Investment

Investment

An important aspect of the investment to be kept in mind, is that it must be either in a new business (defined by the USCIS as a commercial enterprise established after November 29, 19901) or in one which has been purchased and restructured in a way which has given rise to a new commercial enterprise; or the investment will spur either a 40% increase in net worth or employees.

There are two USCIS-mandated checkpoints a foreign investor must complete to obtain their permanent green card through the EB-5 program. In the first stage, the investor files an I-526 form, which explains how the investment will create the required jobs. This form is evaluated by the USCIS on a number of conditions:

  • New commercial enterprise status of the business.
  • Investment capital: funds must be at risk and be invested or in the process of being invested at the time of application review.
  • Source of capital: funds must have been obtained through legal means.
  • Managerial role: the investor must be in some way involved in the management of the enterprise for investment (most often as a limited partner).
  • Employment creation.
Upon approval of the I-526 (usually within eight months of submission), the investor (as well as the investor’s spouse and children under the age of 21 at the time of investment) will receive a conditional visa permitting two years’ residency in the United States. After this period, the investor must submit an I- 829 form to remove the conditions on his or her green card and allow for indefinite residency. This form is filed sometime in the 90 days preceding the second anniversary of I-526 approval and must demonstrate:
  • Investment of the full amount required.
  • Investment has been sustained in the commercial entity for the full two-year period.
  • Required jobs (10 new full time) have been created.
  • Approval rates for both I-526 and I-829 applications have increased since the program’s inception, primarily because Regional Centers have become better at locating those projects most likely to fulfill all the investment requirements and because immigration attorneys and investors have gained more knowledge about producing a viable application.
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