EB-5 INVESTMENT IMMIGRATION

EB-5 Investment Immigration (or “EB5”) is an U.S. immigrant visa (“Green Card”) offered to foreign nationals who makes an investment in the United States. To those who have the means, it is among the fastest and most convenient method to obtain a Green Card. In addition to providing Green Cards to foreign investors (and family), it can also be an attractive financing option for project developers and business owners. This introductory outline will provide an overview of the EB-5 requirements, the petition process, and samples of its application.

I. GENERAL REQUIREMENTS FOR EB-5

To qualify for the EB-5 Green Card, the foreign national must invest a minimum of $500,000 or $1,000,000 USD in a for-profit business in the United States. There is no restriction on the type of business so long as it can generate at least 10 full-time jobs for U.S. workers. By meeting these qualifications, Green Cards can be obtained for the investor, his or her spouse, and any unmarried children under the age of 21.

Minimum Investment Amount

There are two important variations that determine the minimum investment amount and the process of job creation. Whether the minimum investment is $500,000 or $1,000,000 depends on the business or project’s location. If it is located in a designated area called a “Target Employment Area” (“TEA”) then the lower investment amount of $500,000 can qualify. If it is not, then the minimum investment must be $1,000,000. Under the current regulatory standards, it is typically not difficult to obtain a TEA designation.

Job-Creation

There are also two main variations for calculating job creation. The first is known as the “Direct Job”. This means counting individual human workers who work at least 35 hours per week. If the EB-5 investment relies only on Direct Job-creation, then each investor must generate and maintain at least 10 jobs for individual U.S. workers. In order to improve the EB-5 capacity for project finance, Congress implement a “test” program involving the establishment of “Regional Centers”. These Regional Centers are designated by the U.S. government to oversee qualified EB-5 projects and pool investments from foreign investors.

General Requirements, Continued

The investments pooled by Regional Centers are not required to rely on Direct Job Creation. This means each investor does not have to establish the hiring of 10 individual U.S. workers. Instead, they can meet the job creation requirement through “Indirect Jobs”. These jobs are determined through econometric modeling based on certain inputs involving expenditures of the project or business. In other words, it is an estimate of the economic impact of a project on a region.

The Regional Center, when operated correctly, can be beneficial to both the investor and the project owner. From the investor’s perspective, the Regional Center acts as a business or investment manager. They are responsible for the day-to-day decision making and ensuring that the project continues to satisfy EB-5 requirements. This allows the investor to take on a more passive role similar to that of a limited partner. For the project owner, they can raise more funds through a regional center because they are no longer restricted to only Direct-Job creation.

The concepts within this section will be further illustrated in subsequent sections. For now, the key points to keep in mind are:

  • Minimum Investment Amount : $500,000 or $1,000,000 depending on whether the investment is made in a Target Employment Area ( or TEA ).
  • Job Creation : The Investment must create at least 10 full-time jobs for U.S. works. The jobs can be created through direct employment of individual works or based on an economic formula that estimates indirect impact at a project or business on a region’s economy.
  • Indirect Job Creation : Regional Center Investments can utilize indirect Job Creation which reduces the work required of investors increase the amount of EB-5 financing raised for a project.
  • Green Cards Available : Based on the EB-5 Investment, the investor, his or her spouse, and any unmarried children under the age of 21 can obtain a Green Card.
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II. EB-5 PETITION PROCESS & TIME FRAME

There are three key steps to the EB-5 petition process. The first, is the Petition “I-526”, which is known as the Immigrant Petition for Alien Entrepreneur. This petition documents that the project qualifies for EB-5 and that the investor’s funds are derived from a lawful source. In other words, it needs to show that the EB-5 project or business can generate at least 10 full-time jobs for U.S. workers, and it also shows how the investor earned the $500,000 or $1,000,000 used for the investment.

Once the I-526 is approved, the investor can apply for the Green Card for his or herself and for the immediate family. If the investor and family are in the United States, this process can be done through an adjustment of status. If they are overseas, this would be processed through a designated U.S. consulate. The family members that can be included are the spouse and any unmarried children under the age of 21.

Often, investors wish to obtain Green Cards for their children and not necessarily for themselves. In these cases, it is important to consider the age of the children at the time the I-526 is filed. This is because the processing of the I-526 can take some time and the age of the children need to be under 21 when the I-526 is approved.

Therefore, if a child is near age 21 at the time the I-526 is being filed and the parents have no immediate need or desire to come to the United States, then it maybe more prudent to make the child the primary applicant on the petition.

Example: Investor’s 20 year old daughter wish to study and work in the United States. However, the Investor has a thriving business in the home country and has no immediate desire to relocate. The Investor can gift the investment amount to the daughter, and the daughter can be the primary applicant for the EB-5 investment.

After the investor (and or family) completes adjustment of status or consular processing, he or she would obtain a conditional permanent resident status (or “Conditional Green Card”). The Conditional Green Card is same as a normal Green Card with the exception of one requirement: the investor must maintain the investment and job creation for a period of two years. Near the end of that two year period, the investor needs to do an additional filing to remove the condition and obtain the final Green Card.

Petition Process, Continued

The final filing to remove the conditions is known as the I-829 (or the “Petition by Entrepreneur to Remove Conditions on Permanent Resident Status”). The primary component of this petition involves documenting that the required jobs were created by the investor. For a Direct Job-creation project, the investor must show that the employment of at least 10 U.S. workers has been sustained. For projects relying on Indirect Job-creation, the investor would need to show that the project has been completed in accordance with the estimated expenditures. (In other words, the project spent the money in the region like it said it would.) With the approval of the
I-829, the investor (and or family) would receive permanent resident status (Green Cards) in the United States. Furthermore, the investment can be returned by the project to the investor.

It is important to note the that the complete timeframe of the EB-5 will differ depending on the processing time of the USCIS and the country of birth of the investor. Generally speaking, so long as the investor is not born in mainland China, conditional permanent residency can be achieved in about 1.5 to 3 years. From the time of making the investment to final Green Card and investment return will take an estimated 6 years for non-mainland Chinese investors.

Summary of the Petition Process

  • I-526 Petition for Alien Entrepreneur; This includes project qualification and investor’s source of funds.
  • Adjustment of Status/Consular Procession : Conditional Green Cards can be obtained through adjustment of status if the investor is in the United States, or through consular processing if the investor is overseas.
  • I-829 Petition to Remove Conditions : This is filed with two years of obtaining the conditional Green Cards. This petition needs to show that sufficient jobs were created by the investment.
  • Investment Return : After the I-829 is successful, the investor may request the return of the investment funds in addition to pay accumulated gains.

III. Sample EB-5 Applications

The Day Care Facility

A developer in the United States wish to build and operate a day care facility in Edge water, New Jersey. The project has a total cost of $75 million, which shall be applied towards land acquisition and construction. Once completed, the day-care facility aims to employ 40 full-time workers. On that basis, the project would be able to support a total of four EB-5 investors.

The developer conducts an analysis of the location of the project and finds that it qualifies as a Target Employment Area. This means the EB-5 investors can now invest based on the minimum $500,000. The total amount raised from the EB-5 investors is $2,000,000. Therefore, the developer can finance up to $2,000,000 of the $75 million with EB-5 based on the direct jobs created.

The individual investors evaluate the project business plan, financials, and terms of the offering. Upon their satisfaction, they execute the project’s subscription and operating agreements, and transfer the investment amount to an escrow account set up for the investment. The investor prepares the I-526 with the attorney and submits the filing. Within 2 weeks, the USCIS issues a receipt notice acknowledging that the I-526 petition has been received. The notice is provided to the escrow bank, and the funds are released to the EB-5 project.

The I-526 is approved after a period of 18 months adjudication by USCIS. With the approval notice, the investor submits for consular processing for the family. Upon completing the consular process, the investor and the family enters the United States as conditional permanent residents (conditional Green Cards).

After two years of obtaining conditional permanent residence, the investor submits the I-829 to remove the conditions. The I-829 properly documents that the project was completed according to plan and a total of 45 full-time U.S. workers were hired and are still employed. Based on that finding, the investor obtains final permanent residence. The project, due to having operated successfully, can now return the investor’s initial investment of $500,000 from its cash reserve along with any accumulated gains attributable to the investor.

Mixed-use Real Estate Development

A national development company wish to construct a mixed-use residential high-rise and retail in downtown, New York City. The total project cost is estimated at $75 million; of which, $50 million constitutes hard construction expenditures. Since this is a pure real estate development, there is little to no direct jobs after the completion of the construction. In order to secure EB-5 financing, the developer obtains a sponsorship by a local Regional Center. With the help of the Regional Center, the project can estimate an Indirect Job count through an econometric model. Based on the hard construction costs, and the period of construction, the econometric model indicates at least 500 jobs would be created in the region as a result of the new project. Furthermore, it is determined that the project is located in a Target Employment Area (as designated by the State of New York). As a result, the developer can raise up to 50 investors with $500,000 per investment, which totals $25 million in EB-5 financing. Similar to the example above, the investor (having reviewed the project documents) invests the $500,000 into an escrow account of the project. Those funds are distributed to the project upon receiving a notice from USCIS that the I-526 has been filed. After the I-526 approval, the investor then undergoes consular processing or adjustment of status to obtain the conditional Green Card.

Two years after obtaining the conditional Green Card, the investor applies for the I-829. At this point, instead of showing individual jobs were created and sustained the investor just needs to show that project was successfully constructed in accordance to plan and budget. Based on that finding, the investor would be able to obtain an approval of the I-829 and obtain the final Green Card. At that point, the investor would be eligible to receive a return of the initial $500,000 investment in addition to any accumulated gains attributable to the investor.

Note: Notice that the two projects had the same total project cost of $75 million. However, the latter project was able to generate more EB-5
financing and produce more jobs. This is the result of utilizing the indirect job count. This is not to say the latter is always better, as direct
job-count projects have their own benefits to offer investors; including, greater degree of control for investors who wish to take on a more
active role.

DISCLAIMER

No recipient of content from this document, client or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. The content of this website contains general information and may not reflect current legal developments, verdicts or settlements. All liabilities are disclaimed in respect to actions taken or not taken based on any or all the contents of this document

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