EB-5 Investor Green Cards

Congress created the EB-5 visa program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Permanent residence (commonly called “Green Card”) is permissible for foreign investors who invest in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs.

Under a new rule published by the U.S. Department of Homeland Security, several changes to the EB-5 Immigrant Investor Program went into effect on November 21, 2019.

Some of the major changes include:

  • The standard minimum investment amount has increased to $1.8 million (from $1 million) to account for inflation.
  • The minimum investment in a TEA has increased to $900,000 (from $500,000) to account for inflation.
  • Future adjustments will also be tied to inflation (per the Consumer Price Index for All Urban Consumers, or CPI-U) and occur every 5 years.
  • U.S. Citizenship and Immigration Services (USCIS) will now directly review and determine the designation of high-unemployment Targeted Employment Areas (TEA); USCIS will no longer defer to TEA designations made by state and local governments.

Obtaining EB-5 Green Card requires an investor to file petition with USCIS. Upon approval of the petition, the investor and immediate family (spouse plus single children under 21 years of age) may apply for an immigrant visa at a U.S. consulate or apply for adjustment of status at a regional USCIS office provided the investor is already in the United States in anyother valid nonimmigrant status.

The initial resident status is “conditional” for two years. Prior to the expiration of the two-year period, the conditional resident investor must file a petition with the USCIS to request removal of the condition on permanent residence. The petition should be granted if the investor demonstrates that he/she invested or was actively in the process of investing the requisite capital; the investor maintained the investment throughout the two-year period of conditional residence; and the investment created the requisite employment.

Direct Investment is one of two ways to pursue a Green Card through the EB-5 program. The term “Direct Investment” refers to an EB-5 investment in a business established and operated by the investor, rather than an investment in a USCIS approved regional center.

Because the 10-employee requirement deters many immigrant investors, in 1992, Congress expanded the allowable measure of job creation for the EB-5 visa program by launching the Immigrant Investor Pilot Program (or Regional Center Program), setting aside EB-5 visas for investors in USCIS-designated regional centers. A regional center is an economic unit, public or private, in the United States that is involved with promoting economic growth.

In this program, a promoter, makes a proposal to the USCIS. If the USCIS finds it will benefit a regional economy and shows potential for providing significant indirect employment, the project will be designated a regional center. With USCIS approval, the promoter forms a limited partnership or corporation. Investors may apply for Green Cards upon making the investment.

The investment must be in a “commercial” enterprise. Any for-profit entity formed for the ongoing conduct of lawful business may serve as a commercial enterprise. The law requires the investor-petitioner investing in a “new” commercial enterprise, which must have been one established after November 29, 1990. However, contribution of capital to an “existing” business (that was formed prior to November 29, 1990) may be acceptable in few limited situations.

The law requires an investor-petitioner to have invested in or be in the process of investing the required capital.

  1. Kinds of Capital: “Capital” may include cash and cash equivalents, equipment, inventory, and other tangible property. Although capital does not include loans made by the petitioner to the enterprise, the investor may borrow the investment money if it is secured by assets owned by the investor, provided the investor is personally and primarily liable for repayment of the loan, and the assets of the enterprise upon which the petition is based are not used to secure any of the indebtedness.
  2. Capital “At Risk”: USCIS requires proof that the capital invested is “at risk.” USCIS focuses on actual and intended uses of capital to confirm that it will be used for job creation and profit-generating activity. USCIS requires more than a deposit of funds into a business account; it also requires evidence of the actual undertaking of business activity.
  3. Tracing and Lawful Source: Documentary proof is needed that capital is invested by the investor petitioner. The investor should present evidence that traces capital from the petitioner directly to the enterprise. Further, USCIS also requires that an investor provide evidence to prove that the source of funds was procured by legal means.
  1. Creating Jobs: The investor must create full-time employment for at least 10 U.S. workers. The investor and his or her spouse and children do not count toward the 10-employee minimum. Note that non-immigrants (i.e., those with E, H, L, and other temporary worker visas) are also excluded from the 10-employee requirement. Independent contractors are excluded under this definition. The jobs created must be full-time, i.e., positions that require a minimum of 35 working hours per week. Part-time jobs do not count. However, job-sharing arrangements where two or more qualifying employees share one full-time position will be counted.
  2. Saving Jobs: Special rules govern investments in “troubled” businesses. 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 equal to at least 20 percent of the business net worth before the loss. If the petition is based on investment in a troubled business, the investor is not required to create 10 new jobs. Instead, the petition may be based on proof that the business will maintain the number of existing employees during the conditional status period.