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The EB-5 Investment Green Card

 

The immigrant investment green card establishes permanent residency with the EB-5 investor program. Foreigners making an investment in a United States business can establish permanent residency leading to citizenship in the United States. This includes the individuals spouse, and any children less than 21 years of age. The USCIS or United States Citizenship and Immigration Services operate the EB-5 program. The United States Congress established the program in 1990 to help increase investments in the United States economy.

 

The Investment Green Card Requirements

 

An at-risk capital must be made by the foreign investor with a capital investment in a United States for-profit business to meet the investor requirements of the EB-5 investment green card visas. Depending on the project, the investment must be $500,000 or $1 million. The investment for a TEA, or targeted employment area is $500,000, and any other investments require a minimum of $1 million. The EB-5 investments must result in creating ten fulltime jobs in the United States for a minimum of two years. This process is extremely complicated, and the services of an immigration attorney are highly recommended.

 

The Investment Green Card Numbers

 

A total of 10,000 investment green card EB-5 visas are reserved by the USCIS every fiscal year, and this number has never been reached. In 2011, the number of program participants interested in an investment green card drastically increased, and over 3,000 investors applied for the program. During the 2011 fiscal year, approximately 3,500 EB-5 investment green card visas were granted. This was an increase of eighty percent from 2010. His growth was attributed to an increase in confidence levels due to the efficiency of the application process, the transparency of the USCIS, and an increase in the number of United States regional centers. The total number of EB-5 applicants between the fiscal years of 2005 through 2012 were 12,410, with the least number of applicants at 332 in 2005. These figures were based on the data of receipts for I-526 by the USCIS.

 

The EB-5 Investment Green Card Regional Centers

 

There are two main options for investment for an individual interested in an investment green card. The first is to invest directly through the regional center. The second is an investment project located by the investor, and the individual must have a direct role in management in completion of the project. For individuals interested in more control of their investment, direct investments are best. Both options are effective, but the complicated nature of the investment green card requirements do require legal assistance. Those individuals with more interest in the EB-5 immigration goals as opposed to obtaining the highest return for their investment are better off investing in the Regional Center. The USCIS provide the designation to the regional centers for the EB-5 investment projects. Approximately ninety percent of all investments made by EB-5 applicants are made through a regional center.

 

Requirements for Job Creation

 

The Regional Centers handle the requirements for job creation. USCIS requires a minimum of ten full-time jobs to be created by the EB-5 investment for qualified United States workers. The creation and preservation of all these jobs must happen within two years of the entrance into the United States, and conditional permanent residency of the investor. The definition of an EB-5 project job is indirect, direct, or induced. In the context of a direct investment, the applicant for the investment green card must prove their capital resulted in the creation of direct jobs. The employees must work directly with the business for which the EB-5 investment was made. In the context of the regional center, indirect, direct and induced jobs can be counted by the individual towards the requirement for job creation.

 

The Application Process Review for An Investment Green Card

 

There are three basic steps an EB-5 visa applicant must follow to obtain permanent residency in the United States. There must be ten fulltime, direct jobs created by the individual business per direct investment by the applicant. Or, in a regional center designated by the USCIS there must be ten indirect, direct, or indirect jobs created by the investor. The I-526 must be approved before the individual can apply for permanent residency with a DS-260, or Application for Adjustment of Status, or an Application for Immigrant Visa. This petition confers the investment green card to the investor, and all eligible dependents. These forms and supporting evidence are extremely complicated, must be filled out accurately, and the assistance of an immigration attorney is recommended. The I-829 application must be submitted at the end of the two-year period to prove all requirements have been met for the EB-5 visa. If you are seeking an immigration attorney to discuss the process of EB-5, please feel free to contact Law Offices of Andrew P. Johnson to set up a free consultation by phone (212-693-3355) or email at info@lawapj.com.

E2 visa is different because it does not lead to a green card. It is a temporary visa that can be renewed on a two or five year basis, and the requirements for an E2 visa is about $100,000 investment into United States where you have to set up a business and then to see the money spent in the United States. USCIS is getting much stricter with these visas, and is also requiring usually a minimum of two or three people on payroll along with making sure the hundred thousand dollars has been spent on the US business in United States.

What is the new countries added to TPS (temporary protective status)?

The TPS designations for the three countries are effective Nov. 21, 2014 and will be in effect for 18 months. The designations mean that eligible nationals of Liberia, Guinea, and Sierra Leone (and people without nationality who last habitually resided in one of those three countries) will not be removed from the United States and are authorized to work and obtain an Employment Authorization Document (EAD). The 180-day TPS registration period begins Nov. 21, 2014 and runs through May 20, 2015.

If an individual cannot prove how they obtained their $500,000, they can ask a wealthy friend to give them the $500,000. If the wealthy friend gifts the $500,000 for the EB-5 applicant, the wealthy friend will have to show how his $500,000 gift was legally obtained.

So hypothetically, the wealthy friend has a salary of $200,000 a year and deposited the money into his personal account. Once $500,000 from his salary is deposited into his personal bank account that should be enough proof of the legal source of funding. However if during that time money was taken out of that personal account and different money from different sources was deposited into the applicant’s personal account the legal source of funding has not been approved.

So even if $500,000 of legally earned money is deposited into the wealthy friend’s bank account that may not be enough to prove legal source of funding, if at any time money was taken out of that account and money was re-deposited from each separate source.

As you can see, to prove the EB-5 source of funding to the US government imposes is a higher burden of proof.

But as with every case we would look at the individual’s total financial situation and find the clearest path to prove the legal source of funding for the EB – 5 program.

One option is to file the EB – 5 relatively soon, and simply come to the United States on a B – 2 visa and come and go whenever you would like. You and your family will pick up EB-5 visa at the US embassy. If the children want to stay in the US while waiting for the EB-5, they can apply to private school and you can get a B – 2 extension, which is commonly granted when applied for the first time. (That would allow you and your children and your spouse 12 months stay in United States.

We prefer this option for the reason that there will never be an issue with the embassy as you will always be following the requirements of a B – 2 visa (i.e. your children never took any public funds, you followed your B – 2 visa within the requirements of US CIS regulation, etc.)

You may have negative stories about people getting their permanent residency card at the embassy. However, once an EB – 5 has been approved by the USCIS and been approved at the National Visa Center, there should be no issue at the embassy as every aspect of the case has been approved prior except for security evaluations.

And that will not be an issue in your case since you have already have gone through the security evaluations because you and your family were previously issued B – 2 visas.

What is required of EB-5 investor?

He or she must show the last five years of tax returns, proof that they have any ownership of businesses, a police certificate, last five years of bank statements, document showing any criminal convictions, and identification documents, and most importantly he or she must show how the money was legally earned.

What is source of funding, or origin of fund?

This is the most difficult part of the EB – 5 process, simply because $500,000 invested must originate from a legal source. Most businessmen obtain money through legal source but then transferred it into multiple investments, which needs to be tracked in order to use that money for the EB 5 program.

For example, if someone sold some real estate in the country three years ago and made $700,000, that $700,000 would have probably been allocated into another business ventures and mixed with other from non-traceable sources. At least $500,000 has to be retraced and brought back into a personal bank account in order for the person to claim they have a legal source of funding.

In order to prove the legal source of funding, US CIS not only needs all the real estate sales documents, but also records of all the wire transfers to the various accounts and proof of funds being sent back to the individual’s personal account.

What is required of EB-5 investor?

He or she must show the last five years of tax returns, proof that they have any ownership of businesses, a police certificate, last five years of bank statements, document showing any criminal convictions, and identification documents, and most importantly he or she must show how the money was legally earned.

What is source of funding, or origin of fund?

This is the most difficult part of the EB – 5 process, simply because $500,000 invested must originate from a legal source. Most businessmen obtain money through legal source but then transferred it into multiple investments, which needs to be tracked in order to use that money for the EB 5 program.

For example, if someone sold some real estate in the country three years ago and made $700,000, that $700,000 would have probably been allocated into another business ventures and mixed with other from non-traceable sources. At least $500,000 has to be retraced and brought back into a personal bank account in order for the person to claim they have a legal source of funding.

In order to prove the legal source of funding, US CIS not only needs all the real estate sales documents, but also records of all the wire transfers to the various accounts and proof of funds being sent back to the individual’s personal account.

Below please see an example of how to prove the source of funding.

If an individual cannot prove how they obtained their $500,000, they can ask a wealthy friend to give them the $500,000. If the wealthy friend gifts the $500,000 for the EB-5 applicant, the wealthy friend will have to show how his $500,000 gift was legally obtained.

So hypothetically, the wealthy friend has a salary of $200,000 a year and deposited the money into his personal account. Once $500,000 from his salary is deposited into his personal bank account that should be enough proof of the legal source of funding. However if during that time money was taken out of that personal account and different money from different sources was deposited into the applicant’s personal account the legal source of funding has not been approved.

So even if $500,000 of legally earned money is deposited into the wealthy friend’s bank account that may not be enough to prove legal source of funding, if at any time money was taken out of that account and money was re-deposited from each separate source.

As you can see, to prove the EB-5 source of funding to the US government imposes is a higher burden of proof.

But as with every case we would look at the individual’s total financial situation and find the clearest path to prove the legal source of funding for the EB – 5 program.

What is the difference between E2 Visa and then EB – 5 green card?

E2 visa is different because it does not lead to a green card. It is a temporary visa that can be renewed on a two or five year basis, and the requirements for an E2 visa is about $100,000 investment into United States where you have to set up a business and then to see the money spent in the United States. USCIS is getting much stricter with these visas, and is also requiring usually a minimum of two or three people on payroll along with making sure the hundred thousand dollars has been spent on the US business in United States.

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