Initial Application for EB-5—Fifth-Preference Employment-Based Immigration
The fifth-preference of employment-based immigration (EB-5) is available to foreign investors and their immediate family members. In order to qualify for this visa, investors must first obtain their approval for an immigration petition. Once this is approved, investors and their immediate family must do one of two things: 1) apply for consulate counseling if they will be applying from outside the United States; or 2) file for an adjustment of status if filing from within the United States. Once this is approved, in either of the aforementioned instances, the investor and his or her family will be granted a conditional period of residence for two (2) years. The condition must be removed within those two years if the investor wants to obtain permanent residency that will not be subject to time restrictions. Once permanent residency has been granted, the investor and his or her family may freely work and live in the United States.
The following represent the basic requirements that foreign investors will need to satisfy before obtaining permanent residency in the United States under this fifth-preference of employment-based immigration:
1) There will need to be a minimum investment.
Investors must actually invest or be in the actual process of investing one million U.S. dollars ($1,000,000) in a business within the United States. However, it should be noted that applicable laws provide the United States Citizenship and Immigration Services (USCIS) with discretionary flexibility to lower and raise the amount of investment that any given investor must make into a U.S. business. For instance, the USCIS may require that investors make an investment of anywhere up to three million dollars ($3,000,000) in areas of high employment.
In target areas of employment, however, the investment may be lowered anywhere down to five-hundred thousand dollars ($500,000). Target areas are defined as the following: 1) rural areas that are outside of metropolitan areas or with populations lower than 20,000 people; or 2) any area with an unemployment rate that is one hundred and fifty percent (150%) above the national average. In order for an area to be considered a target area anywhere in Texas, the local mayor must submit a written statement claiming just that.
2) Capital will need to be actually committed.
Investors will be required to actually put their own capital at risk for the purposes of generating a return on their capital in the future. Bearing that in mind, investors may not simply provide a business with a loan nor may they simply promise to place an investment in the business sometime in the future. Accordingly, an actual investment must be made with cash or other assets.
The following would be considered to be an actual financial commitment to a business in the United States: 1) the direct deposit of cash into the business’s bank account without any intrinsic promise to repay the investor for that investment; 2) the transfer or actual purchase of assets that are needed by the business; or 3) the investment of cash into an escrow account whose single condition for release to the company is the USCIS’s I-526 petition approval.
3) Capital must be demonstrated to have been legally acquired.
Investors must be able to prove that the capital used to make their investment was acquired through legal means—for example, through gift or inheritance. As such, investors must be able to submit documentation that shows how and when the capital was acquired. Acceptable pieces of documentation may include tax returns, business records, deeds to property, bank statements, proof of sale for business or property.
The capital used for investment may be acquired as a loan, though the loan must be acquired from an acceptable third-party such as a bank. However, any loan that an investor is able to acquire must be guaranteed by the investor’s personal assets and not those of the business. Moreover, the loan must be repaid within the two year period of conditional residence in the United States.
4) Invest in a new business or a struggling business.
The investment must be used to create a new business or to stabilize a struggling business in the United States. The creation of a new business may be established through the following means: (a) by establishing a brand new business (established after November 29, 1990); (b) by buying and restructuring an existing business; or (c) by investing in a business that already exists and, thereby, increasing either the number of people employed by the business or the net worth of the business by a margin of forty percent (40%).
Alternatively, the investment may be put into a struggling business. Struggling businesses are defined as any business that has existed for at least two (2) years and that has lost at least twenty percent (20%) of its net worth.
5) The investment must create jobs.
These investments are intended to stimulate the U.S. economy through job creation; in almost every case, the investment must create at least ten (10) new full-time jobs that may be filled by citizens of the United States, permanent residents, or any other immigrant that is legally eligible to fill the position. However, immediate family members may not count toward the ten (10) full-time positions you will be required to create. Full-time employment will be defined as positions that require at least thirty-five (35) hours of work every week.
There are two important exceptions to this general rule: 1) Investments into struggling businesses will not need to generate ten (10) new positions. Instead, these types of investments only will need to maintain the existence of any position that was available before the investment; and 2) this requirement to create jobs will be relaxed if investors choose to invest in an area with a regional center designation, wherein generated revenue results in exports.
6) Investors must be engaged in management.
Investors need to be either engaged in the day-to-day management of their respective businesses or they will need to be engaged in the creation of business policy. It is possible for investors to satisfy this requirement by either holding corporate office or by claiming a seat on the board of directors.
7) There may be additional requirements.
Generally speaking, the investor and any immediate family that will be accompanying him or her must be qualified to apply for permanent residency in the United States. For instance, certain criminal convictions may make a person ineligible for residency in the U.S.—as such, it must be noted, a criminal conviction will not necessarily make an applicant ineligible for immigration.
The Austin EB-5 immigration attorneys at the William Jang, PLLC, charge the following in attorney’s fees for normal cases that are filed from within the United States with the U.S. Citizenship and Immigration Services (USCIS) (please take a moment to look over this disclaimer), in addition to the filing fees that are currently charged by the USCIS at every stage of the process:
- $5,000 in attorney’s fees to cover the immigration petition
- $3,000 in attorney’s fees to draft a business plan (not including the CPA fee)
- $1,500 for cover the fee charged by the USCIS
- $5,000 in attorney’s fees for the adjustment of status per immediate family member
- $1,070 for every person, or $635 for anyone under the age of 14
- $5,000 in attorney’s fees to cover the removal condition
- $3,750 for the fee charged by the USCIS to petition the removal condition
What will I need to begin the process?
Consult with an Austin EB-5 Lawyer in Austin
At the William Jang, PLLC, our Austin EB-5 immigration attorneys can advise you and help you through every stage of the EB-5 immigration process. To discuss the particulars of your situation with an Austin immigration attorney, please call our Austin offices at today.