The EB-5 program was created in 1990 by Congress to spur job creation and economic growth. Through this program, immigrant entrepreneurs are allowed to apply for green cards by investing in businesses that create jobs and promote economic growth. Ten thousand visas are available each year through the EB-5 program. However, to be approved for this special visa and successfully obtain a permanent green card, alien investors must meet all the requirements of the program.
An immigrant entrepreneur is required to make a minimum capital investment in a new commercial enterprise to qualify for the EB-5 program. The minimum qualifying investment for the EB-5 program is $1 million; however, the minimum drops to $500,000 if the business is within a targeted employment area.
A targeted employment area (TEA) is a recognized area where the unemployment rate is at least 150 percent of the national average. Rural areas where job opportunities are limited can also be considered as a TEA if it is not included in a metropolitan statistical area or borders a town/city with a population of 20,000 or more.
This enterprise must have been established after November 29, 1990 or if established before or on that date, the business must be expanded through the investment or restructured to produce a new commercial enterprise. A commercial enterprise refers to any for-profit lawful business activity, which may include, but not be limited to the following business structures:
- Sole proprietorships
- General or limited partnerships
- Joint ventures
- Holding companies
- Business trusts
- Troubled existing businesses
Non-commercial activities, including owner and/or operating a personal residence does not satisfy the requirement for capital investment.
Job Creation Requirements
In addition to making a nominal capital investment, immigrant investors must show that that investment has created at least 10 qualifying full-time jobs for two years. For an employee to be considered as qualified under EB-5 requirements, the employee must be a U.S. citizen, legal permanent resident or an immigrant that has been authorized to work in the United States. This does not include jobs filled by the immigrant investor or his or her immediate family. Full-time employment is considered at least 35 hours a week.
For new commercial enterprises not within a TEA, these 10 full-time positions need to be created directly by that enterprise. For new commercial enterprises created within a TEA, the 10 jobs created can be a combination of both direct and indirect jobs. Indirect jobs are those have been created outside of the enterprise, but because of the creation of the new enterprise. In the case of an existing troubled business, the EB-5 investor will be required to maintain the existing number of employees for at least two years.
Being the EB-5 visa program provides the immigrant investor with a conditional two-year green card, the investor will need to file a Form I-829 to obtain a permanent resident green card. The investor will be required to provide proof of their investment, business financial documents and supporting documents like payroll records, tax documents and employee I-9 forms to prove the minimum 10 created jobs.
The current EB-5 program has been extended through January 19, 2018.