The Immigrant Magazine. Resources for Immigrans in America.

Immigration Issues

 

Fast Track Green Cards Through Investment,

By Mark Ivener, Attorney

For foreign investors looking for freedom and flexibility to live and work in the United States in a way accommodating to their lifestyles, the little-known EB-5 investor category can provide an excellent opportunity to accomplish this goal through the obtaining of Green Cards.  

There are essentially two EB-5 programs, i.e. the Regular program and the Regional Center program.  In order for an applicant to qualify under the Regular program, the following three basic requirements must be met:  investment in a new commercial enterprise; investment of at least $1 million (or $500,000 in certain cases) into the business, and creation of employment for at least 10 full-time U.S. workers.

The investment may consist of the contribution of various forms of capital, including cash, equipment, inventory, property, and other tangible equivalents. An investment amount of $1 million is generally the minimum.  However, $500,000 is acceptable if the business is situated in a “targeted” employment area, i.e. one that has experienced unemployment of at least 150 per cent of the national average rate or a rural area.     

The second program within the EB-5 category, i.e. the Regional Center program, which generally requires an investment of  $500,000 plus costs, is ideal for the retiree or inactive investor due in large part to the “indirect employment” feature of this program. The Regional Center program advantageously removes the 10 full-time employee requirement of the Regular program and substitutes the less-restrictive “indirect employment creation,” which allows the investor to qualify by proving a combination of 10 direct and/or indirect new employees.

The EB-5 policy management requirement is minimal in that the investor can be a limited partner and still qualify as long as the limited partners have a policy making role.  Thus, for those who are not interested in day-to-day management or running an active business, Regional Center programs offer a more acceptable inactive form of investment, than do most Regular program investments.

Another advantage of Regional Center programs that adds to the flexibility of this Green Card category is that the investor is not required to live in the place of investment; rather, he or she can live wherever he/she wishes in the United States. 

Under mandate by Congress, Regional Center EB-5 petitions are given priority by CIS (formerly   INS) which, among other benefits,  results in a quicker path to approval.  Each Regional Center program must be pre-approved by CIS in order to be eligible to

qualify for EB-5 Green Cards.  An example is a real estate limited partnership program that offers an investment in commercial properties in a major city for both accredited immigrant and U.S. investors.  This program generally involves purchasing low-yielding industrial or commercial  properties with invested funds and converting them into mortgage free higher-value commercial properties, including a hotel, office space, retails shops, storage space, etc. 

In filing an EB-5 Investor  petition, the investor must present evidence that traces the funds through bank transfers and other documentation, from the investor directly to the enterprise as well as the last 5 years tax returns.  The money can be the investors own funds or in the form of a loan or gift, which would allow a parent to gift a son or daughter. 

After the investor completes a thorough business and financial due diligence analysis of the viability of the Regional Center business opportunity, the investment is made and an I-526 petition is filed by the foreign investor with CIS, requiring CIS to approve that the applicant and the investment are eligible for EB-5 status, which takes an average of 6 months.  Even if the investor has overstayed a visa, as long as he/she has filed pursuant to Section 245(i) and the investment funds were not earned while out of status, an Investor Green Card can be obtained. 

If the investor is already in the U.S., he or she then applies for a Green Card through CIS.  Generally, no interview customarily is required, and approval for most cases has been taking approximately 12 months.   If the investor resides abroad, an application for the Green Card is generally made at the U.S. Embassy or Consulate in the investor’s home country, where an interview is necessary.  Approval of the Green Card in this case takes on average also about 9-12 months.

In either of the above two scenarios, in most Regional Center cases, the entire application  process generally takes about 15-18 months.  This is the situation for most applicants based on the current CIS and State Department Consular processing times, however times may vary depending on the circumstances of each case.

Once CIS approves the investor’s Green Card, it is conditional for a period of two years.  Conditional Green Card status confers the same rights as the permanent Green Card.

Between 21-24 months after the conditional Green Card has been approved, the investor must reconfirm that the investment has been made or is still in place and that the employment requirement has been fulfilled or maintained.  An I-829 application to remove the conditional Green Card status is then filed with CIS. 

Once the condition has been removed, a full Green Card is granted for permanent resident status. From the time of application for the conditional Green Card until approval of the Removal of Conditions usually takes about 4 + years.  Thereafter, in an approved Regional Center case, depending on the terms of their agreement, the investment may be sold, and the investor will still maintain the permanent Green Card. 

In summary, freedom to live anywhere in the United States, a passive form of investment with no required direct management responsibilities, priority standing within the Immigration process, and an accelerated path to Green Card procurement – all are important factors which make the little-known EB-5 Green Card Regional Center category an ideal vehicle for the inactive investor or retiree who wishes to live and work in the United States. 

As with other U.S. Immigration visas, applicants also need to take into account U.S. and foreign tax and other business and personal planning considerations.

Copyright ã 2008 Mark Ivener   All rights reserved.

Mark Ivener, managing partner of Ivener & Fullmer LLP, a business immigration law firm in Los Angeles and New York, has been practicing immigration law for over 35 years and is the author of 5 books on immigration law and visas. 

Email:  mark@usworkvisa.com        Web: www.usworkvisa.com

Disclaimer:  Nothing on these pages should be taken as legal advise for any individual case or certain situation.  The information is general and should not be relied on upon for any specific situation.  For legal advice, please contact one of our attorneys.

All content is copyrighted by IVENER & FULLMER LLP 2008.  All rights reserved.  No portion of this article may be duplicated without permission.  Services relating to immigration and naturalization provided by Ivener & Fullmer LLP are provided by active members of the State Bar of California or by a person under the supervision of active members of the State Bar of California.

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