Visa Law Group | Immigration Lawyers, Visa Solutions

General Overview

The Visa Law Group is recognized as one of the leading immigration law firms in the United States with hands-on experience in the EB-5 program. Since 1997, our firm has been representing foreign EB-5 investors (from Korea, Taiwan, Hong Kong, China, Middle East, South America, as well as Eastern and Western Europe).

We have obtained conditional Green Card status more than 150 individual entrepreneurs. In the past 24 months, we have successfully represented EB-5 investors from 20 different countries.

David Morris, Esq. of Visa Law Group has been a regularly invited speaker on EB-5 investor visa law topics – including national conferences sponsored by the American Immigration Lawyers Association (AILA) and Immigration Law Weekly (ILW) the leading immigration daily journal. His recent article on EB-5 law appeared in the October 2009 issue of Bender’s Immigration Bulletin published by LexisNexis.

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The EB-5 Immigrant Investor program allows foreign entrepreneurs to obtain permanent residence based upon a qualifying investment in the United States. This program is also known as the “employment creation visa” because making an investment is only part of the program; in fact, the other equally important criteria is that the entrepreneur’s investment must result in the creation (or sometimes even the preservation) of ten or more full-time, permanent jobs in the United States for local workers. (This is very different then the E-2 Nonimmigrant Investor program)

This immigrant program has been the subject of major restructuring by the CIS and the United States Congress during the last five years. And while eligibility rules have become exceptionally complex, the EB-5 program continues to offer a viable vehicle for certain investors seeking Green Card status.

Our scope of our representation includes initial project review, coordination of the source/path of funding, filing the Form I-526 Petition for Immigrant Investor, attending immigrant interviews at various US Embassy/consulates, and filing Form I-829 Petition to Remove Conditional Status.

Key Factors

The EB-5 program is an exceptionally complex area of law and applying in this classification should be made only after having completed a very detail analysis of the many evidentiary requirements. In general, the program has the following basic eligibility criteria:

1. Amount of Capital

The amount of capital required to be invested varies depending upon the location of the proposed investment. If the investment enterprise will be located in a "targeted" area, then the foreign national is required to invest capital of at least $500,000. Three thousand of the 10,000 visas allotted for the entire immigrant visa category are set aside for targeted investment. Targeted investments are investments made in either rural or high unemployment areas.[1] If, however, the investment (and related job creation) will not be located in a targeted area, then the qualifying investment capital must be at least $1 million.

2. Type of Capital

The regulations define capital as “cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur.” The recent changes in the law focus upon the type of capital the investor will use to meet the requirements. Generally, the CIS requires full capitalization at or before the time of visa issuance. This is a major update in the rules eliminating many forms of previously approved debt instruments and promissory notes.

3. Qualifying Investments

There are three types of recognized qualifying business investments in investor visa category: the new commercial enterprise, the expansion of an existing business, and the rehabilitation of a troubled business. They are defined as follows:

The "new commercial enterprise" which is the creation of an original business or the subsequent or simultaneous restructuring of an existing business, such that a new commercial enterprise results. The regulations exclude non-profit organizations and charitable organizations from this category.
The expansion of an existing business through the investment of the requisite amount such that a 40% increase in either the net worth or the number of employees results. The expansion must cause at least a 140% increase in either the pre-expansion net worth or number of employees.
The "troubled business" investment requires a requisite amount in a business which has been in existence for at least two years. For a period of 12 to 24 months prior to the filing of the petition, the business must show a loss of profit equal to 20% of the business's net worth.

4. Job Creation

A qualifying investment must result in the creation or preservation of employment for at least ten workers. The ten workers must be United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed. These positions cannot be held by the investor his or her spouse or children, and the position must be at least 35 hours per week. If actual creation the 10 new jobs are not documented at the time of filing the Form I-526 Petition, then the CIS requires the submission of a detailed business plan which describes exactly how and when these jobs will be created within two years from the date of the investment.

5. Investor Management

Under the regulations, the investor must be "active" in the management of the investment. The investor must engage in the management of the new commercial enterprise, either through day-to-day managerial control, or through policy formulation. However, the regulations do allow the investor to be "limited partner."

Our Experience

The lawyers at Visa Law Group regularly help foreign investors prepare and file comprehensive EB-5 Immigrant and E-2/E-1 Nonimmigrant visa applications. If you need legal advice or help with this visa program, please feel free to contact us at Morris@VisaLawGroup.com.