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EB-5 Visa Program Related Issues
USINFO | 2013-12-18 18:20
Important: All documents included in the application must be translated into English. The investor must sign the English version of all agreements, government forms, and applications. Also, please consult a licensed immigration attorney if you are serious about investing. These FAQ’s are for informational purposes only.
1. How many immigrant visas are allotted for this classification?
The EB-5 program allocates 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least ten (10) full-time jobs for United States workers. A minimum 3,000 of these immigrant visas are set-aside for aliens who invest in designated Regional Centers, areas of high unemployment or other qualifying rural areas. Approximately 90% to 95% of all EB-5 investments are made through Regional Centers.
2. What is the history of the EB-5 visa category?
The EB-5 visa category started in 1991. Regional Centers started in 1993. CMB Export LLC’s application to become Regional Center was duly approved by the Immigration and Naturalization Service in 1997. During the mid 1990's several companies competed for investment capital from foreign investors for the EB-5 program. Most of the companies did not offer sound investments, and investment opportunities, did not raise the full $500,000 investment capital or hire the required number of employees. The USCIS wanted to stop these abuses of the program, this involved law suits and the EB-5 program was effectively placed on hold between 1999 and 2002. In 2002, Congress passed a new law to protect the pre-1999 investors. Also, in 2002, in a case commonly known as "Chang" in the 9th Circuit Court of Appeals ruled that USCIS may not apply their new rules retroactively. In August of 2003, USCIS began approving Regional Center petitions for the first time since 1998.
In January 2005, to improve and expedite EB-5 Regional Center related applications USCIS established an Investor and Regional Center Unit, IRCU, the unit being the sole adjudicative jurisdiction for Regional Center applications pursuant to the Immigrant Investor Pilot Program for purposes of approval, denial and Requests for Evidence (RFE's). In light of the “Chang” case and the new Congressional enactments in this area, CMB sought and received an updated Regional Center authorization letter in 2007. It is now common knowledge that EB-5 immigration petitions based on sound investments in designated Regional Centers with the full $500,000 in an at-risk investment as prescribed by the rules, with proper supporting documentation, should be approved.
3. What makes the EB-5 Visa program different from the L-1 (manager transfer) or E-2 (Treaty /Investor)?
Participation in the Immigrant Investor programs gives you permanent resident status (Green Card). Permanent residency requires no renewal or re-application. The E-1 Treaty Investor or E-2 Treaty Trader programs allow for nonimmigrant status only. When the qualifying business/investment ends, so does the non-immigrant status that has been granted to the alien. The Alien will have to leave the United States unless another visa category is granted. Also children over the age of 21 cannot be covered under your visa, and will have to obtain their own visa or leave the United States. Unlike E-1 and E-2, the L-1 alien can apply for classification as a Multinational Executive or Manager. If such a case is approved, which is becoming more difficult due to the high number of fraudulent cases and a subsequent tightening of the review process, the alien may apply for Permanent Resident status. Likewise, the L-1 is a non-immigrant classification. Other United States non-immigrant visas, such as E-1, E-2 and H category visas may never result in permanent residency, have time limits, and require additional filings with USCIS or Department of State. Furthermore, United States immigration laws may change and prevent future approval when a renewal of visa is required.
4. Is EB-5 a truly passive investment?
The EB-5 regulations require involvement in management or policy making. The regulations deem a limited partner in a limited partnership, which is properly structured and that conforms to the Uniform Limited Partnership Act as sufficiently engaged in the EB-5 enterprise.
5. Where can I find a copy of the relevant EB-5 law and regulations to review?
Please go to the Bureau of Citizenship and Immigrations Services web site. A link to immigrant investment visa information is available at this address www.uscis.gov. You will see a link to “Laws” near the top center of the USCIS home page.
6. I want to invest in the USA and get a Green Card, is the EB5 visa suitable for me?
The EB-5 investor Visa is suitable for people from all walks of life: professionals, business people, persons wanting to facilitate their children's education and attend United States Colleges and Universities, persons just seeking a new or better life in the United States, and persons wanting to retire in the United States. The EB-5 visa permits employment in the United States for the Investor and their family. Quite simply, the EB-5 visa gives you the opportunity and flexibility to do what you want in the USA. If you do not want to actively manage your business, you should consider a Regional Center EB-5 investment.
7. What if I want to manage my own business?
If you want to manage your own business, consider an L-1 Visa (Non-Immigrant Intra-company Transferee), E-2 Visa (Non-Immigrant Treaty Investor), or EB-5 Alien Entrepreneur Investment by investing $1,000,000 into your own business which you control, and creating the necessary ten new jobs within a new enterprise. If your goal is to have a Green Card and not to actively manage a business, it is more often cheaper and/or more convenient and possibly with much less risk to utilize a structured investment program in the Regional Center EB-5 category rather than to start and maintain your own business.
8. Will my children be able to remain in school in the United States if I leave the United States?
Yes.
9. Are any countries excluded from eligibility for the EB-5 Visa program?
Residents of only a few countries are excluded (e.g., North Korea and others.) In most cases, however, if the applicant is able to leave the excluded country and has the necessary capital to qualify under the program, legal counsel will be able to help the applicant qualify for visa approval. Consult your attorney to determine if you home country is precluded from this visa program.
10. What is the EB-5 Investment Visa Program?
The Investment Visa Program takes advantage of the immigrant visa category for alien entrepreneurs known as the EB-5 Immigrant Investor Visa, created by the Immigration Act of 1990. In general terms, the EB-5 program requires an alien to "invest or be actively in the process of investing," either US $1,000,000 or US $500,000, which is "at risk" in a "new or existing business enterprise" that directly or indirectly results in the creation or preservation of ten full time (at least thirty five hours per week) jobs for a two year period. A successful applicant can earn permanent residency for him or herself, a spouse and the children under age 21.
11. What can disqualify us from participating?
There are very few disqualifying or exclusionary events under the law. A criminal record involving crimes of moral turpitude is disqualifying, unless it can be proven that the crime was political in nature or occurred over twenty years prior to the application. A few major medical problems might also exclude an applicant, but for the most part this can be avoided if it can be proven that the applicant will be supported by others and therefore avoid being a recipient of government medical assistance. Applicants should seek advice of their legal counsel to determine what waivers may be available for eligibility.
12. Can I apply if I am currently out-of-status (i.e., I live in the United States, but do not have a current visa)?
Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. "Out-of-status" means the individual stayed in the United States longer than their authorized period of stay. Your Visa should be valid at the time of entry to the United States but the Form I-94 should be extended if the individuals need to stay more than the I-94 period. However, if they have filed any petitions or applications that lead to Green Cards, such as immigration petitions (through employment or family) or labor certifications during 245(i) benefit period by January 17, 1998 or April 30, 2001, they may file their applications to adjust status in the United States with the penalty of $1,000, which applies to applicants over 17 years old.
If the out-of status nationals do not have 245(i) cases, they must return to their country of origin and apply through the United States Embassy there. However, depending on the out-of-status period, they may be banned to obtain United States visa and entry to the United States for certain periods of time from the departure date.
13. What is a Designated Regional Center?
A "Regional Center:"
• Is an entity, organization or agency that has been approved as such by the USCIS; The Pilot Program with the coinciding federally designated Regional Centers was approved by Congress under Section 610(c) of the Appropriations Act of 1993.
• Focuses on a specific geographic area within the United States;
• Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
• Facilitates the pooling of capital of multiple EB-5 investors
• Investors can take credit for jobs created directly as well as indirectly from their investment in the Regional Center. Indirect job creation may be demonstrated using any reasonable approved methodology.
• Congress gave the USCIS discretion to give priority to EB-5 applications filed in conjunction with a Regional Center. CMB offers many types of investments that meet the requirements for the Regional Center Pilot Program. Business enterprises must be located in the geographic areas of the CMB Regional Centers. EB-5 applicants’ Investment have limited management requirements and may meet the job creation requirements of the law using "indirect employment" based upon approved methodologies.
14. How does an investor apply for the EB-5 visa?
An investor must apply to the USCIS for EB-5 visa qualification through the submission of a number of required elements including: immigration forms, personal financial information, business plans, legal brief on qualifications under the proposed application, a copy of the Regional Center approval letter, and other supporting evidence. The initial primary application is called the I-526 Petition. Also, funds must be placed in escrow prior to submitting an application or I-526 Petition with the USCIS.
15. What information and documentation are required?
Professional Background: You must prepare complete biographical information for each applicant and the principal applicant must prove the source of the investment funds. A resume with copies of college diplomas and other educational certificates, if applicable, should be included. Business licenses, brochures about the business and other information about the applicant’s business are also beneficial. Any memberships in professional organizations should be documented. Unless the investor inherited the funds, the investor should be presented as a successful professional or businessperson with a business, financial or family history that explains the accumulation of financial net worth that is presented in the financial information. Provide as much documentation as possible that pertains to the career and achievements of the Investor. Source of Funds: Funds for the investment must come from a lawful source. Lawful sources of funds include: profits from the sales of a property, stocks or bonds, profits from business, business transactions, gifts, and inheritances. To prove the source of investment funds, USCIS requires five years of tax returns, five years of bank records, proof of ownership in any businesses, financial statements for each business and business licenses. The idea is to present a track record of an honest course of dealing. If your capital came from a specific transaction, such as sale of a house, inheritance or gift, you must prove the transaction occurred, by providing an official document, such as a closing statement or contract or other official documents. This is not a comprehensive list. Other documents may be required and vary on a case-by-case basis.
1. How many immigrant visas are allotted for this classification?
The EB-5 program allocates 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least ten (10) full-time jobs for United States workers. A minimum 3,000 of these immigrant visas are set-aside for aliens who invest in designated Regional Centers, areas of high unemployment or other qualifying rural areas. Approximately 90% to 95% of all EB-5 investments are made through Regional Centers.
2. What is the history of the EB-5 visa category?
The EB-5 visa category started in 1991. Regional Centers started in 1993. CMB Export LLC’s application to become Regional Center was duly approved by the Immigration and Naturalization Service in 1997. During the mid 1990's several companies competed for investment capital from foreign investors for the EB-5 program. Most of the companies did not offer sound investments, and investment opportunities, did not raise the full $500,000 investment capital or hire the required number of employees. The USCIS wanted to stop these abuses of the program, this involved law suits and the EB-5 program was effectively placed on hold between 1999 and 2002. In 2002, Congress passed a new law to protect the pre-1999 investors. Also, in 2002, in a case commonly known as "Chang" in the 9th Circuit Court of Appeals ruled that USCIS may not apply their new rules retroactively. In August of 2003, USCIS began approving Regional Center petitions for the first time since 1998.
In January 2005, to improve and expedite EB-5 Regional Center related applications USCIS established an Investor and Regional Center Unit, IRCU, the unit being the sole adjudicative jurisdiction for Regional Center applications pursuant to the Immigrant Investor Pilot Program for purposes of approval, denial and Requests for Evidence (RFE's). In light of the “Chang” case and the new Congressional enactments in this area, CMB sought and received an updated Regional Center authorization letter in 2007. It is now common knowledge that EB-5 immigration petitions based on sound investments in designated Regional Centers with the full $500,000 in an at-risk investment as prescribed by the rules, with proper supporting documentation, should be approved.
3. What makes the EB-5 Visa program different from the L-1 (manager transfer) or E-2 (Treaty /Investor)?
Participation in the Immigrant Investor programs gives you permanent resident status (Green Card). Permanent residency requires no renewal or re-application. The E-1 Treaty Investor or E-2 Treaty Trader programs allow for nonimmigrant status only. When the qualifying business/investment ends, so does the non-immigrant status that has been granted to the alien. The Alien will have to leave the United States unless another visa category is granted. Also children over the age of 21 cannot be covered under your visa, and will have to obtain their own visa or leave the United States. Unlike E-1 and E-2, the L-1 alien can apply for classification as a Multinational Executive or Manager. If such a case is approved, which is becoming more difficult due to the high number of fraudulent cases and a subsequent tightening of the review process, the alien may apply for Permanent Resident status. Likewise, the L-1 is a non-immigrant classification. Other United States non-immigrant visas, such as E-1, E-2 and H category visas may never result in permanent residency, have time limits, and require additional filings with USCIS or Department of State. Furthermore, United States immigration laws may change and prevent future approval when a renewal of visa is required.
4. Is EB-5 a truly passive investment?
The EB-5 regulations require involvement in management or policy making. The regulations deem a limited partner in a limited partnership, which is properly structured and that conforms to the Uniform Limited Partnership Act as sufficiently engaged in the EB-5 enterprise.
5. Where can I find a copy of the relevant EB-5 law and regulations to review?
Please go to the Bureau of Citizenship and Immigrations Services web site. A link to immigrant investment visa information is available at this address www.uscis.gov. You will see a link to “Laws” near the top center of the USCIS home page.
6. I want to invest in the USA and get a Green Card, is the EB5 visa suitable for me?
The EB-5 investor Visa is suitable for people from all walks of life: professionals, business people, persons wanting to facilitate their children's education and attend United States Colleges and Universities, persons just seeking a new or better life in the United States, and persons wanting to retire in the United States. The EB-5 visa permits employment in the United States for the Investor and their family. Quite simply, the EB-5 visa gives you the opportunity and flexibility to do what you want in the USA. If you do not want to actively manage your business, you should consider a Regional Center EB-5 investment.
7. What if I want to manage my own business?
If you want to manage your own business, consider an L-1 Visa (Non-Immigrant Intra-company Transferee), E-2 Visa (Non-Immigrant Treaty Investor), or EB-5 Alien Entrepreneur Investment by investing $1,000,000 into your own business which you control, and creating the necessary ten new jobs within a new enterprise. If your goal is to have a Green Card and not to actively manage a business, it is more often cheaper and/or more convenient and possibly with much less risk to utilize a structured investment program in the Regional Center EB-5 category rather than to start and maintain your own business.
8. Will my children be able to remain in school in the United States if I leave the United States?
Yes.
9. Are any countries excluded from eligibility for the EB-5 Visa program?
Residents of only a few countries are excluded (e.g., North Korea and others.) In most cases, however, if the applicant is able to leave the excluded country and has the necessary capital to qualify under the program, legal counsel will be able to help the applicant qualify for visa approval. Consult your attorney to determine if you home country is precluded from this visa program.
10. What is the EB-5 Investment Visa Program?
The Investment Visa Program takes advantage of the immigrant visa category for alien entrepreneurs known as the EB-5 Immigrant Investor Visa, created by the Immigration Act of 1990. In general terms, the EB-5 program requires an alien to "invest or be actively in the process of investing," either US $1,000,000 or US $500,000, which is "at risk" in a "new or existing business enterprise" that directly or indirectly results in the creation or preservation of ten full time (at least thirty five hours per week) jobs for a two year period. A successful applicant can earn permanent residency for him or herself, a spouse and the children under age 21.
11. What can disqualify us from participating?
There are very few disqualifying or exclusionary events under the law. A criminal record involving crimes of moral turpitude is disqualifying, unless it can be proven that the crime was political in nature or occurred over twenty years prior to the application. A few major medical problems might also exclude an applicant, but for the most part this can be avoided if it can be proven that the applicant will be supported by others and therefore avoid being a recipient of government medical assistance. Applicants should seek advice of their legal counsel to determine what waivers may be available for eligibility.
12. Can I apply if I am currently out-of-status (i.e., I live in the United States, but do not have a current visa)?
Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. "Out-of-status" means the individual stayed in the United States longer than their authorized period of stay. Your Visa should be valid at the time of entry to the United States but the Form I-94 should be extended if the individuals need to stay more than the I-94 period. However, if they have filed any petitions or applications that lead to Green Cards, such as immigration petitions (through employment or family) or labor certifications during 245(i) benefit period by January 17, 1998 or April 30, 2001, they may file their applications to adjust status in the United States with the penalty of $1,000, which applies to applicants over 17 years old.
If the out-of status nationals do not have 245(i) cases, they must return to their country of origin and apply through the United States Embassy there. However, depending on the out-of-status period, they may be banned to obtain United States visa and entry to the United States for certain periods of time from the departure date.
13. What is a Designated Regional Center?
A "Regional Center:"
• Is an entity, organization or agency that has been approved as such by the USCIS; The Pilot Program with the coinciding federally designated Regional Centers was approved by Congress under Section 610(c) of the Appropriations Act of 1993.
• Focuses on a specific geographic area within the United States;
• Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
• Facilitates the pooling of capital of multiple EB-5 investors
• Investors can take credit for jobs created directly as well as indirectly from their investment in the Regional Center. Indirect job creation may be demonstrated using any reasonable approved methodology.
• Congress gave the USCIS discretion to give priority to EB-5 applications filed in conjunction with a Regional Center. CMB offers many types of investments that meet the requirements for the Regional Center Pilot Program. Business enterprises must be located in the geographic areas of the CMB Regional Centers. EB-5 applicants’ Investment have limited management requirements and may meet the job creation requirements of the law using "indirect employment" based upon approved methodologies.
14. How does an investor apply for the EB-5 visa?
An investor must apply to the USCIS for EB-5 visa qualification through the submission of a number of required elements including: immigration forms, personal financial information, business plans, legal brief on qualifications under the proposed application, a copy of the Regional Center approval letter, and other supporting evidence. The initial primary application is called the I-526 Petition. Also, funds must be placed in escrow prior to submitting an application or I-526 Petition with the USCIS.
15. What information and documentation are required?
Professional Background: You must prepare complete biographical information for each applicant and the principal applicant must prove the source of the investment funds. A resume with copies of college diplomas and other educational certificates, if applicable, should be included. Business licenses, brochures about the business and other information about the applicant’s business are also beneficial. Any memberships in professional organizations should be documented. Unless the investor inherited the funds, the investor should be presented as a successful professional or businessperson with a business, financial or family history that explains the accumulation of financial net worth that is presented in the financial information. Provide as much documentation as possible that pertains to the career and achievements of the Investor. Source of Funds: Funds for the investment must come from a lawful source. Lawful sources of funds include: profits from the sales of a property, stocks or bonds, profits from business, business transactions, gifts, and inheritances. To prove the source of investment funds, USCIS requires five years of tax returns, five years of bank records, proof of ownership in any businesses, financial statements for each business and business licenses. The idea is to present a track record of an honest course of dealing. If your capital came from a specific transaction, such as sale of a house, inheritance or gift, you must prove the transaction occurred, by providing an official document, such as a closing statement or contract or other official documents. This is not a comprehensive list. Other documents may be required and vary on a case-by-case basis.
