immigrant visas as well as the formation or the tax or corporate optimization of your U.S. investment, please do not hesitate to contact us - by email (info@visum-usa.com) or by telephone (+49 69 76 75 77 85 26). We will gladly advise you on all topics relating to U.S. immigration law, and, through our U.S. attorneys based in Germany, we can also provide you with comprehensive support in the event of a subsequent application.