IMMIGRATION THROUGH INVESTMENT

IMMIGRATION THROUGH INVESTMENT

I. EB-5 IMMIGRANT INVESTORS (Green-Card through investment.)

OVERVIEW

EB-5 allows foreign investors to obtain green-card and is available 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 the amount may be $500,000 if the investment is made in a “targeted employment area”. Targeted area means specific area designated by the government and is described in details below.

REQUIREMENTS

To qualify under the EB-5 category:

1) The investor must invest at least $1 million ($500,000 if in a targeted area). This can be done through (a) creating a new business; (b) Buying an existing business; (c) expanding an existing business. If the investment is made in a “targeted employment area” then the required amount of investment is $500,000.

2) The investment must benefit the U.S. economy.

3) Create full-time employment for at least 10 U.S. workers. These 10 workers must be either U.S. citizens, green-card holders, or other immigrants authorized to work in the U.S. The investor, his/her spouse, or children do not count towards this requirement. One exception to this requirement is the investment in regional centers as described above – then the requirement is not to hire directly 10 U.S. workers, but at least to show that 10 or more jobs will be created indirectly due to the investment.

Note: There is a big incentive for investing in a “troubled business”. If you do invest in a troubled business, you do not need to create 10 full-time positions but rather only maintain those that exist currently. A troubled business is one that has been in existence for at least two years, has incurred a net loss for accounting purposes during the 12- or 24 month period before the petition was filed, and the loss for such period is at least equal to 20 percent of the business’s net worth before the loss. To establish an investment in a troubled business, we must show that the number of existing employees will be maintained for at least two years.

4) Play an active role in managing the enterprise. This means that simply buying shares of stock of a U.S. company is not enough. The investor must be involved in the management. The requirement is that the applicant enters the United States to engage in a new commercial enterprise. To qualify, an investor must maintain active role in the new enterprise

5) Finally, the petitioner must prove that the capital for investment is obtained through lawful means. The applicant must submit: business registration records, last five years of tax returns, and evidence of other sources of capital. The petitioner must show as much as possible to prove that the funds for the investment were lawfully obtained by demonstrating documentations as applicable.

THE PROCESS

Business Activities

Formation. The process will start with creation of a new commercial enterprise. You must establish a corporation in the state of the intended investment. The applicant will be a primary shareholder. This can be done any time even before the actual funds are invested, any contracts are signed, and any business activity is undertaken, as long as there is a U.S. resident who will be assigned as the manager of the corporation.

Market Research. After the enterprise is created, we must explore the investment options. As a first step in the process of investment, the investor will indicate the areas of interest (types of business) and we will prepare comprehensive market research, analysis, and business plan in those areas of interest. The analysis will specify all government imposed requirements, such as licensing, tax information, and anticipated expenses.

Business Transactions. Upon collaborative decision on the type of investment, our firm will provide legal services in dealing and negotiating commercial leases, business acquisitions, employee hiring, inventory transactions, or any other transactions that will be need to have the business up and running.

Legal Fees for Business Services: The applicant is always free to hire services of another lawyer or law firm for all these purposes. If the investor would prefer that my firm, in addition to immigration side of the case, provides legal services for all business matters as well, we will charge legal fees at our discounted rate.

Immigrant Visa Application

Application Process: After the business is substantially created, and a specific business strategy is designed, we can start the immigration process. We will do research, collect all necessary documentation about the investment, collect information about the intended immigrant, complete forms, and submit everything to the United States Citizenship and Immigration Services (USCIS). The processing of applications for EB-5 visa now takes approximately 6-7 months.

Upon approval of the petition, the applicant will receive a two-year conditional permanent residency (green-card). If the applicant is in the U.S. under some other status when the application is approved her status can be changed to that of a permanent resident while in the U.S. If the applicant is outside the United States, then the green-card will be obtained through a U.S. Consulate post.

After the two years of entry into the United States, the applicant must apply to remove the conditions. The application to remove the conditions must be accompanied by evidence that the individual invested or was in the process of investing the required capital, and that the investment created or will create 10 full-time jobs. The applicant will satisfy this condition if during the first two years the investor maintained her investment activities and has already invested substantial portion of the required amount. After the conditions are removed, the applicant and her immediate family members become permanent U.S. residents with no conditions attached. Accordingly, after 5 years of continuous residence they can apply for U.S. citizenship.

I. E-2 VISAS FOR INVESTORS IN SMALLER BUSINESSES

OVERVIEW

The E-2 non-immigrant category requires less investment and no job creation. It is an alternative to the EB-5 immigrant investor category. In many ways, the E-2 classification is similar to a green-card. The holder of an E-2 visa, his/her family, and employees are allowed to enter and leave the U.S. as much as needed, as long as the business exists. The E-2 holder may engage in self-employment (in furtherance of the qualifying investment), may remain in the U.S. for an indefinite period, and are not required to maintain ties to their home country.

REQUIREMENTS

1) The investor must be a citizen of the treaty county.

2) The investor must have possession and control of the funds invested. The source of the funds does not need to be outside the U.S., i.e. it can be a gift from someone in the U.S.

3) The investment must be at risk. This means that just putting the money in the bank account does not qualify as investment. It must involve some enterprise, something that can be at risk, i.e. a business that can be closed if things don’t go that well.

4) The investment must be committed. This means that one cannot just show money in the bank account and claim investment. The money must be either spent for the business, or there must be contracts with customers or vendors showing commitment. For example, a one year lease contract for show-room or office will be enough to show that the amount of that one year lease is committed as investment.

5) The business must be a bona fide commercial undertaking. This means that we need to show that the business is not created solely for immigration purposes. This requirement is satisfied with showing that the actual business is being undertaken, office is leased, entity is formed, business plan exists, contracts are made etc.

6) The investment must be substantial. There is no special figure. This amount may vary depending on the type of the business. For example, if your business investment is opening a car dealership, the investment of $100,000 will probably not be sufficient.

7) Investment must not be marginal. This means that the investor must have bigger plans, i.e. the business is not only to earn living, but to expand and grow. This is done by preparing a business plan, and showing the evidence that the business will continue growing.

8) Finally, the investor must have ability to develop and direct the business। This is proven by showing evidence of the investor’s prior experience, education and skills relevant to managing the intended business.

This blog and its contents has been prepared for informational purposes only. Nothing herein is intended as legal advice nor should you rely upon any information in this blog as a source of legal advice. Receipt of any such information by you does not create an attorney-client relationship between you and any attorney associated with this blog.