Employment-Based Immigrant Visas Fifth Preference
On March 15, 2022, President Biden signed the spending bill into law, which included the provision of an employment-based fifth preference immigrant investor program that increases the minimum investment requirement. The EB-5 visa program was created through the Immigration Act of 1990 by Congress to sustain the U.S. economy and give foreign entrepreneurs a way to invest in American enterprises and permanently stay and work in the U.S.
With this category, investors may get permanent residency if they invest a minimum of $1,050,000 in a commercial enterprise that creates a minimum of ten full-time job positions for domestic workers.
Having provided counsel in the EB-5 area for many years, our clients benefit from the deep insight we have gained from decades of experience and success in the EB-5 industry. To schedule an initial confidential consultation at our Portland, Oregon, Los Angeles, California, or Seattle, Washington offices, call us at (503) 427-8243, or schedule a consultation here.
EB-5 Investor Green Card Requirements And Eligibility
If you make an investment of $1,050,000 (or $800,000 in targeted employment areas) in a commercial enterprise in the U.S. and plan to create or preserve at least ten permanent full-time jobs for qualified U.S. workers, you may be eligible to receive a green card as an EB-5 investor. This program was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. It requires that your investment must be in a “new commercial enterprise,” meaning your investment must be in a company established after November 29, 1990. If it is in an enterprise established on or before November 29, 1990, it must either be purchased and restructured in a way that a new commercial enterprise results or expanded through your investment so that at least a 40% increase in net worth or number of employees occurs. The regulations designate approximately 10,000 visas each fiscal year for immigrant investors, including their spouses and unmarried children under the age of 21.
Investing in a regional center
USCIS designates certain regional centers for participation in the immigrant investor program. An EB-5 regional center is a public or private economic unit in the United States that is involved with promoting economic growth. The goal of the regional center program is to stimulate economic growth in a specific geographic area. It offers an immigrant investor already-defined investment opportunities, thereby reducing their responsibility to identify acceptable investment vehicles. A regional center can be associated with one or more new commercial enterprises. Today, hundreds of regional centers throughout the U.S. are approved by USCIS. However, USCIS approval of an EB-5 regional center does not in any way constitute its endorsement of the activities of that regional center, guarantee compliance with U.S. securities laws, or minimize or eliminate risk to the investor. Investors must do their due diligence and seek professional advice as necessary when making any investment decisions.
What is meant by commercial enterprises in immigration law?
The groundwork of an EB-5 visa is the planning for or existence of a commercial enterprise. It is essential to understand exactly what the immigration services (USCIS) and United States Citizenship consider a “commercial enterprise.”
A commercial enterprise means any for-profit activity that has been created for the ongoing conduct of a lawful business enterprise, including but not limited to:
- Business trusts
- Sole proprietorships
- Joint ventures
- Publicly or privately owned entities
EB-5 green card processing
The EB-5 visa application entails a multi-step process. Brief information is given below.
After filing Form I-526, Immigrant Petition for Alien Investor, you can file Form I-485 at the same time if you are within the U.S. If you are not in the U.S., you will need to go through consular processing. Consular processing involves visiting a designated U.S. consulate in the country where you reside. You will need to complete a DS-260 online immigrant visa application there. You must also participate in a one-on-one interview with a visa officer. You will be asked questions about your background, investment, and plans in the U.S. This interview will be to ensure your application is legitimate.
What happens if my EB-5 application is rejected?
You may get an unfavorable outcome of your EB-5 petition, especially if you petition on your own. In that case, you are left with the below options.
If you have come across new evidence or documents that may change the decision, you might be able to file a motion to reopen your case. Also, you can file a motion to declare that you believe the visa reviewing officer was not correct in their decision. However, you will be required to prove this from a lawful standpoint, something that should only be attempted with the assistance of a seasoned immigration lawyer.
You may also be able to appeal to a third party, the Administrative Appeals Office (AAO), for a review of your case. However, understand that the AAO is part of the USCIS, and they do not usually overturn their officers’ decisions.
Advantages of the EB-5 category
There are various benefits of the EB-5 visa category. The benefits of the EB-5 over other visas are as follows:
- There is no need to get a permanent job offer in the U.S.
- There is no requirement to demonstrate extraordinary ability.
- There is no need to submit PERM labor certification.
- You do not need to prove there is a shortage of U.S. workers to perform the work.
- There is no need to maintain an already established home-country business. You are allowed to shut down your business in your home country and still get your green card.
Why do I need an EB-5 lawyer?
We understand that when something as significant as an investment of over a million dollars is at stake, you don’t want to leave anything to chance. Your immigration attorney at Passage Immigration Law will assist you in gathering your documents, filing your petition, making all the correct payments, and addressing any unexpected matters.
Our immigration lawyers at Passage Immigration Law will prepare and file the required applications and supporting documentation on your behalf. For additional information on how we can help you qualify for and obtain an EB-5 green card, contact us today at (503) 427-8243, or you may schedule a consultation here.