A BUSINESS DEVELOPMENT COMPANY
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1. The government must not have met its annual quota for issuing EB-5 visas. The government has capped the number of EB-5 visas at 10,000 per year while reserving 3,000 visas for those investors who invest in businesses located in economically challenged areas of the country. Those areas are called Targeted Employment Areas. They are either rural areas or areas experiencing one and a half times the national average unemployment rate. Generally, the government has made it easier to qualify for an EB-5 visa for investments in Targeted Employment Areas. Since the visa was created in 1990, however, the government has never reached its quota of 10,000 visas per year.
2. The investor has, or is in the process of investing $1,000,000 of capital in a new enterprise located in the U.S. The amount for Targeted Employment Areas is only $500,000. Foreign investors may join other foreign investors or American investors in the investment. However, each foreign investor must contribute the minimum amount required. The investment must be entirely new capital. Therefore, an investor cannot reinvest profit or interest gained from the new enterprise in order to reach the minimum amount required.
3. The investor must expose the investment to risk. Therefore, a loan where the investor is guaranteed repayment is not considered an investment that carries risk.
4. The new enterprise must be newly established in the U.S. since 1990, and it must be designed to generate a profit. Investments in non-profit organizations do not qualify. The investor may, but is not required to create the new enterprise. The investor has four options. First the investor may create a new enterprise. Second, the investor may invest in an enterprise established after 1990 if the investment will increase the enterprise’s net worth or number of employees by 40%. Third, the investor may invest in an already existing newly formed enterprise called a Regional Center. There are approximately 300 Regional Centers established across the country. Regional Centers are newly created enterprises designed to make a profit for EB-5 investors. Regional Centers in turn invest in local projects. Fourth, the investor can create a new Regional Center.
5. The investment must create 10 full-time jobs for U.S. citizens or legal permanent residents. Independent contractor positions and positions filled by non-immigrants do not count. Unlike the other investment options, an investor in a Regional Center may indirectly create 10 jobs through its various local projects. Enterprises other than Regional Centers must directly create 10 jobs within the enterprise. The fact that Regional Centers are already established and can indirectly create the required number of jobs makes Regional Centers attractive to foreign investors seeking EB-5 visas. If a foreign investor has joined other investors, whether foreign or American, 10 jobs must be allocated to each foreign investor.
Although the EB-5 visa offers a path to U.S. citizenship for foreign investors, it may not be the ideal path for every foreign investor having the capital to invest. Because there is a risk of losing some or all of one’s investments, foreign investors who have only little more than the minimum required of capital may be better off seeking other paths to U.S. citizenship. There is also a significant amount of time and work involved in the process, particularly if an investor chooses to create a new enterprise.
You should consult with an immigration attorney to decide whether it is the best path for you.