INA (Immigration and Nationality Act) Section 203(b)(5), also called USC (United States Code) Section 1153 (b)(5), as well as 8 CFR (Code of Federal Regulations) 204.6 define the EB-5 or EB5 Green Card program. This program allows people from non E2 or E1 (Treaty Investor or Treaty Trader) countries to invest in the U.S. and gain residency. The bad news is that the people who look to the EB5 Green Card don’t qualify for the two easier methods…the L1 IntraCompany Transferee visa or the E-2 or E-1 Treaty Investor/ Treaty Trader visas.
The good news is that this path can lead to an EB5 Green Card and later US citizenship. Of course there is always a price. Whereas you can get into the US with $100,000 or so with the L-1 or the E1 or E2, you need at least $500,000 for the EB5 Green Card, and have to hire 10 US workers for a period of 2 years.
Investment Visa Options
If you are from a treaty country, consider the E-2. It does not lead to permanent residency but has an interesting twist. If you intend to return to your country of origin at some unknown time in the future then you can renew it until that period arrives. The catch is being from a treaty country.
On the other hand, the L-1 requires you to work for or own a company and be a manager or executive of it for 1 year out of the past three. These 2 categories (manager or executive) can lead to a Green Card. The L1 has a third category called person of Specialized Knowledge, but that does not lead to a Green Card. However, if you do not own a foreign company or work for one as a Manager or Executive then your only choice is the EB5 and let’s proceed to make you familiar with it.
EB5 Green Card Basics
The EB5 Green Card program requires you to invest either $1 million, or with certain requirements, $500,000 into a business and you must employ 10 US workers for 2 years. Until that time is completed, you receive a conditional Green Card. If you meet all the requirements, the condition is lifted and you receive a permanent Green Card and can later apply for citizenship. In order to apply, you should be clean of a criminal record, or if you have one, you need to have it waived. For more information on immigration waivers, visit our Criminal Issues page.
There are a number of choices available within the EB5 Green Card program, and they include limited partnerships, holding companies, as well as a regular corporation you may choose to create or purchase.
You have the choice of creating a new company or investing in one that currently exists. In order to be considered ‘new’ the company must have been started after November 29th of 1990. If you purchase one that was established before that date, then you have to restructure, reorganize, or expand it in such a way that you make a substantial change in the net worth of the company, or the number of people working for it. Substantial is defined as a 40% change.
The important fact to know about the 40% change is that it can be a result of even counting the contribution of people other than those who are applying for status in the US. For more information visit 8 CFR (Code of Federal Regulations) 204.6.
If you are seeking to invest $500,000 then they call it investing in a targeted employment area. That is defined as an area with less than 20,000 in population or an area that is suffering 150% of the nation’s unemployment rate.
You have to be actually investing your money or in the process of investing to obtain an EB5 Green Card. Of course, inventory and equipment count. However, if you enter into debt and it is secured by you, the entrepreneur and not your company, it also counts; however, a loan to the company does not count as part of the investment. In other words, the amount invested should be actual. The money for the investment can come from an account that is in the wife and husband’s name. In other words, the laws having to do with marriage and community property do not apply. However, the account can only be with the husband and wife; not other members of the family. The investment can only be in one commercial enterprise, not several. A
If you are loaned money to make an EB5 Green Card investment, it has to be secured by your own property, as I mentioned above. It also must be available to be legally seized if you do not repay your debt. That is not possible (seizure of assets) in some countries and then would not apply. If you are loaned money to make this investment, you have to complete paying it back in the 2-year period of Conditional Residency. If you are loaned money from a bank, you cannot use the assets of the company as security. Also, reserves don’t count if they are not available for investment. Important: you must show the source of funds so that there is a guarantee of legitimacy.
A nice feature is that you can have multiple investors in an EB5 Green Card program. You can mix and match people wanting Green Cards with those who don’t want them.
FOR MORE INFORMATION If you are new to the USA, we created an information site for you; it explains everything from getting a mortgage to having fun in the U.S. and how/where it’s done. Finally, if you really want to understand immigration law, our DVD, US-Immigration-Explained covers every single visa and Green Card in easy language. If you purchase is and hire a lawyer from the referral site, you receive a full refund for the $49 DVD. Thank you for visiting our web site and we look forward to welcoming you as a client soon.
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