Would You Like to Immigrate to the United States Through Investment?

Introduction

For those people who have large sums of money that they would like to invest in the United States, Congress, in 1990, established the "employment creation" category. We don't always recommend the EB5 program where E, H, L or other visas may be available to individual investors. Simply because these other visas often offer a path to green card with less investment or more quickly than the EB5 path.

This category is not for everyone, but if you qualify, it may be possible to invest in the United States, make money, and obtain permanent residence at the same time. If after reading this article, you feel you are qualified to immigrate to the United States as an investor, you should contact our office.

$1 Million Investment

The first requirement is an investment of at least $1 million in capital. Without this amount, it is not possible to fit within this category. (However, a $500,000 investment is acceptable for rural areas and areas of high unemployment. Geographic areas of high unemployment are determined by each state.)

Qualifying investment capital includes cash, equipment, inventory, and other tangible property. It also includes indebtedness secured by assets of the investor. However, the assets of the new commercial enterprise cannot be used as security.

The investor must actually have invested $1 million or be actively in the process of making such an investment. Future plans of investment or uncommitted funds in a bank will not count.

New Commercial Enterprise

The law requires that a new commercial enterprise or business be established with the invested capital. Such a business can be established in four different ways:

  • Creating an original business - This means developing a business where none was there before.
  • Purchasing and restructuring an existing business - Changing a business from a sole proprietorship to a corporation may be enough to constitute restructuring, however, ten new jobs must also be created.
  • Expanding, and thereby substantially changing the net worth and number of employees in a business. The investment must provide at least a 40% addition in the net worth of the company or a 40% increase of employees.
  • Investing in a troubled business. A troubled business is a business that has lost 20% of its net worth in the last four months. The company must have at least ten employees, which the investor must maintain. There is no requirement to create ten new additional positions.

In addition to creating a new commercial enterprise, the EB-5 Program requires the immigrant investor to be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or through policy formulation. It is not enough that the immigrant investor maintain a purely passive role in regard to his or her investment.

"Regional Centers", approved by USCIS, offer another way to be an immigrant investor. A regional center promotes economic growth through capital investment, creator of new jobs, improve regional productivity centers including agricultural projects, hotels, dairy farms, assisted-living facilities, etc. They are located throughout the U.S. A favorable aspect of a regional center is that, even though the investor's active involvement is limited, allowing free time to pursue other business endeavors or other interests.

Employment Of At Least Ten Full Time U.S. Employees

As important as the actual investment, is the requirement that the investment create full time employment for at least ten U.S. workers. Although the investors' spouse and children may be employed, they cannot be counted toward the ten positions. Independent contractors do not count nor do part time jobs.

For a new commercial enterprise located within a regional center, the full-time positions ​can be created​ either directly or indirectly by the new commercial enterprise. ​​

  • Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
  • Indirect jobs are those jobs held outside of the new commercial enterprise but that are created as a result of the new commercial enterprise.

Conditional Permanent Residence

Upon establishing the necessary requirements, the investor is granted conditional permanent residence for two years. At the end of two years, a new set of papers must be filed with the C.I.S. in order to have the conditional residence changed to permanent residence. Final permanent residence will not be granted if:

  • The new business was established solely to evade immigration laws;
  • The investor failed to invest the requisite capital or sustain the investment for two years, or
  • The investor failed to meet the requirements of the other provisions of the employment creation statute.

The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of information.

This answers most of the frequently asked questions which we receive in our office. If after reading this you have questions about immigrating to the United States or any other immigration matters, please call Litwin & Smith and arrange a consultation at either our South San Francisco, or Santa Clara office. There is an initial consultation fee for the first half-hour.