What is E-5 Visa?
Without having to find an employer, applicants can migrate to live, work, study and retire, if they hold an EB-5 visa. To obtain the so-called Golden Visa, the applicant will need to invest and create jobs in a new American commercial enterprise that was established:
- After 29 November 1990 OR
- On or before 29 November 1990, but either purchased and restructured/reorganised in such a way that a new commercial enterprise results or expanded through the investment resulting in at least 40% increase in the net worth or number of employees
How do you qualify for the E-5 Visa?
To qualify for an EB-5 visa, you are required to invest a minimum of $1,800,000 in a US business. If your investment is located in an economically depressed area called a “targeted
employment area”, you may be eligible to invest a reduced amount of $900,000.
Additionally, you must create 10 full-time jobs for US workers. It does not have to be the same individuals as long as the position available is full-time. The business must also be a commercial business that is for-profit. Real estate investments and non-profit enterprises such as bonds or trade do not qualify for EB-5.
To get an EB-5 visa, an investor can make a direct investment or you can invest in a regional center.
What are the requirements of the E-5 Visa?
- You must be a ‘new commercial enterprise’
- You must invest at least $1,800,000 USD in the new commercial enterprise (note exception for Targeted Employment Area)
- Your investment must lead to the creation of at least 10 full time jobs for US workers
- Your investment funds must be “at risk”
- The funds used for your investment must have been lawfully obtained
- You must engage in the management of the new commercial enterprise
What is the process to apply for the E-5 Visa?
- Invest into a business and file the Form I-526 – you must show that you have invested or are actively in the process of investing your capital into the new commercial enterprise. You can transfer the funds into an escrow account. (The release of funds would be conditional on I-526 approval and adjustment of status
or visa issuance.)
- Get the I-526 is approved, you are eligible to apply for conditional permanent residency (a 2 year conditional green card).
- During the 2 year conditional period you must meet the EB5 requirements i.e. creating 10 full-time jobs for US workers and maintaining an “at-risk” investment in the project.
- After the 21 months of the conditional period you can file Form I-829 to request the conditions be removed and obtain a permanent green card.
What is a Commercial Enterprise?
A commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful businesses, including:
- A sole proprietorship
- Partnership (whether limited or general)
- Holding company
- Joint venture
- Business trust
- Other entity, which may be publicly or privately owned
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries if each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
It does not include non-commercial activity such as owning and operating a personal residence.
Definition of “new commercial enterprise”
- A New Commercial Enterprise is a for-profit business, conducting lawful activities, that was established after November 29, 1990.
- The activity conducted by a new commercial enterprise must be commercial. Purchasing real estate will not qualify.
What are the Investment Requirements?
The applicant is required to invest capital valued at fair-market value in US dollars into a commercial enterprise to gain lawful permanent resident status through EB-5 visa.
The meaning of capital includes:
- Other tangible property
- Cash equivalents
- The indebtedness secured by assets owned by the applicant
A loan from the applicant to the new commercial enterprise does not count as the contribution of capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation or any other debt arrangement between the applicant and the enterprise is not a capital investment.
There are two investment options available for the EB-5 visa, Targeted Employment Area and High-Employment Area (direct/standard) and the minimum investment amounts are separated by filing date and investment location:
|Petition Filing Date||Minimum Investment Amount||Targeted Employment Area Investment Amount||High-Employment Area Investment Amount|
|On or after 21/11/2019||US$1,800,000||US$900,000||US$1,800,000|
For petitions filed before 21 November 2019, the applicant must invest at least US $1,000,000 or $500,000 in a targeted employment area. Post this date, the investment amount increased to $1,800,000 and $900,000 respectively.
What is Targeted Employment Area? Why does the investment amount decrease by 50%?
A Targeted Employment Area (TEA) is a rural area other than an area within a standard metropolitan statistical area (MSA) or within the outer boundary of any city or town having a population of 20,000. High unemployment area that has experienced unemployment of at least 150% of the national average rate is also considered TEA. So, to encourage applicants to invest in areas of greatest need, TEA’s minimum investments including job creation and the role of the investor in the enterprise are less strict than the direct pathway.
What are the Job Creation Requirements?
One of the main requirements of the EB-5 visa is to create at least 10 full-time jobs for qualifying US employees (US citizens, permanent residents, asylees or refugees). If the applicant chooses to invest in the direct pathway, the 10 full-time positions must be employed within the enterprise (direct jobs). Whereas if invested in a regional centre, full-time positions can include both direct and indirect jobs. Indirect jobs are held outside of the enterprise but are created because of the new commercial enterprise.
If the applicant is investing in a troubled business, including a troubled business in the regional centre, the applicant must prove that the number of existing employees in the business is being or will be maintained at no less than the pre-investment level at least 2 years. If the business does not have 10 employees, applicant will need to preserve the existing jobs and create positions to reach the 10 employee minimum.
To meet the regulatory definition of a troubled business, the business must have existed for at least 2 years, has incurred a net loss for accounting purposes during the 12 months of 24 months period before the priority date on the Immigrant Petition by Alien Investor (Form I-526) and had a loss for the same period at least equal to 20% of the troubled business’s net worth prior to the loss.
What qualifies as a Regional Center?
- Regional centers are specialized companies that collect investment funds from multiple EB-5 investors to fund a large-scale project such as a resort or apartment complex.
- Direct investment is any investment not made in a regional center. Examples of direct investments are if you start your own business or purchase an existing business such as a
franchise like a subway o Dunkin donuts.
What is the role of the Investor?
If the applicant wants to be involved in the majority of operation control over the invested enterprise and be involved in the day-to-day operations of the business, the direct pathway may be the best option for the applicant. However, if the applicant wishes to have very little or no involvement in the day-to-day operations, investing in a regional centre is recommended. Even though there is a requirement that all EB-5 applicants must be engaged in the management of the new commercial enterprise, an applicant investing in a regional centre can meet this requirement by showing that he or she is a limited partner and therefore have less control of the business – generally limited to basic voting rights.