EB-1A

EB-5

This preference category for employment-based immigration is reserved for foreign investors who can make a minimum capital investment into a new commercial enterprise that creates and/or preserves permanent full-time employment for at least 10 qualified U.S. workers. Capital amounts and requirements differ based on if the investment will be in designated areas encouraged by the U.S. government.

Eligibility criteria

1. Engagement in a New Commercial Enterprise

One must invest in a new commercial enterprise, which is any for-profit activity formed for the ongoing conduct of lawful business that was either:

  • a. Established after Nov. 29, 1990; or
  • b. Established on or before Nov. 29, 1990 that was:
    • i. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results; or
    • ii. Expanded through the investment so that a 40% increase in the net worth or number of employees
Any for-profit organization formed in the United States for the ongoing conduct of lawful business can count including:
  • sole proprietorship,
  • partnership (whether limited or general),
  • holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business),
  • joint venture,
  • corporation,
  • business trust,
  • limited liability company,
  • or other entity (which may be publicly or privately owned) that receives, or is established to receive, capital investment from immigrant investors.

The immigrant investor must be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or through policy formulation.

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2. An Investment of Capital

An immigrant in this category must invest his/her own capital. The amount is generally $1,050,000 million, for the location where the commercial enterprise will be principally doing business or creating jobs OR $800,000 in a rural area or other underserved area. These amounts will be increased over time and should be checked before deciding to apply for the visa.

  • Capital includes cash and all real, personal, or mixed tangible assets owned and controlled by the investor, or held in trust for the benefit of the investor and to which investor has unrestricted access
  • Applicants must establish that they are the legal owner of the capital invested.
  • Capital must be expected to remain invested for not less than 2 years and must be put at risk. Intent to invest or a loan from the immigrant investor to the new enterprise does not count.
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3.Job Creation

An EB-5 investor must create full-time positions for at least 10 qualifying employees. For a new commercial enterprise not located within a need-based area, the new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.
For a new commercial enterprise located within a need-based area, the new commercial enterprise can directly or indirectly create the full-time positions. Directly created jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs. Indirectly created jobs are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise. In the case of a troubled business, the EB-5 investor may rely on the maintenance of the current level of present jobs (still needs to have at least 10 employees) for two years. A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States. It does not include anyone in non-immigrant status. Full-time positions require a minimum of 35 working hours per week and cannot be temporary, intermittent, or seasonal. Jobs expected to last at least two years are not considered temporary under this legal standard.
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Problems when filing that visa

  • The jobs created cannot be intermittent, temporary, seasonal, or transient. One should prove that the job will at least last two years.
  • Document Requirements are intensive.
  • Immigrant must have substantial funds to invest.

How we can help.

We will analyze the nature of the provided capital to ensure that he/she can demonstrate that they qualify for the visa classification. We can also help an interested client determine an effective means of targeted investment in order to meet the legal standard.

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