Estate Planning Attorney Orange County

EB-5: Entrepreneurs – Immigrant Investors

 

A foreign entrepreneur may be eligible for EB-5 status to become permanent residents if they have made an investment in a business located in the United States.  Both the EB-5 status entrepreneur and their spouse and dependent children under 21 years of age may work and live in the U.S.  EB-5 status is provided by the USCIS and was established in 1990 by congress in order to increase the number of investments in the United States economy.

In order to be eligible for EB-5 status the investor must invest in a United States business that is operating for profit.  Depending on the type of business in addition to the location, the required investment varies; however, typically a $1 million dollar investment must be made.  If the investment is being made in locations which are suffering from economic depression (targeted employment areas) or rural areas, the required investment may be lowered to $500,000.  In addition, the investment must create at least 10 full-time United States jobs that remain for a minimum of two years.

A maximum of 10,000 EB-5 visas are reserved each year by the USCIS.  In 2011, a large increase of over 3000 investors applied for EB-5 status which brought the total number of EB-5s issued to 3500 representing a 80% increase from the prior year.  Increased confidence gained through transparency of the program provided by the USCIS, an improved application process, and more Regional Center opportunities across the U.S. is thought to be the reason for this growth.

In order to be eligible investments must be made in new commercial enterprises that include those:

  • Formed after November 29th, 1990; or
  • Formed before or on November 29th, 1990 that:
    • Is intended to be purchased and reorganized or restructured to create a new enterprise that is commercial in nature; or
    • Increases its net worth or employee numbers by 40% through the use of the investment.

A commercial enterprise is defined as any legal, for-profit business not limited to but including a:

  • Sole proprietorship
  • Holding Company
  • Business Trust
  • General or Limited Partnership
  • Corporation
  • Joint Venture

 

Note that this includes holding companies including their subsidiaries which are wholly owned under the assumption that all subsidiaries are also legal for-profit businesses.  This does not include businesses which are non-commercial in nature (i.e. a personal residence holding company).

Job Creation Qualifications

  • In order to maintain EB-5 status, the investment must preserve or create a minimum of 10 full time jobs for United States workers who qualify within a minimum of two years or based on some circumstances after the two year period so long as it’s within a reasonable time after the investor is admitted to the U.S.
  • Preserve or create indirect or direct jobs which are:
    • Indirect jobs: those which are created as an off-spin of the investment in a regional center affiliated business enterprise.  An EB-5 holder may not use indirect jobs unless they are regional center affiliated.
    • Direct jobs: those which are created through direct hiring by the company invested in.

Note: preservation of jobs will only be considered if the business is considered troubled.

In order for a business to be classified as troubled the business must have been formed at least 2 years ago and incurred net losses over the past 1 or 2 years prior to submission of a Form I-526.  The incurred losses must be a minimum of 20% of the business’s net worth based on its worth prior to the losses.  In order to determine whether the business has existed for two years, those succeeding the interest of the business shall be deemed to have existed for a period of time equal to that of the business they succeeded.

In order to be considered a qualified employee, the employee must be a United States Citizen, an immigrant with authorization to work in the U.S. or a permanent resident of the U.S.  However, the investor, their spouse or children, or foreign nationals not authorized to work in the U.S. cannot be considered a qualified employee.

Capital Investment Qualifications

Cash, inventory, equipment, cash equivalents, asset secured indebtedness, or other tangible property that is owned by the investor can be considered capital so long as the investor is liable for those assets.  This cannot be borrowed capital.  As noted above, the minimum investment is $1 million dollars, or under certain circumstances, $500,000 in U.S. funds.

 

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