Overview
Permanent residency (green card) is available to foreign nationals who are investing in a new commercial enterprise that will benefit the U.S. economy and create needed employment opportunities within the United States.
General Requirements
Where must the money be invested?
The foreign national Investor must be investing in a “new commercial enterprise.” The regulations consider any one of the following activities to constitute a “new commercial enterprise:”
• creating a new business;
• investing in a business that was established after Nov. 29, 1990;
• purchasing a business that was established prior to Nov. 29, 1990 and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or
• investing in a business that was established prior to Nov. 29, 1990 and expanding it by 40 percent of the pre-investment number of employees or net worth.
How much money?
To qualify, the Investor must invest at least:
• $1 million anywhere in the United States; or
• $500,000 in an area where 1) the unemployment rate exceeds the national average unemployment rate by 150% as designated by the State or 2) a rural area. A rural area is an area outside of a metropolitan statistical area (MSA) or an area outside of a city or town having a population of 20,000 or more. MSAs are designated by the Office of Management and Budget.
Also, the money must come from a “lawful source of funds,” which means the Investor should have extensive documentation how he or she obtained the money, whether it be earnings, a gift from family, the sale of property, etc.
How many jobs?
The rationale behind providing for this type of immigration is to improve the U.S. economy. As such, the criteria for establishing whether an investment will qualify focuses on job creation. In general, the regulations state that if the Investor is starting a new business, or buying at existing business, at least 10 new full-time positions must be created. In the case, however, of an Investor who is expanding an existing business where a 40 percent increase in employees or net worth must be shown, if the net worth requirement cannot be met, then the Investor mush show a 40 percent increase in employees, meaning potentially more than 10 jobs must be created.
If investing in a “troubled business,” instead of hiring 10 people, the employment criteria can be met by maintaining the number of existing employees at no less than the pre-investment level for a period of at least two years. A “troubled business” is one that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.
What is the Investor’s role in the enterprise?
The regulations state the Investor must have more than a passive role in the business. The Investor must be active, either through the exercise of day-to-day managerial control or through policy formulation. The regulations state that serving on the board of directors, as a corporate officer, or as a limited partner meet this criteria.
It should be noted that the Investor is not required to live in the area where the money is being invested.
Other eligibility criteria
The new enterprise must “benefit” the U.S. economy. This fact generally can be established by showing the entity provides goods or services to the U.S. market. If, however, the entity is a consulting firm exclusively serving clients overseas, that activity may not be sufficient to support a petition.
Special Pilot Program/Regional Centers
The Immigrant Investor Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.
For the Investor, these Regional Centers are attractive because they allow for a less restrictive job creation requirement. Instead of having to prove direct job creation, the investor may show indirect job creation through such methods as economic and statistic forecasting tools.
Please note that this pilot program expires in November 2008 unless reinstated.
For a list of active Regional Centers, please see our other article on this blog listing the Regional Centers for the EB-5 Immigrant Investor Pilot Program.
Family Members
Dependent family members (spouse and children under age 21) may be included in the Investor’s immigration petition.
Application Process
File Form I-526, Immigrant Petition by Alien Entrepreneur. The Form I-526 must be filed with supporting documentation which clearly demonstrates that the individual’s investment meets all requirements. This documentation will need to be extensive to establish all the program requirements.
If the Investor is already in the United States, once the Form I-526 is approved, Form I-485, Application to Register Permanent Residence or Adjust Status must then be filed to obtain conditional permanent residence status.
If outside the United States, upon receiving the approved I-526 petition, the Investor must schedule an appointment with the U.S. embassy and apply for an immigrant visa.
Removing Conditions
In order to become a lawful permanent resident, eligible Investors must file a Form I-829, Petition by Entrepreneur to Remove Conditions. Form I-829 must be filed within 90 days before the second anniversary of the Investor’s admission to the United States as a conditional resident. Failure to file this petition will result in automatic termination of status and initiation of removal proceedings.
Quotas
There are 10,000 investor visas available annually. Of these, 5,000 are set aside for those who apply under the Pilot Program involving the government-designated Regional Centers. To date, the quotas have never been exceeded.
Posted by Vonda K. Vandaveer 
