EB-5 FILE - FR

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EB-5 Visas

Attorney, Camilo A. Espinosa, Esq.

Attorney, Harry Tapias, Esq.

INVESTOR VISAS

ALL YOU NEED TO KNOW

May 30, 2015


ADVANTAGES

No quota wait

No job offer or employer sponsorship required

Spouse and children included

In state tuition possible

Geographical flexibility

Employment flexibility


VISA DESCRIPTION

The EB-5 Immigrant Investor Program is available to those immigrants who have invested, or are in the process of investing, at least $1 million in a new commercial enterprise employing at least 10 full-time U.S. workers.

The purpose of the EB-5 program is to stimulate the U.S. economy through job creation and capital investment by offering immigrant investors the

benefits of permanent residency in the United States.


WHO CAN APPLY?

EB-5 investors may be eligible for an EB-5 immigrant visa if they have invested or are actively in the process of investing the required amount of capital into one of the following for-profit business-types:

A new commercial enterprise

An enterprise which will expand to 140% of pre-investment net worth or number of employees, or;

A troubled business in which jobs will be preserved


CAPITAL INVESTMENT STRUCTURES

There are 3 ways to invest in the EB-5 Category:

1. New commercial enterprise

This means any for-profit activity formed for the ongoing conduct of lawful business

Established after November 29, 1990

1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or

2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

Includes but is not limited to:

• Sole proprietorship• Partnership (limited or general)

• Holding company• Joint venture• Corporation Business trust or other entity, which may be publicly or privately owned


CAPITAL INVESTMENT STRUCTURES (CONT.)

2. Troubled Business

The enterprise that has been in existence for at least 2 yeas and has concurred a net loss during the 12 or 24 month period prior to the priority date on the immigrant investor’s form I-526.

Loss for this period must be at least 20% of the troubled business’ net worth prior to the loss.

3. Regional Center Pilot Program

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment.

It has a targeted investment program within a defined geographic region.


EB-5 CAPITAL INVESTMENT REQUIREMENTS

Capital refers to cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur.

The standard capital investment requirement for an EB-5 investor is $1 million.

The capital investment required for an EB-5 investor in a targeted Employment Area (TEA) which is either in a high unemployment area, (area with unemployment rate that is at 150% of the national average), or a Rural Area (RA) is $500,000.

Congress has reserved 3,000 of the 10,000 EB-5 visas for EB-5 investors who invest in TEAs.


WHAT IS CONSIDERED AN INVESTMENT?

Retained earnings are not considered investment

An unsecured promissory note is not an investment of capital. The investment must be real money.

Alternatively, the investor must demonstrate that the note is secured by his property.

Money gifted by a relative is considered investment as long as gift taxes are paid and demonstrate that the gifted money will not be given back after the green card is granted.

Money from a joint account can be used as long as the account is joined with their spouse.


JOB CREATION REQUIREMENTS

Create or preserve at least 10 full-time jobs for U.S. workers within 2 years of the immigrant investor’s admission to the United States as a conditional permanent resident

A qualified US worker is a U.S. Citizen, permanent resident, or other immigrant allowed to work in the United States

Create or preserve either direct or indirect jobs

Direct jobs: identifiable jobs for qualified employees located within commercial enterprise into which the EB-5 investor has directly invested his capital

Indirect Jobs: created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor


REGIONAL CENTER PILOT PROGRAM

• In addition, immigrant investors can invest $500,000 in a qualified and approvedRegional Center. In direct investments and investments through a Regional Center, the investor must show that they created at least 10 direct or indirect jobs within two years of an approved I-526 application.

• Need to have a detailed administrative structure of the regional center which explains how it will promote more investment, assess investor projects, oversee all investment activities, and structure its own investment capital.

• It is particularly attractive to foreign investors by lowering the investment minimum to $500,000 (for a business in a designated regional center or TEA) as opposed to $1,000,000

• Approximately 90-95% of EB-5 applications submitted to USCIS fall into this category.


APPLICATION PROCESS

Application Process

1. File Form I-526, Petition by Alien Entrepreneur

2. Upon approval of Form I-526 petition, either:

File Form I-485, Application to Register Permanent Residence or Adjust Status , with USCIS to adjust status to a conditional permanent resident within the United States, or

File DS-230 or DS-260, Application for Immigrant Visa and Alien Registration, with the U.S. Department of State to obtain an EB-5 visa for admission to the United States.

Upon the approval of the I-485 application or upon entry into the United States with an EB-5 immigrant visa, the EB-5 investor and derivative family members will be granted conditional permanent residence for a two-year period.


REMOVING CONDITIONS

File Form I-829, Petition by Entrepreneur to Remove Conditions, 90 days before the two-year anniversary of the granting of the EB-5 investor’s conditional resident status (Green Card).

List only the conditional resident’s address on Form I-829.

If USCIS approves this petition, the conditions will be removed from the EB-5 applicant’s status and the EB-5 investor and derivative family members will be allowed to permanently live and work in the United States


EVIDENCE

• Evidence of the existence of the enterprise (such as past three years tax returns)

• Evidence of lawful capital:

– Corporate, partnership and/or personal tax returns filed within the past 5 years;

– Foreign business registration records or evidence identifying other sources of capital;

– Other proof of the investor's income during previous years;

– Certified copies of any judgments or evidence of all pending actions involving monetary judgments within the past 15 years;

– Sales contracts if the source of funds is from the sale of a house or business;

– Bank statements, evidence of property transferred from abroad, evidence of purchased assets, stock certificates given for investments, or loan or mortgage agreements.

• Evidence of the required investment

• Evidence of the investor's day-to-day operation of the enterprise through either management or policy (does not apply to investors in a Regional Center Program)

• Title and description of the investor's job duties


EVIDENCE (CONT.)

• If the enterprise is a partnership, evidence proving the investor-partner's management or policy-making activities.

• Evidence showing the creation of at least 10 jobs for U.S. workers or a reasonable business plan to show that it will create 10 jobs for U.S. workers

– If investors have hired employees, I-9s forms and tax records; or

– If investors do not currently hire employees, a business plan demonstrating that 10 U.S. workers will be hired within the next 2 years;

• If investors are in a category requiring a $500,000 investment:

– Evidence demonstrating that 10 jobs have been or will be created in the targeted employment area by a reasonable business plan; and

– Statistical proof that the targeted employment area has high unemployment and a state agency's letter demonstrating that the area is classified as a "high unemployment" area.


EVIDENCE (CONT.)

New Commercial Enterprise

Those who invest in a new commercial enterprise must also provide proof of business organization documents or authorization to do business in a U.S. state or municipality or Articles of Incorporation.

Troubled Business

EB-5 investors must maintain at least 10 jobs for a period of two years starting from the pre-investment level. The investor should submit photocopies of tax records, a comprehensive business plan, and Form I-9 and other documents to show the qualifications of the employees.

Regional Center Program

EB-5 investors need to show that they have invested in a regional center by including a letter from USCIS attached to Form I-526 designating the regional center. Furthermore, EB-5 investors need to show that they have created at least 10 direct or indirect full-time positions or will create 10 direct or indirect jobs for U.S. workers.


TIMELINE

I-526 Approval (Green Card with Conditions)

3-6 Months

Investment “At Risk Period”

2 Years

I-829 Approval (Conditions Removed)

6 Months

Investment Exit Strategy

1-2 Years


COST OF FORMS

Form I-526

$1,500

Form I-924

$6,230

Form I-829

$3,835(including fee for biometric services)


CHANCE OF GETTING A THE EB-5 VISA

Approximately 10,000 visa numbers are allocated annually to EB-5 investors

USCIS reserves 3,000 EB-5 visas for aliens who invest in TEAs and 3,000 for aliens who invest in commercial enterprises affiliated with Regional Centers


EXPEDITE REQUEST

Priority to be given to Regional Center-affiliated individual petitions. USCIS has national expedite criteria for all petitions and applications,

The petitioner must demonstrate that one or more of the expedite criteria have been met to be granted an expedite.

Severe financial loss to company or individual

Extreme emergent situation

Humanitarian situation

Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States

Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)

USCIS error

Compelling interest of USCIS


THANKS!

[email protected]

THE LAB MIAMI, 400 NW 26th Street

1 BISCAYNE TOWER, 2 South Biscayne Blvd

Attorney, Camilo A. Espinosa, Esq.

Attorney, Harry Tapias, Esq.

LOIGICA P.A.

Documents

EB-5 FILE - FR