Understanding the EB-5 Investment Visa

Attracting foreign investment is a great way to boost the economy. The current EB-5 investment visa is so carefully tailored that it ensures jobs for Americans and a significant monetary contribution that gets funneled into our economy. The benefits for those who are thinking about investing are big – the ability to gain permanent residency and eventual citizenship in the United States.

I am sure many of you are well aware of the investment amount and job creation requirements of the program.  Below, I will discuss the monetary amount along with several other basic requirements and terms with which you should familiarize yourself as you make a decision on whether the Investment Visa is the right course for you.  Please note the requirement for the minimum investment amount and the job creation stays the same for each individual investor even if multiple investors decide to pool their resources.

1. Capital Investment

The minimum amount that a prospective investor needs to invest is $1 million dollars.  Don’t get deterred just yet, because if you plan on investing in a “Targeted Unemployment Area,” then a minimum of $500,000 will suffice. What USCIS basically means by a “Targeted Unemployment Area” is a rural area or a part that experiences a high unemployment rate (at least 150 percent of the national average rate).  Rural area is further defined as one with a population of 20,000 or less.

2. Job Creation Requirements

You would think a hefty investment would be all that is needed. Unfortunately, along with investing, you also have to ensure that you create 10 full time jobs for U.S. workers within 2 years after your admission as a conditional Permanent Resident. However, if you invested in a “troubled business” (which I will explain below), then you will only be required to preserve 10 jobs. The good thing about job creation is that it can either be direct (employees working in the company parameters itself) or indirect (workers that get jobs collaterally from the investment). The jobs need to go to qualifying U.S. workers which excludes non-immigrant temporary workers.

 

 3. Types of Investment Enterprises

 USICIS requires that all investors in this visa category invest in a “new commercial enterprise.”  Do not get fooled by the word “new” because USCIS considers any commercial enterprise established after November 29, 1990 to be new.  In addition, business structures formed on or before November 29, 1990 that have restructured in a significant manner or expanded such that there is a 40% increase in net worth or number of employees will also be considered as a new enterprise.  Depending on the needs and desires of the investor, the commercial entity can take the form of a corporation, limited partnership or a limited liability company.

Other than creating or starting your own enterprise, you also have the option of investing in what I earlier referred to as a “troubled business.”  A troubled business is defined as one that incurs a 20% net loss for a period of 12 to 24 months.

Jaffe & Koumourdas, LLP

By now you must have gleaned that EB-5 is an extremely complex process that requires knowledge of not only immigration law but business as well.  In addition, the entire application process is laden with the presentation of heavy evidentiary documents.  At Jaffe & Koumourdas, our various legal units interact often and share their expertise.  As such, we are able to provide guidance with your investment immigration application as well as help you set up the business enterprise that would best suit your needs after careful analysis of tax implications and liabilities. Not only do our attorneys combine their best legal knowledge in the fields of tax law, business law, and immigration law but we speak your language.  We have attorneys fluent in Spanish, Mandarin, Cantonese, Nepali and Hindi.  Initial consultations are free, so please do not hesitate to reach us at 212-809-7800 or contact us via our website so we can begin working on what we do best- serving your legal needs!

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Immigration Reform and Your Eligibility

            The executive action that the President took has given a lifeline to many immigrants, especially to those who have built a home for themselves in the U.S.  In taking the executive action the President was firm on cracking down on illegal immigration focusing primarily on deporting criminals, all the while not losing sight of the fact that law abiding immigrant families should be allowed to stay together.

            Before we start talking about the new planned initiatives, I want to briefly note that these initiatives have not yet been implemented. USCIS is in the process of issuing forms and any other necessary instructions to comply with the executive order. Now let’s explore these new initiatives and talk about whether or not you may qualify.

1.         Deferred Action for Childhood Arrivals (DACA)

Undoubtedly most of you are aware of this program. Hundreds have already benefitted from DACA and now more people will be able to take advantage as the executive action now expands the DACA program to include:

  1. Applicants who are born prior to June 15,1981 and,
  2. Applicants who have continuously resided in the United States since January 1, 2010;

The order also expands the employment authorization to three years from the current two years.

2.         Deferred Action for Parental Accountability (DAPA)

This aspect of the initiative was probably the most awaited one. DAPA applies to parent of a U.S. citizen or a legal permanent resident (LPR), who is living in the United States and meets the following criteria:

  1. Parent of a U.S. Citizen or an LPR on the date of the announcement;
  2. Continuous residence since January 1, 2010; and
  3. Not in an enforcement priority removal from the U.S.

 

3.         Improvement of Immigrant and Non-Immigrant Programs

The first and foremost concern is to revive and maintain the economy of the U.S. In order to do so, it is essential that we are able to attract foreign investors and ensure that we meet U.S. employers’ demand for skilled workers. The executive action focuses on clarifying visa standards for certain high caliber individuals, authorize parole for specific investors and researchers, work to expand and extend the use of the Optional Practical Training, and provide guidelines on standards for the L1-B program.

 

4.         Naturalization

It is amazing to see how many people would qualify to become U.S. citizens but are not aware of the process. Hence, with the executive order, USCIS will be working towards promoting citizenship education for LPR and also allow such potential applicants to pay the application fee via credit card.

 

5.         Provisional Waivers of Unlawful Presence

With the announcement, USCIS will be expanding the provisional waiver program to the spouses and children of legal permanent resident and children of U.S. citizens granted a visa is available. In addition, USCIS will also work on clarifying the meaning of the “extreme hardship” standard.

With any immigration matter, documentation is key and in the next couple of months when USICS release guidelines, it’s likely that correct and precise paperwork will be essential to the application process. Thus, with these many changes, it is imperative that you seek assistance of qualified and experienced immigration lawyers.

Why Jaffe & Koumourdas, LLP?

At Jaffe & Koumourdas, LLP, we have an experienced group of immigration attorneys who are aware of the regulations and are well versed in it.  Our firm provides the resources and professionalism you would expect at big firms all the while focusing on what is most important – you, our client. We provide interaction with attorneys who speak a number of different languages such as Spanish, Cantonese, Mandarin, Nepali, Hindi and Italian.  As such, not only do we offer sound legal advice but we are thoroughly sensitive to the cultural needs of our clients who come from diverse backgrounds.  We strive to assist our clients to the best of our abilities, so we offer a free consultation. Please feel free to reach us at 212-809-7800 or contact us via our website.

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