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Investment in USA to get Green Card

Investment in USA to get Green Card

If you are a non-US national looking to use investment in the USA to get a Green Card, you may be able to do this under the EB-5 Immigrant Investor Program.

While the E-2 visa offers entry through investment in a US-based enterprise, it does not itself lead to US permanent residency for E-2 holders.

If you are approved under the EB-5 scheme, you will be granted conditional permanent residence for a period of 2 years. After the 2 year period has ended, you can then apply for conditions to be removed and to be granted permanent residence.

You may also apply for your dependents to join you, enabling your spouse and any children under 21 to also obtain permanent residence as a dependent under the EB-5 investor program.

What is the EB-5 Immigrant Investor Program?

The EB-5 Investor Program allows non-US nationals to undertake investment in the USA to get a Green Card and permanent residence. In order to do this, certain requirements need to be met.

  1. You must invest $1,000,000 in a new commercial enterprise for which you will have day-to-day control. Note that there is an option for investors to qualify with a reduced investment of $500,000. This applies where you are investing in areas with high unemployment or rural areas, known as Targeted Employment Areas. Alongside a direct investment, you can also invest via a Regional Center. Regional Centers are government-designated organisations involved with promoting and co-ordinating economic growth and foreign investment within the United States.
  2. This new commercial enterprise must benefit the economy of the United States.
  3. It must create full-time employment for at least 10 citizens of the United States.

What is a New Commercial Enterprise?

A new commercial enterprise is any commercial undertaking, carried out for profit, including formations such as corporations, sole proprietorships or partnerships.

The enterprise must have been formed after November 29 1990, or if established before this, the enterprise must have been restructured in such a way that it results in a new commercial enterprise or has increased its net worth or number of employees by a minimum of 40 percent.

New commercial enterprises must be for-profit and do not include any activity undertaken for a non-commercial purpose, such as owning a residence for personal use.

How much do I need to invest?

In general, you must invest $1,000,000 in order to qualify under the scheme; however, if you are looking to set up your enterprise in an area with high unemployment rates, or a rural area (also known as Targeted Employment Areas) you can invest a reduced amount of $500,000.

The investment can be cash or tangible assets that are owned by you, which can include equipment, cash equivalents and other property.

Does the investment need to create jobs?

You must create or maintain full-time employment for at least 10 employees to fulfil the job creation requirement. How you create jobs differs depending on the circumstances of your commercial enterprise.

If you are part of a regional center (an organisation involved with promoting economic growth in the US), job creation can be direct via the commercial enterprise as the employer or can be created indirectly by the business of the enterprise, but the employment is not carried out within it.

If you are not part of a regional center, you must directly create jobs as an employer. However, if your enterprise is experiencing losses (also known as a troubled business), you may be able to fulfil this requirement by maintaining jobs instead.

To qualify for job maintenance as a troubled business, the enterprise must have existed for at least 2 years and have incurred a net loss of at least 20 percent of the net worth prior to the loss, during the 12 to 24 months leading up to the application.

What counts as full-time employment?

Full-time employment means the employee works a minimum of 35 hours a week; however, job-sharing agreements also apply so long as the total hours worked by each employee meets the 35 hours a week minimum.

Which employees qualify?

Your spouse and children will not qualify as an employee for the job creation requirement, nor will any non-immigrant foreign national not permitted to work in the US. All other lawful residents are eligible including; U.S. citizens, permanent or conditional residents, asylum seekers and refugees.

How to apply for the EB5

To use investment in the USA to get a Green Card, you must first file Form I-526 to apply for conditional residence and include details of you and your family, your investment and your enterprise. Once this petition has been approved, you will then need to file Form I-485 to register your permanent residence status.

Along with your name, date of birth and nationality, your personal information must also include your Alien Registration Number or USCIS Online Account Number if you have them. You must also provide your date of entry into the US if already here and your travel documents such as your passport.

You must also give detailed information about your enterprise and investment including; the total value of all assets and property purchased, the total of all debt financing and any other capital; including where you sourced the invested capital. You must also include your personal income and net worth.

The details of your new commercial enterprise required include:

  • Details of employees at the time of investment, how many employed currently and the estimated number of positions created;
  • Details of the job-creating entities for indirect job creation;
  • Details of the enterprise including the percentage of ownership and any other investors.

You must submit all supporting evidence and documentation at the time of filing the petition for investment in the USA to get a Green Card.

EB5 supporting evidence

You will need evidence to support all claims made in the application including but not limited to;

  • Evidence of your lawful business entity (articles of incorporation, business trust agreement etc)
  • Proof of increased net worth or employee numbers (such as stock purchase or investment agreements, payroll records)
  • Evidence of your investment (such as bank statements, loans and mortgage agreements )
  • The position of the entrepreneur in the business (including a statement of position and complete duties)
  • Evidence to support job creation or maintenance (such as a business plan showing how and when employees will be hired).

You must submit strong evidence that your investment capital was obtained through lawful means, and must include as it applies:

  • Business registration records
  • Tax returns covering the last 5 years (both within and without the US)
  • Evidence of all administrative, civil, and criminal actions involving financial judgements within the last 15 years (within the US or elsewhere).

When can I apply for a Green Card under EB5 status?

Your initial EB-5 petition will have granted you and any included dependents conditional permanent residence which expires after a 2 year period. To obtain permanent residence, you must file a petition using Form I-829 to apply to have those conditions removed and to become a permanent resident.

You must file the petition within the 90 day period preceding the 2 year anniversary of your admission as a conditional permanent resident. Consideration of this petition by the USCIS can take some time, therefore once it has been successfully filed, you will receive a notification and your residence will be extended by one year to accommodate the consideration period.

If you do not file to remove your conditions prior to the termination of your conditional residence, you may be subject to removal from the United States.

Alternative paths to a Green Card

The EB-5 Investor Program is one way to obtain permanent residence within the United States; however it’s important to seek legal advice on all potential routes to residence within the US as there may be an alternative path more suitable to your situation.

This can include being sponsored by a family member or employer using an H-1B visa, or as an employee working outside of the United States transferring to the US branch of the same company using an L-1 visa.

This article does not constitute direct legal advice and is for informational purposes only.

By Nita Nicole Upadhye

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