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Permanent resident status is granted to an investor who invests in the U.S. economy a minimum of $ 1 million in a new business unit that creates at least 10 permanent jobs for the US citizens. In 1993, a significant change was made in the form of “Immigrant Investor Pilot Program”. This change was aimed at encouraging immigrant investor to invest in the designated regional centers.

New Pilot Program had dual end effect as not only that the isolated regional centers become economically active but also the pecuniary limit for the immigrant investor was reduced to half a million in a regional center against one million dollars amount that an immigrant investor was otherwise required to invest under the original scheme.

However, this requirement of investing in the regional center was introduced as an alternative to the earlier scheme of investing anywhere else in the U.S. and not as an additional requirement to the original requirement.

Three elements that must be complied with in your EB – 5 visa application are:

  • Immigrant must investment capital in the sum of at least $1 million
  • In a new commercial enterprise
  • That creates at least 10 new jobs for qualifying direct employees

“Investment” could consist of anything that has a monetary value such as cash, tangible property, etc. It can also include “promise to pay” in the form of a promissory note secured by assets that immigrant investor owns. For EB-5 visa purpose, the investor must actually put his investments at risk by investing them in a venture. An investor may not be considered to have invested in a risk-taking venture when he is guaranteed a fixed return on his investments. Thus, an investment that minimizes the risk and guarantees a particular percentage of return may not qualify as an “investment” under EB-5 program. Further, when an investor is guaranteed a right of eventual ownership than the value of such ownership rights will be deducted from the actual total amount that investor has placed at risk. The requirement to place investments at risk only applies during the initial conditional residency period of two years. At the end of two years, investor can freely receive a return on his investments as long as that return was not guaranteed at the time of making investments and also return should not include principal money.

“Newly established enterprise” must have been established after November 29, 1990. An immigrant investor will be considered to have invested in a new commercial enterprise, even when the new commercial enterprise was formed as a result of restructuring or reorganization.

Investments can be diversified in a variety of businesses, as long as investor maintains a minimum investment amount in a single commercial enterprise.

The prime requirement of investing the capital of $1 million can be vitiated, only when investor spends a capital of $ 500,000 in a ‘targeted employment area’.

‘Targeted employment area’ means a rural area or an area that has experienced unemployment of at least 150% of the national average rate. “A rural area” means any area which is not within either a metropolitan statistical area or the outer boundary of any city or town whose population is 20,000 or more. To qualify for an exempted from investing $1 million, investor must invest $500,000 in a business that is principally functioning in targeted employment area and must create a majority of the required jobs in the targeted employment area.

It is possible that multiple investors can petition together, as long as, each individual investor satisfies the required capital investment amount and that each investment creates required number of jobs. Also, the business in which investors are investing can have more than one owner who may not even seek participation under the EB-5 program. However, irrespective of whether each investor seeks to participate in EB-5 program or not, investors must be able identify their capital invested and be able to trace the lawful sources of their investments.

When multiple investors are participating, all the full-time positions that are generated in a new commercial enterprise will be allocated only to immigrant investors who are participating under the EB-5 program. An allocation of such job creating positions may not be made to non-participating investors and also to non-natural persons, e.g., investing corporation. Multiple EB-5 investors petitioning through different regional centers or from a single regional center may not claim credit for the same specifically identified job position that has already been allocated in a previously approved case.

The immigrant investor must establish that he or she is the legal owner of the capital invested. Also, the assets invested in an enterprise under the EB-5 program must not be illegal, that is, the investor should be able to show that the investments enter the U.S. economy come from legal sources. Investor must show that he is the owns investments lawfully.

To prove that investments are earned through a lawful channel, Investor must show following requirements in his petition:

  • Foreign business registration records, or
  • Tax returns filed within last five years by investor either in his personal capacity or through an entity in which investor has a major share, or
  • Evidence showing source of capital as belonging to investor, or
  • Certified copies of any judgments or pending governmental, civil or criminal actions, governmental administrative actions and any private civil action that involves monetary claim or judgments against the immigrant investor issued by any court irrespective of whether it is being issued by any court within US or outside as long as such judgment has been issued within last 15 years.

Immigrant investor must play an active role and not a merely passive role in the functioning of new commercial enterprise either by performing day-to-day managerial responsibility or through policy formation. It must be shown in the petition, the title or position that investor is going to hold and also a description about his roles and duties. Evidence can also be given if the immigrant investor is going to be a corporate officer or a member of corporate board of directors.

Investing immigrant gets permanent resident status in the U.S. for two years which is called conditional residency period. After successfully sustaining the investment during two years of conditional residency period and conforming to the requirements of EB-5 program, all the conditions will be removed and the immigrant investor becomes an unconditional lawful permanent resident.

In case, material changes happen to the original business plan after filing form I-526, investor must file a new form I-526. If there are material changes after original filing I-526 and no fresh I-526 form has been filed, USCIS may not approve form I-829 for removal of conditions on the permanent residency status.

We, at the Law Offices of Aditya Surti, LLC can help you in applying for change of status/ extension/adjustment of status to a different visa. To schedule your appointment contact us at 201-518-6642201-518-6642 (Jersey City Office), 732-750-1269732-750-1269 (Woodbridge Office). You can also email us at info@surtilaw.com.