EB-5 Immigrant Investor

What is EB-5 Immigrant Investor visa?

In general, under the EB-5 program, individuals are eligible to apply for lawful permanent residence in the United States if they make the necessary investment in a commercial enterprise in the United States and create or, in certain circumstances, preserve 10 full-time jobs for qualified United States workers.

General Requirements

1. Commercial Enterprise

All EB-5 investors must invest in a new commercial enterprise. Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business, including:

• A sole proprietorship;
• Partnership (whether limited or general);
• Holding company;
• Joint venture;
• Corporation;
• Business trust; or
• Other entity, which may be publicly or privately owned.

This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, if each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

This definition does not include noncommercial activity, such as owning and operating a personal residence.

2. Job Creation Requirements

An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees.

• For a new commercial enterprise not located within a regional center, the new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly ownedsubsidiaries) must itself be the employer of the qualifying employees.
• For a new commercial enterprise located within a regional center, the new commercial enterprise can directly or indirectly create the full-time positions.
  • Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
  • Indirect jobs are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise.
• In the case of a troubled business, the EB-5 investor may rely on job maintenance.
  • The investor must show that the number of existing employees is, or will be, no less than the pre-investment level for a period of at least two years.

3. Capital Investment Requirements

Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by immigrant investors, if they are personally and primarily liable and the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital will be valued at fair-market value in U.S. dollars.

Note: Immigrant investors must establish that they are the legal owner of the capital invested. Capital can include their promise to pay (a promissory note) under certain circumstances.