EB – 5 Fifth Preference—Employment Based Immigration
For immigrant investors and their families, EB-5 Fifth Preference Employment Based Immigration status (Green Card) is available. Once an immigrant investor has successfully filed an immigration petition, the investor must then take one of the following steps: apply for consulate processing (when not in the U.S.) or file for an adjustment of status (when in the U.S.). Upon approval, an investor, along with his or her family, may live in the U.S. for two years with conditional residence. Within those two years, the investor will need to be approved for permanent residence in order to remain in the U.S. Additionally, individuals with conditional and permanent residence in the U.S. will be able to live and work in the U.S.
The general requirements to obtain permanent residence under the EB-5 category are as follows:
1) Minimum Investment:
To be considered for EB-5 immigration status, an individual must have already invested or be in the process of investing at least US$1,000,000 of capital in a U.S. business. However, the United States Citizenship and Immigration Services (US CIS) may lower or raise the amount of this minimum investment. For instance, in areas of high employment, the US CIS may require as much as a US$3,000,000 minimum investment. In some targeted areas, the minimum investment may be as low as US$500,000. To be considered a targeted area, it must be a rural community with a population of less than 20,000 people or in an area where the unemployment rate is at least 150% of the national average. In Texas, a written statement from a local mayor is required for any area to be considered a targeted area.
2) Actual Commitment of Capital:
Furthermore, this capital (minimum investment) made by investors must be put at risk in the marketplace for the purposes of creating a return on that capital. As such, an investor’s loan to a company or promise to invest in the future is not considered to be an actual commitment of capital. However, an investment may be made in cash or other property. The following are examples of an actual commitment of capital: 1) the deposit of the minimum investment into a company’s bank account without any obligation on their part to pay the investor back; 2) the actual purchase and transfer of requested assets to a company; 3) the deposit of an acceptable sum of money into an escrow account which would be released to a company should the US CIS deny the investor’s permanent resident application.
3) Lawful Means:
In every case, the funds being invested as part of the EB-5 immigration status must have been obtained through legal means, including by gift or inheritance. Satisfactory documentation must be submitted as part of the investor’s application in order to sufficiently establish that all funds were legally obtained. Proper documentation may include business records, bank statements, tax returns, proof of ownership of properties, and proof of sale of businesses and properties. Additionally, obtaining the initial investment through a loan from a bank or other third party is also considered legal means. However, any loan used as capital must be guaranteed by the investor’s own assets (and not a company’s assets) and must be paid in full within the two years of conditional residence in the U.S.
4) New Enterprise or Troubled Business:
This investment must be used to either rescue a struggling commercial business or establish an altogether new commercial enterprise. To be considered a new commercial enterprise, an investor must have: 1) created a completely new business from scratch (as established after November 29, 1990); 2) restructured an existing company; or 3) made an investment in an existing company that increased the net worth of the business or the number of employees by at least 40%. To be considered a troubled business, a business must have been in existence for the last 2 years and therein sustained a net loss of at least 20% of its net worth.
5) Job Creation:
Any investment must benefit the U.S. economy and create, under most circumstances, at least 10 full-time jobs. While immediate family members may not be employed to satisfy this requirement, any U.S. citizen, permanent resident, or immigrant legally authorized to work in the U.S. may do so. To be considered full-time employment, each position must offer work for at least 35 hours per week. However, there are two exceptions to this requirement: 1) when investing in a struggling business, 10 jobs do not need to be created—rather it is only required that the number of jobs be maintained at pre-investment levels; 2) the job creation requirements may be relaxed when a business is in an area with a regional center designation, such as areas where the generated revenues result from exports.
In any business or company that an investor invests his or her capital, the investor must be engaged in the actual management of the company, whether through day-to-day management or the formation of policies. Furthermore, this requirement may be fulfilled should an investor hold a seat on the board of directors or a corporate office.
7) Other Requirements:
Additionally, the investor and every member of the immediate family that will be accompanying the individual must be qualified to obtain permanent resident status. For instance, no individual should have a criminal conviction that would make them ineligible for permanent residency. Furthermore, it should be noted that not every criminal conviction will make an individual ineligible for permanent residency in the U.S.
At the Law Office of William Jang, PLLC, our legal team charges the following amounts in attorney’s fees for a typical EB-5 application filed in the United States with the U.S. Citizenship and Immigration Services (US CIS) (please read the disclaimer on this page), in addition to the filing fees currently charged by US CIS:
- $5,000.00 attorney’s fees for the immigration petition.
- $3,000.00 attorney’s fees for drafting business plan (will also have CPA fee)
- $3,675.00 US CIS filing fee for the immigration petition.
- $5,000.00 attorney’s fees per immediate family for adjustment of status.
- $1,225.00 per each person ($750.00 for each person under 14 years of age)
- $5,000.00 attorney’s fees for removing condition.
- $3,750.00 US CIS filing fee for the removal condition petition.
What do we need to get started?
- Documents and Information required for an EB-5 Immigrant Investor
- Documents and Information required for the Removal of Condition
- Sample Retainer Agreement
Terms of Usage:
While the information provided on this website may be of use in a general nature, it may not necessarily apply to any particular set of facts or circumstances. As such, it should be noted that this website does not necessarily reflect the most recent legal development concerning the EB-5 immigration status. Furthermore, this information is general in nature and purpose and may not be construed as legal advice and, therefore, does not necessitate a client-attorney relationship. To discuss any particular questions with one of our Austin lawyers at the Law Office of William Jang, PLLC, or if you want to retain legal representation, please call our Austin offices at .
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