• October 2010

Foreign Entrepreneurs + The EB-5 Immigrant Investor Program

By Steve Trow
Attorney / Owner / Founder
Trow & Rahal, P.C.

Getting a green card can be a long and frustrating journey for many applicants. Most will need a sponsor — a U.S. employer with a full-time job offer or a close family member who is a U.S. citizen or permanent resident.

Most job-based applicants will need labor certification — an arduous process to prove that there are no U.S. workers who can do the job. Labor certification takes one to three years, and in the current job market the outcome is highly uncertain.

There is a limited annual supply of green cards, with long backlogs for many applicants – six to eight years for skilled workers and professionals, five to eight years for adult sons and daughters of U.S. citizens, and nine years for brothers and sisters of U.S. citizens.

Fortunately, there is a way to get a green card that does not require a sponsor or labor certification and can be completed in about a year — the EB-5 visa for immigrant investors.

This visa is available to foreign nationals who invest money in a U.S. business and create or preserve jobs for U.S. workers. To obtain an EB-5 visa, an applicant must invest at least $500,000 and create or preserve at least 10 jobs for U.S. workers. The investor’s spouse and unmarried children can obtain EB-5 visas based on the same investment.

The Three-Step Process

There are three steps required to obtain a permanent green card based on investment. After completion of step two, the investor will receive a conditional green card valid for two years. Once step three is complete, the investor will receive a permanent green card.

Step 1: Filing Proof of the Qualifying Investment and Source of Investment Funds

In order to qualify for a green card through investment, an investor must file Form I-526 (Immigrant Petition by Alien Entrepreneur) with the U.S. Citizenship and Immigration Services (USCIS) with evidence that he or she has invested or has committed to invest equity capital into a commercial enterprise in the United States.

  • The minimum investment amount is $1,000,000, but this amount is reduced to $500,000 if the commercial enterprise is located in a rural area or a high unemployment area. The investor must show that he or she obtained the investment funds lawfully through employment, investment, gift, inheritance, or other means.
  • The investor must also show that the investment will create or preserve at least 10 full-time jobs for U.S. workers.
  • Depending upon the investor’s personal preference, the investor may be actively engaged in the management of the U.S. business or may be a limited partner who is not involved in day-to-day management of the business.
  • The investor may start or purchase a U.S. business as the sole owner of the business, or invest as co-owner with other U.S. or foreign investors, or invest through a regional center that combines the investment capital of multiple foreign investors into a single business enterprise or multiple enterprises.
  • Investors who participate in regional center projects are permitted to show that their investment has created or preserved jobs indirectly in the regional economy, while other investors must show that their investment has created or preserved jobs directly on the payroll of the business enterprise in which they invest.

Step 2: Obtaining the Two-Year Conditional Green Card

Once USCIS has approved the Form I-526 petition, the investor moves on to the second step in the green card process. The second step allows the investor (and the investor’s spouse and any unmarried children under the age of 21) to obtain the conditional green card.

  • Prior to beginning this step, the investor makes a choice either to obtain the green card by applying in the U.S. through an adjustment of status application (if the investor is already in the U.S. in lawful temporary visa status) or to obtain the green card by applying for an immigrant visa at a U.S. Consulate abroad.
  • Both processes require medical exams, criminal record checks, and documents such as birth and marriage certificates.
  • After the adjustment of status application is approved by USCIS in the United States, or after the U.S. Consulate approves the immigrant visa application, the investor and the investor’s spouse and unmarried children under the age of 21 will receive conditional green cards valid for two years.

Step 3: Obtaining Permanent Resident Status

  • Prior to the end of the two-year period of the conditional green card, the investor must apply for permanent residence by submitting Form I-829 (Petition by Entrepreneur to Remove Conditions) to USCIS along with evidence that the investor has actually invested the required amount of capital in a commercial enterprise; that the investment was sustained for a two-year period; and that the enterprise created or preserved at least 10 full-time jobs for U.S. workers.
  • After approval of this step, the investor and family are granted permanent resident status.

Optional Step 4: Obtaining U.S. Citizenship

  • On the fifth anniversary of obtaining Conditional Resident status, the investor and family may become eligible to apply for U.S. citizenship.
  • To become eligible for U.S. citizenship, the investor or family member must maintain his primary residence in the United States for five years, and must be physically present in the United States at least half of the days during this five-year period.
  • There is no requirement to apply for U.S. citizenship; the immigrant investor or family member may choose to remain in Permanent Resident status indefinitely.

Who Should Consider Getting an EB-5 Visa?

EB-5 can work for almost anyone who has $500,000 to invest or who can obtain the necessary funds through a gift or a loan.

Some examples include:

  • Families from countries with civil strife, high crime, or political repression
  • Retirees who do not want to work in the U.S. or who only want to work part-time
  • Entrepreneurs who want to start a U.S. business, particularly those from countries that are not eligible for E-2 (treaty investor) nonimmigrant visas
  • Employees in E, H, L, or other nonimmigrant visa status whose employer will not sponsor them or who have been sponsored but are stuck in long backlogs
  • Recent graduates of U.S. universities who do not have a U.S. job offer, or may not succeed with labor certification, or do not want to be tied to a particular employer
  • College students who cannot qualify for reduced in-state tuition while holding F-1 or J-1 visa status, and spouses in F-2 visa status who want to work
  • Parents who want to reside in the U.S. while their children attend school here
  • Spouses and parents of permanent residents
  • Adult sons and daughters of U.S. citizens
  • Brothers and sisters of U.S. citizens
  • Other relatives for whom there is no green card category
  • Non-spouse partners and same-sex partners of U.S. citizens or residents – federal immigration law does not recognize same-sex marriages even when states do
  • A person who needs long-term medical treatment in the U.S.

About Steve Trow

Steve Trow has 30 years of experience in U.S. immigration law. He is a frequent speaker on U.S. immigration and citizenship planning for high net worth clients. The articles in this series draw on presentations he has made at professional development seminars hosted by the Society of Trust and Estate Practitioners (STEP) and other organizations in New York, Washington, Miami, London, Zurich, Bermuda, the Bahamas, the Cayman Islands, and most recently at the Canadian national STEP conference in Toronto.