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INVESTOR IMMIGRATION

United States laws allow for foreign investors to live and work either temporarily or on a permanent basis in the United States. Obtaining immigration benefits through investment is among the most complex areas of US immigration law. The attorney or team you retain should be experienced in both immigration and business law to guide you through the various options and explain potential pitfalls. A High Net Worth foreign national would be wise to consider estate and tax consequences before embarking on this journey. An experienced team should be able to provide an intended investor with the path to assess various aspects of immigration through investment.

However, once you are qualified and have decided to pursue this avenue, you will discover that it is one of the faster ways to gain permanent residence. Furthermore, given the current weak US dollar, investment of $500,000 plus associated fees implies that even those of more modest means may be eligible for what was once referred to as the "millionaire green card".

Temporary Options

E-2 Treaty Investor

In addition to the usual H, L and O temporary options that are commonly used and discussed elsewhere on this site, the E-2 Treaty Investor may be an option worth considering.

The E-2 classification is authorized for a foreign national who is coming to the United States solely to direct and develop the operations of an enterprise in which the individual has invested - or is actively involved in the process of investing- a substantial amount of capital.

The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and it must be subject to loss if the investment fails. These criteria are subject to a thorough digestion by an immigration attorney as to what exactly each one of them means according to USCIS immigration laws and regulations.

If the foreign national is already in the United States, the individual must submit Form I-129 (Petition for a Non-Immigrant Worker) to the USCIS to request a change of status or extension of stay. If the foreign-national is outside of the United States, he or she must apply for an E-2 visa at a U.S. consular office abroad. The E2 visa - as opposed to any other professional visa - may be applied for at the embassy without USCIS adjudicating it first.

Permanent Resident Options

EB-5 Immigrant Investor

The fifth employment-based visa preference category, created by Congress in 1990, is available to immigrants seeking to enter the United States in order to invest in a new commercial enterprise that will benefit the US economy and create at least 10 full-time jobs. There are two ways to invest which you may use within the EB-5 category, and they are (1) creating a new commercial enterprise or (2) investing in a troubled business.

Eligibility Criteria

New Business Enterprise

To qualify you must:

  1. Invest or be in the process of investing at least $1,000,000. If your investment is in a designated targeted employment area (discussed further below) then the minimum investment requirement is $500,000.
  2. Benefit the U.S. economy by providing goods or services to U.S. markets.
  3. Create full-time employment for at least 10 U.S. workers. This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however it does not include you (the immigrant), or your spouse, sons or daughters).
  4. Be involved in the day-to-day management of the new business or directly manage it through formulating business policy - for example as a corporate officer or board member.

Targeted Employment Area is defined by law as "a rural area or an area that has experienced high unemployment of at least 150 percent of the national average."

Troubled Business

To qualify you must:

  1. Invest in a business that has existed for at least two years.
  2. Invest in a business that has incurred a net loss, based on generally accepted accounting principles, for the 12 to 24 month period before you filed the Form I-526 Immigrant Petition by an Alien Entrepreneur.
  3. The loss for the 12 to 24 month period must be at least equal to 20 percent of the business's net worth before the loss.
  4. Maintain the number of jobs at no less than the pre-investment level for a period of at least two years.
  5. Be involved in the day-to-day management of the troubled business or directly manage it through formulating business policy. For example, as a corporate officer or board member.
  6. The same investment requirements of the new commercial enterprise investment apply to a troubled business investment ($1,000,000 or $500,000 in a targeted employment area).

Please note that the 24 months period in the qualification criteria listed above is what the USCIS is considering when evaluating whether business fits in the definition of a "troubled business".

Regional Center Pilot Program

Investment in Regional Centers is allowed to be of a smaller amount than the average individual, direct investment. A candidate still must qualify to utilize an avenue that a Regional center offers. To qualify, one must:

  1. Invest at least $500,000 in a regional center affiliated new commercial enterprise or a troubled business located within the area of the USCIS designated Regional Center. Regional Centers are defined and discussed further below.
  2. Create at least 10 new full-time jobs either directly or indirectly (using reasonable methodology) through the capital investment.

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The organizers of a regional center seeking the regional center designation from USCIS must submit a proposal showing:

  • How the regional center plans to focus on a geographical region within the U.S., and must explain how the regional center will achieve the required economic growth within this regional area
  • That the regional center's business plan can be relied upon as a viable business model grounded in reasonable and credible estimates and assumptions for market conditions, project costs, and activity time lines
  • How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center's business plan
  • The amount and source of capital committed to the project and the promotional efforts made and planned for the business project.

A complete list of currently approved Regional Centers is available on the USCIS website.

EB5 Application Process

Acquiring lawful permanent residence ("Green Card") through the EB-5 category is a three step self-petitioning process (meaning, you do not have to have a job offer). First, a successful applicant must obtain approval of his or her Form I-526 (Petition for an Alien Entrepreneur) (with or without using a Regional Center). Second, he or she must either file an I-485 application to adjust status to lawful permanent resident, or apply for an immigrant visa at a U.S. consulate or embassy outside of the United States. The EB-5 applicant (and his or her immediate family members) are granted conditional permanent residence for a two- year period upon the approval of the I-485 application or upon entry into the United States with an EB-5 immigrant visa. Third, a Form I-829 (Petition by an Entrepreneur to Remove Condition) must be filed 90 days prior to the two year anniversary of the granting of the EB-5 applicant's conditional Green Card to demonstrate that the investment was sustained. If this petition is approved by USCIS, then the EB-5 applicant will be issued a new Green Card without any further conditions attached to it, and will be allowed to permanently live and work in the United States.

Please Contact Us to schedule a consultation to discuss US immigration options that may be available to you through investment. Please visit our firm's other website and blog, www.americainvestorvisa.com , a site exclusively devoted to investor immigration

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