Continuing our series of expert EB-5 visa attorney articles today we present a comparison between the L-1A and Eb-5 visas. Please feel free to email comments and questions about this comparison to the experts at Which EB5.

L-1A visa and EB-1 multinational manager green card
A company that operates actively in a foreign country may transfer an owner/manager or executive to a U.S. affiliate or subsidiary with the L-1A visa. The transferring foreign business must be a parent, subsidiary, or affiliate of the U.S. business. This is achieved through joint-ownership: one business owns the other, the same individual has a controlling interest in both businesses, or the same individuals jointly own a controlling interest in both businesses. An L-1 visa applicant must have worked at least one complete, continuous year during the previous three years for the foreign business that is transferring him/her to the U.S.

An L-1A Manager or Executive must be transferred to the U.S. to direct professional employees at different levels of responsibility in the U.S. parent, subsidiary, or affiliate company. If the U.S. business qualifies, an L-1A visa can be renewed for a total of 7 years, with a maximum of 3 years for each issuance, except for the one-year maximum for the first L-1 visa when the U.S. company is less than a year old.

An L-1A visa holder, whose is granted a visa renewal, has a chance of qualifying for the EB-1 multinational manager green card, given that the qualifying requirements for the EB-1 multination manager green card are basically equivalent to the L-1A visa requirements. However, USCIS expects for the EB-1 multinational manager more employees and layers of management under the manager in the U.S. company. Both the U.S. and the foreign companies must still be actively operating and employ personnel; the manager of the U.S. facility must document his personnel management and supervision responsibilities. He/she must be at the head of one or more professional teams in the company, or manage a company division or department.

Advantages of the L-1/EB-1 route to Permanent Residence:
·No specific investment is required to open and develop the U.S. affiliate;

·The L-1 visa holder is allowed to have immigrant intent, and it will not endanger the approval of the visa by USCIS or the consulate;

·The spouse of the L-1 visa holder may obtain a work authorization;

·An applicant who qualifies for an L-1A visa has decent chances to qualify for the EB-1 multinational manager green card, if he/she develops the U.S. business as required, while managing upwards of 10 employees in professional and supervisory positions;

·The L-1 transferee’s spouse and children under 21 will be issued L-2 dependent visas. The L-2 spouse may apply for a work authorization based on his/her dependent visa;

·L-1 dependent children under 21 may attend the school of their choice in the U.S., but they do not qualify for a work authorization;

·The L-1 owner/manager can use any available investment funds to develop his/her U.S. business rather than invest half a million dollars in someone else’s business over which he/she has no direct decision-making or management control;

·The L-1A manager has managerial, and often also financial, control over the development of the U.S. Business.

Potential disadvantages of the L-1/EB-1 Green Card route:
·If the U.S. affiliate has been active for less than a year, the initial L-1 visa is issued for just one year. By visa renewal time, many L-1 managers fail to develop the business according to the L-1 regulations, and thus their visa renewal is denied;

·Often, the profit margin of the U.S. business does not permit the hiring of as many employees as are required for the foreign manager’s L-1 visa renewal, and the visa will not be renewed;

·At times, foreign L-1 managers, who hire and manage the 10+ professionals needed to qualify for the EB-1 multinational manager green card, overextend the financial capacities of the business, and the business fails;

·If the L-1 manager’s children turn 21 before the business is sufficiently developed to qualify the foreign manager for the EB-1 multinational manager green card, the children will not qualify for the green card with their parents;

·The foreign affiliate needs to be actively operating until the L-1A transferee has obtained the EB-1 green card, and this is not always financially beneficial for both companies.

·The decision by the USCIS examiner about whether a visa applicant’s position qualifies as “sufficiently managerial” for purposes of the L-1 visa or the EB-1 green card approval is extremely arbitrary and unpredictable. What satisfies one examiner at one time, might not satisfy another examiner a different time. The only common theme is that the larger the staff, and the more complicated the managerial hierarchy and departmentalization, the better the chances of approval

The EB-5 Immigrant Investor Visa (EB-5 Regional Center Green Card)
The EB-5 visa is an immigrant visa, i.e., it is a direct path first to obtaining condition permanent residence, and then obtaining unconditional permanent residence.The EB-5 visa requires an investment of $500,000 in one of the more than 194 government-approved Regional Centers in the U.S.

1.A Regional Center is a legal entity, organization, or a municipal or state agency that has been designated as a Regional Center by USCIS (U.S. Citizenship and Immigration Services), which enables foreign nationals to qualify for permanent residence based on their investment in a Regional Center Project.

2.A Regional Center sets up limited partnerships, each with its own business activity, and manages the business of the limited partnerships as the general partner. Foreign investors who wish to obtain permanent residence in the United States may become limited partners through a $500,000 investment in a project. The investor is not involved in the daily management of the Regional Center.

3.Regional Centers must create at least 10 new, full-time jobs per investor for the investors to be approved for permanent residence. These jobs can be direct, indirect, or expenditure-based indirect jobs. Each Regional Center project has a “job creation methodology,” based on which an economist calculates the number of jobs that will result from the project being carried through to completion.

4.The investor must prove that he/she has invested funds that were obtained through legitimate means such as employment, business ownership, investment, inheritance, or a gift. USCIS expects the investor to provide tax returns from the investor’s home country or country of current residence, and to document clearly how the investment funds were obtained.

5.USCIS requires that the investment be “at risk” of partial or complete loss in the commercial sense; thus, the Regional Centers are not permitted to guarantee the return of the investment funds.

EB-5 Immigration Processing:
1.After the investor has made a $500,000 investment in the Regional Center of his/her choice, the immigration attorney files the Immigrant Petition with USCIS on behalf of the investor. At this stage, processing can take anywhere from 1 to 9 months, depending on the Regional Center.

2.Upon approval of the initial petition, the attorney files for consular processing of an immigrant visa for the investor and his/her family, or for adjustment of status in the U.S., if the investor is in the U.S. with a long-term visa. Consular processing typically takes 3-6 months, while adjustment of status in the U.S. typically takes 2-3 months.

3.The initial conditional Green Card is issued for 2 years. In the final 90 days before the end of the 2 years, the investor’s attorney must file for the removal of the green card condition. To qualify for the permanent green card, the investor must prove to immigration that the investment is still in place and that the Regional Center has followed through with the project, and that has had the effect of creating 10 jobs per investor, in accordance with the previously approved business plan job creation calculations in the economist’s report.

Advantages of the EB-5 Regional Center Green Card Program:
·The EB-5 investor can live in the U.S. state of his/her choice, and does not need to manage the investment business;

·Unlike L-1A transferees, who must first develop their business according to the EB-1 qualification requirements, EB-5 Regional Center Investors obtain permanent residence in less than a year, and, if they so choose, they are free to operate their own business, without visa constraints;

·An investment in a Regional Center qualifies investors immediately to apply for permanent residence, so there is risk that their children may age out while waiting for the business to qualify the L-1 manager to apply for the EB-1 Green Card.

Disadvantages of the EB-5 Regional Center Program:
·Under the Regional Center version of the EB-5 program, the investor does not manage the business him/herself. For entrepreneurial investors, this is a disadvantage, since they typically like to have more control over their own destiny. For people who want to retire to the U.S. and not work, or who want to work as an employee in a type of job that would not normally qualify for a work visa in the U.S., this is not a disadvantage;

·Depending on the job methodology of the chosen Regional Center, there is a risk that a Regional Center might not succeed in creating the required 10 jobs per investor, and then the investor would not be granted permanent residence;

·If the EB-5 investor does not do the necessary due diligence on the Regional Center Program or rely on solid investment advice, he/she may run the risk of investing in a project that will fail, and thus lose the investment funds.