Friday, December 30, 2011

Immigrant Investor EB-5 Visa: Green Card Through Investment

Did you know that the United States offers a green card for a $1 million investment in a business, and in some cases only $500,000 (USD)?  In Columbus, Ohio there are ample opportunities for ambitious investors to live the American Dream, and get a greed card doing it.  You and your spouse and children can obtain green cards under the EB-5 Immigrant Investor visa.  The EB-5 visa was created by Congress in 1990 in an effort to stimulate the U.S. economy through job creation and capital investment by alien investors.  In today's economic climate, the time is now to take advantage of the EB-5 visa.  Here's why.

The EB-5 category allows alien investors the opportunity to obtain a green card for themselves, their spouses and their minor children by making a certain level of capital investments and associated job creation or preservation. In the United States today, real estate prices are depressed and money is relatively very cheap.  The dollar has lost value against certain foreign currency.  Mortgage rates are at historic lows.   What does this mean?  It means that capital investments into land and buildings can be very enticing, and affordable, for foreign investors.  In effect, foreign investors can obtain EB-5 visas at a discount never before seen in the history of the EB-5 category.
The EB-5 immigrant Investor Program
Under the Immigrant Investor EB-5 Program, foreign investors may obtain lawful permanent residency (i.e., a green card) by making a capital investment of either $500,000 or $1 million in a new commercial enterprise.  The lower $500,000 investment requires an investment in a "Targeted Employment Area" (high unemployment or a rural area).  In the United States, a rural area is an area outside a metropolitan statistical area or outside the boundary of city having a population of 20,000 people.  This means that you can invest in $500,000 in an area just outside of a major city where you can take advantage of the lower investment requirement, yet be close enough to a major city to enjoy the amenities that the city has to offer.  A high unemployment area is simply an area that, at the time of investment, is experiencing unemployment of at least 150 percent of the national average rate.  For a statutory reference for the EB-5 category, see INA section 203(b)(5) and the regulations promulgated thereunder pursuant to 8 CFR section 204.6.
New Commercial Enterprise under 8 CFR 204.6(e)
There are two basic requirements for the commercial enterprise itself.  First, it must be "new," or formed after Nov. 29, 1990.  If the enterprise was established before this date, it may qualify if the foreign investor "restructures" (see 8 CFR 204.6(h)(2) -  restructured or reorganized in such a way that a new commercial enterprise results) or "expands" (see 8 CFR 204.6(h)(3) - expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs) an existing business.  Second, the enterprise must be "commercial." "Commercial enterprise" means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to: a sole proprietorship, partnership, holding company, joint venture, corporation, a business trust or other entity, which may be publicly or privately owned.

For example, this definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.  This definition does not include noncommercial activity such as owning and operating a personal residence or nonprofit enterprise.
Managing the New Commercial Enterprise under 8 CFR 204.6(j)(5)

The foreign investor is required to "engage" in a new commercial enterprise.  It is not enough to merely own as a passive investor.  The EB-5 immigrant must be involved in the management of the new commercial enterprise either by: (i) engaging in the day-to-day managerial control of the business; or (ii) management through policy formation (i.e., such as by being a CEO).

Capital Requirements under 8 CFR 204.6(e)

The term "capital investment" means an investment cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the foreign investor, provided that the foreign investor is personally and primarily liable and that the the assets of the new commercial enterprise are not used to secure any of the indebtedness.  For example, if you take out a loan secured by your personal residence, that you own personally, this indebtedness may qualify.  But if you take out a loan secured by the equipment in the new enterprise in which you are investing, you will not have made a capital investment for EB-5 purposes. Importantly, all capital is valued at fair market value in U.S. dollars.  Under section 203(b)(5) of the Immigration and Nationality Act, assets acquired, directly or indirectly, by unlawful means (such as criminal activities) are not considered capital.
Job Creation - 10 Full Time Jobs for U.S. Workers
Politically, there is no better visa than the EB-5 Investor Visa for the sole reason that state and local governments love to create jobs in their states.  In Ohio, this is especially true.  This is because of the requirement that the EB-5 investor must create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years of the alien investor’s admission to the United States. Creating jobs makes qualifying for the EB-5 visa a matter of documentation.  The jobs do not need to be created immediately and an investor may submit a detailed business plan demonstrating the need for at least 10 full-time jobs within two years. 
EB-5 Visa "Cap"

Congress allocates approximately 10,000 immigrant visas per year to the EB-5 category (this includes visas for spouses and minor children of investors).  The "cap" has never been reached, so there are plenty of EB-5 visas available if the right opportunity exists.

Contact Immigration Lawyer Matthew R. Porter

If you are thinking about investing in a new commercial enterprise in the United States to obtain a green card for you and your spouse and children, the time is now to contact an experienced immigration lawyer.  Contact Matthew R. Porter, Esq. and learn more about comprehensive business and tax solutions.