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• For-profit new commercial enterprise• Active involvement in management (or making policy)• Have invested (or in process)
For-Profit New Commercial Enterprise
Creation of new business
Purchase of existing business and reorganization to new enterprise
40% expansion of existing business
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U.S. Citizenship and Immigration Services
Full-Time Jobs
Foreign Investor
EB-5 Program Overview
I-526Petition
• For-profit new commercial enterprise• Active involvement in management (or making policy)• Have invested (or in process)• Funds lawfully obtained• Create or save 10 full-time jobs (35 hrs/wk)
For-Profit New Commercial Enterprise
Unemployment AVG x 1.5>
Targeted Employment Area (“TEA”)
“Rural” = Not within a… • MSA or • City w/ pop > 20k
OR
U.S. Citizenship and Immigration Services
Qualified employees:• U.S. Citizen• Permanent Resident• Other immigrant authorized to
“USCIS has concerns that the attribution of certain direct jobs to the EB-5 investment may not be based on reasonable economic methodologies, and therefore do not demonstrate in ‘verifiable detail’ that the requisite jobs will be created. Rather, contemporary economic methodologies appear to indicate that such jobs would more appropriately be attributed to the tenants themselves and not to the regional center because the demand for labor precedes the decision about where to house that labor as a general economic principle.”
According to USCIS’ “Tenant Occupancy” methodology, If a Regional Center develops office space and a business with several employees leases the space, who is most responsible for the jobs?
• Capital investment must create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
See www.uscis.gov
Employee Parameters
• Qualified Employee – U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation.
– Does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States
• Full-time employment – A position that requires a minimum of 35 working hours per week.
• Job-sharing arrangement - Whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met.
– Does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.
• Capital – Cash, equipment, inventory, other tangible property, etc.
• Cannot be acquired by unlawful means
• Cannot be borrowed
• Minimum investments:
– $1 million –OR–
– $500 thousand if made within a Targeted Employment Area (TEA)
• High Unemployment Area – an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate
• Rural Area – any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census
See www.uscis.gov
Application Process
1.File a Form I-526, Petition by Alien Entrepreneur
2.Upon approval of the Form I-526 petition, either:
1.File a Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS to adjust status to conditional permanent resident within the United States, or
2.File a DS-230, Application for Immigrant Visa and Alien Registration, with the Department of State to obtain an EB-5 visa for admission to the United States.
The EB-5 investor (and his or her derivative family members) is granted conditional permanent residence for a two-year period upon the approval of the I-485 application or upon entry into the United States with an EB-5 immigrant visa.
1. File Form I-829, Petition by Entrepreneur to Remove Conditions, 90 days prior to the two-year anniversary of the granting of the EB-5 investor’s conditional resident status (Green Card). If USCIS approves this petition, the conditions are removed from the EB-5 applicant’s status and the EB-5 investor and derivative family members will be allowed to permanently live and work in the United States.
See www.uscis.gov
EB-5 Visas Issued in 2011
• Total immigrant visas issued: 360,344
• Total employment-preference visas issued: 139,302
• Total EB-5 visas issued: 3,463
– Top nine countries
• China: 2,408• South Korea: 254• Taiwan: 122• Iran: 117• Great Britain and Northern Ireland: 57• Mexico: 53• Venezuela: 46• India: 37• Russia: 30
• Regional centers are associated with the EB-5 “Pilot Program,” which was created in 1992
• Investment requirements are the same in the pilot program, except that investments affiliated with Regional Centers allow for less restrictive job creation requirements
– Direct vs. Indirect job creation
See www.uscis.gov
Regional Centers
• Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
• Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.
– The number of indirect jobs created through an EB-5 investor’s capital investment is based upon a business paly and a detailed economic analysis, which is evaluated and approved by USCIS during the application and review process of the Regional Center being designated as such for participation in the pilot program
• A Regional Center is not merely a defined geographical area but rather is a business entity that coordinates foreign investment within the area
• Regional Centers do NOT hold sole jurisdiction over their geographic region
• Must focus on a contiguous geographical region of the United States
• Must focus on economic growth through– Increased export sales (if any)
– Improved regional productivity
– Job creation
– Increased domestic capital investment
See www.uscis.gov
Regional Centers
• Must demonstrate in verifiable detail how jobs will be created, either directly or indirectly
• Must commit sufficient funds to promote and oversee capital investment opportunities in the Regional Center
• Under Public Law No. 102-395, priority must be given to Regional-Center-affiliated individual petitions (but no criteria for USCIS to prioritize amongst those petitions)