EB-5 Immigrant Visa For Employment Creation

EB-1 through EB-4 visa categories are for workers themselves. However, the Immigration Act of 1990 also created a new category of “employment-based” immigrant visas for employment creation (“EB-5”). The category allows issuance of permanent visas to qualified foreign nationals who will contribute to the economic growth of the U.S. by investing in U.S. businesses (“new commercial enterprises”) and by creating at least ten (10) full time jobs.

For an EB-5 visa the basic investment required, the qualifying investment amount, has been set at $1 Million for new commercial enterprises anywhere in the United States. However, if the EB-5 visa investment is made in a “targeted employment area” of the United States (typically a rural area or an area of very high unemployment), or with a USCIS approved Regional Center, the qualifying investment amount for the EB-5 visa has been reduced to $500,000.

To encourage legitimate applications for these “job creating” visas, the USCIS regulations say that this E-B5 visa will actually be issued on a so-called conditional basis. For a two-year period the USCIS actually “monitors” these visas. (This is different from other visa categories.) The conditional status will be removed by the USCIS after two years of “monitoring” when it determines that the foreign national entrepreneur has truly met the investment requirements and has actually created the requisite number of new jobs.

Luscutoff, Lendormy & Associates immigration attorneys advise that this visa category is not always limited to a single investor. The regulations have sometimes been interpreted so multiple investors may qualify for EB-5 investor visas by joining together to create one qualifying new commercial enterprise. The regulations require each investor in such a pool of multiple investors to have invested the required minimum capital amount. Bearing in mind that this is a “job creation” visa, the regulations require each individual investment to add  new full-time jobs to the enterprise. Caveat: The new jobs in most cases must be held by qualifying employees.

The regulations also require that the petitioner invest “legal” monies. To demonstrate that the investment capital is “legal”, he or she must trace the source of the investment money through tax returns, business records, bank statements, etc. Self serving statements about the petitioner's work history or financial situation, without written and document support, are not sufficient to meet this “legal capital” requirement. As you can imagine, supporting tax, income and other documentation must contain information concerning the “legitimate” origin of the investment funds.

Investment In Targeted Employment Areas. According to USCIS rules, if the new commercial enterprise is located one of the United State’s targeted areas, the minimum EB-5 visa investment has been reduced (from $1M) to $500,000. By definition, a targeted employment area is “an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 percent of the national average rate”. Final USCIS regulations go further and define a “rural” area to be a location that is not within the geography of either a location that is: (1) a metropolitan statistical area; or (2) within any city or town that has a population greater than 20,000. Note, please, that metropolitan statistical areas are defined by the U.S. Office of Management and Budget (OMB) using published Census Bureau data.

Investment In Regional Centers. Currently several dozens of Regional Centers have been approved by USCIS; and the actual number of approved Regional Centers changes constantly. A Regional Center is a designation, for purpose of the EB-5 visa that is awarded by the USCIS. Investments in USCIS-approved Regional Centers are permitted at the $500,000 level, i.e. reduced from the standard $1M level for EB-5 visas that is needed at locations elsewhere across the United States.

One of the main advantages of a Regional Center is that the reduced EB-5 investment has been pre-approved by USCIS and, in many cases with respect to aspects of the job creation requirement. As a result, for purposes of approval of the I-526 investor petition, the remaining issues are tracing the funds from the investor to the regional center and proving that the regulations have been well satisfied.