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United States Immigration:
EB-5 Immigrant Investor Program

The 5th employment-based preference (EB-5) is an immigration category available for foreign investors in the United States.  This category provides for the issuance of 10,000 visas per year for immigrants seeking to immigrate to the United States.  The investor must invest at least $500,000 in a new business enterprise that will benefit the U.S. economy and create a minimum of 10 full-time jobs in the U.S.

Interested investors may become permanent residents of the U.S. by way of strategic investments in connection with the U.S. Immigrant Investor Program entitled Employment Based Program #5 (EB-5).  The American Congress established the EB-5 program in 1990 to permit individuals and their spouse and unmarried children under 21 years old to apply for a U.S. green card with an investment in a business that will generate a minimum of 10 jobs per investor.

Over the past several years, the program has changed in several respects.  Presently, it is simpler and more expeditious for investors to gain permanent resident status.  The minimum investment amount has been reduced from US$1,000,000 to US$500,000 through an investment in specified regional centers in targeted employment areas (TEA).  The processing duration for EB-5 cases has been reduced.

In 2005, the United States Citizenship and Immigration Services (USCIS) issued a memorandum regarding the EB-5 program.  The memo created an Investor and Regional Center Unit (IRCU) responsible for implementing the EB-5 program.  The IRCU has improved the processing of EB-5 applications.

The regulations allow 3 methods of qualifying a commercial enterprise:

  • Creation of a new business;
  • Purchase of an existing business and reorganization in which a new commercial enterprise results;  or
  • Expansion of an existing business through investment so that a substantial change in the net value or number of employees results from the investment of capital.

The regulations provide that indebtedness secured by assets owned by the foreign person may be considered capital, provided the investor is personally and primarily liable for the debts and also that the assets of the enterprise are not used to secure any of the indebtedness.

The regulations have reduced the minimum investment to $500,000.00 for a business established in a "Targeted Employment Area". Targeted Employment Areas include:

  • Rural areas which may include a city or town with a population of 20,000 or less;  and
  • Areas with an unemployment rate of 150% of the national average.

Investments are often pooled with the funds of other investors seeking permanent investor visas.  Each investor is required to invest the statutory minimum and the jobs created by the commercial enterprise are allocated among the investors in the pool applying for investor visas.

The investment must create a minimum of 10 full-time American jobs.  The investor and his or her spouse or children are not be counted toward the job creation requirement but other family members may qualify as employees under EB-5.  Part-time employment is excluded.  A combination of two or more part-time jobs do not qualify.

The regulations require the EB-5 applicant to enter the United States to manage the commercial enterprise.  The investor must not have merely a passive role in the business.  The regulations require either day-to-day management or involvement at the policy level such as a corporate officer or board member.

There are special rules for investments in an approved "Regional Center" defined by the regulations 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.  In a Regional Center, the commercial enterprise may show that 10 or more jobs will be created directly through the use of independent contractors or indirectly as a result of the investment.

In order to qualify pursuant to the $500,000 investment, the applicant must invest in a Targeted Employment Area.  Many investment projects located within approved Regional Centers are situated in targeted employment areas.  An investment in a project in a Regional Center and Targeted Employment Area will permit the EB-5 applicant to qualify based on an investment of $500,000.00 without having to directly employ American staff.

Immigrant investors, their spouses and dependent children may receive conditional permanent residence for a two-year period.  The investor needs to file a petition to remove the conditions during a 90-day period prior to the 2nd anniversary of the investor’s admission as a permanent resident.  The USCIS examines the business at the end of the 2 year period to determine compliance with all of the requirements.

The investor must show he has substantially met the capital investment requirement and has continuously maintained the investment during the conditional residence period.  The conditional residence may be removed if it is determined that the business was not established or was created to avoid immigration laws or that requirements were violated.

Summary of the EB-5 Program
Basic Requirements of the EB-5 Program:

  • The investor must invest US $500,000 in an established business Regional Center in the U.S.
  • 10 full-time direct and indirect jobs for U.S. workers must be created per each investor.

Immigration Benefits for EB-5 Investors:

  • The spouse and any unmarried children under the age of 21 are eligible.
  • The only requirement for the investor is that he or she must have the required capital.
  • Permanent residents are eligible to apply for citizenship after 5 years of residency
  • There is no requirement for spoken English or prior related business experience or education.
  • The investment fund may be received through a gift.
  • The investor may work, live, or own his own business in the U.S. as well as travel in and out of the U.S. without obtaining a visa.
  • The San Francisco region is home to numerous hospitals, universities, technology opportunities as well as private and public schools and the investor's children may take advantage of reduced tuition.
  • A permanent resident may be entitled to social welfare programs such as social security.
  • The EB-5 category is a viable U.S. immigration option if the project and the application are carefully created and managed.


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