Green Card for Foreign Investors

Summer 2016 Article

Green Card for Foreign Investors

Becoming a permanent resident allows foreign nationals to live and work in the United States of America indefinitely, and it is the first step to US citizenship. One of the paths to permanent residence is the immigrant investor visa, which was established in 1990 with the purpose of creating jobs and bringing foreign capital into the United States for large investment projects. This visa is also referred to as EB-5 because it is the fifth employment preference immigrant visa category[1]. The EB-5 visa classification for foreign investors is allotted 10,000 visas per year, and it is based on the following requirements:

1.      Investment of Capital: the foreign national must invest $1,000,000 (or $500,000 if the investment is in a rural area or an area with high unemployment, referred to as “targeted employment area” or “TEA”). The investment must consist in a contribution of capital that has been placed at risk for the purpose of generating a return. Funds for the investment must come from a lawful source.

2.      A commercial enterprise: the capital must be invested in a commercial enterprise, which is defined as “any for-profit activity formed for the ongoing conduct of lawful business”; and

3.      Job Creation: In order to meet the requirements for the EB-5 visa, the foreign national’s investment capital must create a minimum of 10 jobs in the new commercial enterprise.

The Regional Center Program

As an alternative to the investment carried out individually and directly by the foreign investor, in 1992 the Regional Center Program was created as an additional pathway to permanent residence status through the EB-5 visa category. The law defines Regional Centers as “any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment.”[2] Currently, there are over 800 Regional Centers throughout the United States which have been approved by the USCIS for EB-5 purposes.

When investing through this program, foreign national investors purchase an interest in a business (generally a limited partnership), which is the entity responsible for creating and operating the new commercial enterprise. The investment requirement for regional center investors is the same as for standard EB-5 investors. However, by investing through a regional center, foreign national investors are subject to different requirements pertaining to the measure of job creation, and are unlikely to be involved in the management of the commercial enterprise[3].

First, although both pathways require individual investors to create at least ten jobs, the regional center program allows to establish “reasonable methodologies” for determining the number of jobs created, including such jobs which are estimated to have been created indirectly by the new commercial enterprise.

Second, unlike the standard EB-5 visa, foreign nationals investing in a regional center are unlikely to be involved in the management and daily activities of the commercial enterprise.

Third, the EB-5 visa category is permanent, while the Regional Center Program is temporary, and it is currently set to expire on September 30, 2016.

As with any investment, there is a risk of total loss, and investors should conduct their own due diligence and verify the documents provided by the Regional Center independently. Furthermore, EB-5 regulations require that all invested capital be “at risk” (i.e., subject to normal business and financial risk) of loss. Additionally, the investor will also face the risk that the enterprise fails to meet the direct or indirect job creation requirement, which is a requisite to obtain permanent resident status.

Permanent Residence

Upon investing through the EB-5 visa category, either by means of an individual investment or through the Regional Center program, and submitting the required forms, documents, and fees to USCIS, the foreign national will be initially granted conditional residence for a two-year period.

Also, depending on whether the investor is overseas or in the United States in different lawful status, he or she will be required to either apply for an immigrant visa abroad or adjust his or her status in the US, respectively.

Prior to the two-year anniversary, the investor must file a petition with the USCIS requesting that the conditional basis of his or her residence be removed, and submitting evidence that the conditions of his or her permanent residence continue to be satisfied.

Immediate family member of the foreign investor can also immigrate. This will be the case of the investor’s spouse and unmarried children under 21 years of age.

Conclusion

This visa category has recently become the subject of scrutiny, in that it is thought to pose a risk to national security and a mark for abuse, including being used by individuals with possible ties to foreign intelligence, and for purposes of money laundering. Given the Regional Center Program’s expiration on September 30, 2016, Congress may consider whether this program should be allowed to expire, be reauthorized, or made permanent. Additionally, Congress may also modify the requirements of this program, such as by increasing the minimum investment amount in TEAs, as well as requiring on-site audits of projects and regional centers, and requiring that all principals that have equity in a regional center submit to a Federal background check.

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This article is for information purposes only and does not constitute legal advice. The information contained herein may be outdated or incomplete, and shall in no way be taken as an indication of future results. The transmission of this article is not intended to create, nor does its receipt constitute, an attorney-client relationship between preparer and reader. You should not act on the information contained in this article without first seeking the advice of an attorney. Requests for information or insights on the issue discussed in this article may be addressed to stefano.abbasciano@vallalaw.com.    


[1] This is different than the E-1 visa for treaty traders and the E-2 visa for treaty investors, which do not grant legal permanent residence and are reserved to citizens of countries with which the United States has signed a treaty of friendship, commerce and navigation.

[2] 8 C.F.R. §204.6 (e).

[3] The most commonly used business structure is to make the EB-5 investor a limited partner in a limited partnership, which grants EB-5 investors well-defined rights into the major decisions of the business.