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Congress created the fifth employment-based preference (EB-5) immigrant visa category in 1990 for immigrants seeking to enter to engage in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. The basic amount required to invest is $1 million, although that amount may be $500,000 if the investment is made in a ‘targeted employment area.’ Of the approximately 10,000 numbers available for this preference each year, 3,000 are reserved for entrepreneurs who invest in targeted employment areas.The statutory requirements of the EB-5 visa category are difficult. At most only about 1,000 people a year have immigrated in this category, just one-tenth of the visas available. It is estimated that USCIS approves only about 15 percent of EB-5 petitions.Statutory RequirementsTo qualify under the EB-5 category,[link widoczny dla zalogowanych], the new enterprise must: ?Be one in which the person has invested (or is in the process of investing) at least $1 million (or at least $500,[link widoczny dla zalogowanych],000 if investing in a ‘targeted employment area,’) after November 29, 1990?Benefit the U.S. economy; and?Create full-time employment for at least 10 U.S. workers. Moreover,[link widoczny dla zalogowanych], the investor must have at least a policy-making role in the enterprise. Qualified ImmigrantsOutside of the investment and employment requisites, the statute does not specifically address who may be a qualified applicant. The USCIS appears to preclude corporate or other nonindividual investors from this category. However, two or more individuals may join to make an EB-5 investment. A single ‘new commercial enterprise’ may be used for investor/employment-creation classification by more than one investor, provided that:?Each petitioning investor has invested (or is actively in the process of investing) the required amount; and?Each investment results in the creation of at least 10 full-time positions for qualifying employees. The New Commercial EnterpriseThere are two basic requirements for showing a new commercial enterprise. First,[link widoczny dla zalogowanych], the enterprise must be ‘new,[link widoczny dla zalogowanych],’ i.e., formed after November 29,[link widoczny dla zalogowanych], 1990. Second, it must be a ‘commercial’ enterprise. Any for-profit entity formed for the ongoing conduct of lawful business may serve as a commercial enterprise. This includes sole proprietorships, partnerships (whether limited or general), holding companies, joint ventures, corporations, business trusts, or other entities publicly or privately owned. However, the term ‘new commercial enterprise’ does not include noncommercial activity, such as owning and operating a personal residence or nonprofit enterprise.?Creating an Original Business: In 2002 Congress eliminated the ‘establishment’ requirement for EB-5 investors. Instead of proving that they have ‘established’ a commercial enterprise themselves, investors now need only show that they have ‘invested’ in a commercial enterprise.?Buying an Existing Business: By reorganizing or restructuring an existing business, an investor may create a ‘new commercial enterprise’ and therefore qualify for a visa. The statute and regulations provide little insight into what degree of restructuring or reorganization must be done to establish a new enterprise. The AAO has held that simply changing the legal form of the enterprise does not satisfy this requirement. Regardless of the forms used to create a new enterprise, the focus of the law is on the creation of at least 10 new employment opportunities. Investments creating a new enterprise but failing to create 10 new jobs will also fail to qualify for EB-5 classification.?Expanding an Existing Business: An investor can also create a new enterprise by expanding an existing business. Only an expansion resulting in an increase of at least 40 per cent in the net worth of the business or in the number of employees of the business will satisfy the visa requirements. This could require the investor to create more than 10 new jobs to qualify for a visa. The larger the business that the investor expands, the more onerous his or her burden to qualify for a visa under this standard. However, an investor need not show that his or her investment alone caused the 40 per cent increase.?Pooling Arrangements: The regulations specifically allow immigrant investors to pool their investments with others seeking EB-5 status. Each investor is required to invest the applicable statutory amount. All of the new jobs created by the new commercial enterprise will be allocated among those within the pool seeking permanent investor visas. Benefiting the U.S. EconomyThe statute requires that investments ‘benefit the U.S. economy’ to qualify the investor for an EB-5 visa or status. The statute provides no guidance on which investments benefit the economy. This silence means USCIS adjudicators are left to their subjective interpretations of the investment and its relative benefits when reviewing the petition. Arguably, the petitioner has benefited the economy by merely meeting the employment and investment requirements of the visa classification. However, because the statute specifically identifies the ‘benefit’ element as distinct from other components of the visa, it appears that the applicant must independently show that the enterprise, in the conduct of its business, will benefit the U.S. economy. Therefore, a consulting firm exclusively serving customers abroad with no return benefit to the U.S. economy (other than employing the requisite number of workers), might not support an EB-5 petition. In contrast, showing that the new enterprise provides goods or services to U.S. markets should satisfy this requirement.Creating or Saving JobsTo qualify for EB-5 status, an investment normally must create full-time employment for at least 10 U.S. citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the U.S. Neither the investor nor the investor’s spouse and children count toward the 10-employee minimum. Nonimmigrants are also excluded from the count. The ‘other immigrants’ provision means that conditional residents, temporary residents, asylees,[link widoczny dla zalogowanych], refugees, and recipients of suspension of deportation or cancellation of removal may all be considered employees for EB-5 purposes.The regulations define an ‘employee’ for EB-5 purposes as an individual who provides services or labor for the new commercial enterprise and receives wages or other remuneration directly from the new commercial enterprise. This definition excludes independent contractors.?The Types of Jobs: The jobs created must be full-time. This means employment of a qualified employee in a position that requires a minimum of 35 working hours per week, regardless of who fills the position. Job-sharing arrangements, where two or more qualifying employees share a full-time position, will also serve as full-time employment if the hourly requirement per week is met. Job-sharing does not include combinations of part-time positions even if when combined such positions meet the hourly requirement per week.?Where the Jobs Must be Located: When enacting the EB-5 program,[link widoczny dla zalogowanych], Congress took an affirmative step toward creating jobs in the geographic areas that need them most. The statute sets aside 3,000 of the approximately 10,000 EB-5 visas available annually for foreign citizens who invest in ‘targeted employment areas.’ The statute defines a ‘targeted employment area’ as a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.?When the Jobs Must Exist: The law is unclear about when new jobs must exist. The statutory language is prospective and therefore does not require jobs to exist at the time of initial investment or before the I-526 petition is filed. A petitioner may support a petition with a comprehensive business plan demonstrating a need for at least 10 employees within the next two years. The business plan need only indicate the approximate dates during the following two years when the employees will be hired. The temporary vacancy of a position during the two-year conditional period does not disqualify an investor, as long as good-faith attempts to re-staff the position are made. ConclusionThe EB-5 immigrant visa is one of the most complicated categories in immigration law. In many cases it may be more practicable for investors to come to the U.S. through other visa categories such as the E-2 investor, L-1 intra company transferee, or EB-1.3 multinational executive or manager routes. Despite the complexities, we have successfully helped investors obtain the EB-5 immigrant visa. We will be glad to help you with the EB-5 process if its the best option for you. Contact VisaPro if you have any questions regarding any type of employment based immigration including investment based Green Cards. VisaPro covers the latest happenings on investor visas in Immigration Monitor, monthly newsletter. Click here to subscribe to Immigration Monitor.
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