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Alien Entrepreneurs (EB-5)
Permanent resident status is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested or are actively in the process of investing the required amount of capital into a new commercial enterprise. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.\
In order to apply for permanent residency as an alien entrepreneur, the petitioner must invest in a new commercial enterprise. The new commercial enterprise must:
· Create at least 10 full-time jobs for U.S. workers;
· Benefit the United States economy; and
· Be one in which the applicant has invested or is in the process of investing at least $1 million that is at risk.
The law requires that the petitioner is investing in a "new" commercial enterprise, which must have been one established after November 29, 1990. However, contribution of capital to an "existing" business (that was formed prior to November 29, 1990) may be acceptable in two situations:
· First, the investor may substantially reorganize or restructure the existing business. The mere change in ownership, cosmetic changes to the decor of the business site, and implementation of a new marketing strategy are insufficient changes to constitute establishment of a new commercial enterprise. A complete transformation of the nature of the business is likely to be considered sufficient.
· Second, the investor may expand an existing business resulting in an increase of at least 40 percent of the net worth or number of employees of the business. USCIS requires evidence of the change in business in the form of income tax returns, audited financial statements, and employment tax returns.
The law further requires that an investment create full-time employment – at least 35 hours of work per week – for at least 10 U.S. workers. Individuals that qualify for U.S. workers include: U.S. citizens, lawful permanent residents, and other immigrants that are authorized by law to work in the United States. Neither the investor, the investor’s spouse nor the investor’s children may be included in the count of 10 U.S. workers. Individuals in nonimmigrant status do not count in fulfilling the 10 worker requirement. It is not necessary that the 10 U.S. jobs are directly created by the investment. Indirect creation of jobs is sufficient.
USCIS requires that the entire amount of requisite capital be invested and at risk in the commercial enterprise at the time that the immigrant petition is filed. “Capital” is defined as cash and cash equivalents, equipment, inventory and other tangible property. USCIS does not consider retained earnings or loans as “capital.” If the alien entrepreneur uses his or her own assets to secure a debt, it may be considered capital by USCIS as long as the alien is personally and primarily liable for the debts and assets.
The capital invested in the commercial enterprise must be shown to have been legally acquired. The following documentation is required to establish that the capital was acquired by legitimate means:
· Foreign business registration records;
· Personal and business tax returns, or other tax returns filed anywhere within the previous five years;
· Documents identifying any other source of money; or
· Certified copies of pending government civil or criminal actions and proceedings, or any private civil actions involving money judgments against the investor within the past 15 years.
Out of the 10,000 visas available to alien entrepreneurs, 3,000 are set aside for aliens investing in “targeted employment areas,” defined as a rural area or an area that has experienced high unemployment of at least 150% of the national average. A “rural” area is defined as an area not within a metropolitan statistical area or the outer boundary of any city or town with a population of 20,000 or more.
A separate allocation of 3,000 out of the 10,000 visas is set aside for those applying under a pilot program, involving a commercial enterprise located in a “Regional Center.” If applying in a regional center, applicants may qualify for permanent residency as an alien entrepreneur by investing only $500,000. A regional center is defined as
· Is an entity, organization or agency that has been designated as such by USCIS;
· Focuses on a specific geographic area within the United States; and ,
· Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
When applying as an alien entrepreneur in a regional center, an applicant needs to:
· Show that a "qualified investment" (see below) is being made in a new commercial enterprise located within an approved Regional Center; and,
· Show that at least 10 jobs are created directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.
An applicant seeking EB-5 status in a Regional Center must make the qualifying investment (i.e., the amount required under the regular program). If the commercial enterprise is involved directly or indirectly in lending money to job-creating businesses, it may only lend money to businesses located within targeted employment areas to take advantage of the lesser capital requirement of $500,000.
To seek status as an alien entrepreneur, the applicant must file Form I-526, Immigrant Petition by Alien Entrepreneur, accompanied with documentation to show that the investment meets all necessary requirements. Once the Form I-526 is approved, immigrant investors may obtain status as a conditional resident by filing Form I-485, Application to Register Permanent Residence or Adjust Status, if residing within the United States or initiating Consular Processing if residing outside of the United States. In order to become a lawful permanent resident, eligible investors must file a Form I-829, Petition by Entrepreneur to Remove Conditions. Form I-829 must be filed within 90 days before the second anniversary of an Alien Investor’s admission to the United States as a conditional resident.
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