EB-5 Immigrant Investor Program

EB-5 Immigrant Investor Program: The Fundamentals

The Lawyers at Teplen Law Group have demonstrated overwhelming success in assisting foreign nationals, from many different countries, in attaining “Green-Card” permanent residency for themselves and their families through the EB-5 investment program. The EB-5 investment program has the capacity to grant investors the ability to live and work permanently in the US, with the option of attaining eventual citizenship.

The EB- 5 program is a basis for a permanent US visa (“green card”) for immigrant investors and was created by the Immigration Act of 1990. It provides a method of obtaining a permanent  US stay for foreign nationals who are capable of investing at least $500,000 USD (or $1,000, 000 USD in certain areas), in the US and which directly or indirectly results in the creation of a minimum of ten new jobs. USCIS requirements also dictate that the investment be vulnerable to some degree of risk. The legal team at Teplen Law Group has proven success in capacity as both legal and financial advisors, working to assist the foreign investor in securing capitalization for the US investment vehicle.

Regional Center Investment

Of the annual 10,000 EB-5 visas available to foreign investors, 3,000 are set side specifically for those who engage third-Party business entities called “Regional Centers.” Investors who do not invest in a Regional Center therefore only have access to 7,000 EB-5 visas annually, whereas investors in Regional Centers have access to the full 10,000. Regional Centers were created in 1993 with the purpose of facilitating and attracting foreign investment to stimulate the US economy, increase export sales and foment job creation projects.  These economic units, either public or private, have been pre-approved by the US Department of Homeland Security and investments in Regional Centers are generally considered to have a much higher likelihood of EB-5 approval.  Investing in a Regional Center offers many other advantages as well. Many are located in TEA’s (requiring the smaller investment of $500,000), the EB-5 investor is not required to directly supervise the daily operation of the business entity, and the job creation may be indirect.  The foreign investor may also live anywhere in the US they wish to, regardless of the state where the initial investment is made or the locale of the TEA.

A “Regional Center” must be approved by the USCIS and only after the submission of a business plan and a report confirming the projects’ anticipated job creation capabilities. 

If the investor wishes to invest in an area designated as a “Targeted Unemployment Area,” (TEA) then the capital investment may be as little as $500,000. TEA refers to an area that has unemployment rate 150% the national average or falls outside of Metropolitan town or city limits and or is deemed “rural.” Otherwise the minimum investment amount is $1,000,000. A TEA is considered a great opportunity for the foreign national, participating in the EB-5 investor program, not least because the ease and safety of making the investment. In addition, since TEA investment does not necessitate the supervision of daily business operations, it permits the investor and their family to live anywhere in the US they choose to.

A careful examination of the business plan is essential to a successful  EB-5 application as  the Federal government makes no guarantee of permanent residency for EB-5 investors.

In the current economic climate, as conventional lending sources have become more elusive, alternative  sources of financing and foreign investment in particular, has become increasingly more attractive. Certain unscrupulous business enterprises, in order to secure overseas financing through the EB-5 program, have made false claims, that the program itself,  is officially sanctioned by USCIS. Some Regional Centers have also been found to be particularly egregious of perpetuating this misconception.

It is especially important that every foreign national participant in the EB-5 investor program,  satisfy  the requirements of USCIS by the end of their conditional 2-year residency.  Failure to satisfy the job creation segment of the program, will jeopardize an application for legal permanent residency and the  opportunity for eventual US citizenship.

As with any venture, it is imperative that an investor perform due diligence, before committing to any financial expenditure.   However, retaining a competent and experienced law firm to perform this task, diminishes the risk exposure to the capital investment and allows the foreign to better shield it, against potentially intangible, business enterprises.

The investor also has the option of investing in a “troubled entity” defined by USCIS as one that had lost 20% of its net equity in the 24months prior to filing the application.  This may be advantageous to the investor, as it does not require the creation of new full-time positions. Instead, it merely requires the maintenance of the employees, already on payroll, for the duration of the 2-year conditional residency period.

EB-5: The Road to Residency

Assuming that the EB-5 investor application is approved, the applicant will, at that point, receive a two-year conditional residency (conditional “Green-Card”). USCIS requires that an application to convert to unconditional, legal permanent resident status, to be filed within 90 days of the visas expiration.  At such time, USCIS shall require the submission of additional documentation.

This documentation may comprise as little as:

  • Bank statements
  • Business invoices and receipts
  • Contracts
  • Business licenses
  • Tax audited reviews or financial statements
  • Complete copies of federal or state income tax returns or quarterly tax statements

One of the many benefits of the EB-5 visa is the ability to confer permanent  resident status on all accompanying dependents. This also includes your spouse and unmarried children, less than 21 years, granting them the benefits of living, attending school or working in the US, in addition to an eventual path to US citizenship.

Absences from the US totaling more than 180 days each calendar year may render the visa holder ineligible for full Green Card status.  However, a qualified attorney, with a broad knowledge of the EB-5 process is best informed to advise the proposed applicant if any intended travel plans may result in unfavorable repercussions, which could affect conferring full permanent resident status.

The Necessity of an Attorney for the EB-5 Application

An experienced and capable attorney is able to effectively prepare and compile all the necessary documentation that will ensure a smooth, fluid application process and a prompt issuance of the EB-5 visa.

The application process for the EB-5 generates a litany of documents in order to satisfy the requirements of USCIS.  This includes but is not limited to:

  • Justification of the lawful source and path of the funds remitted for investment purposes.  These are held in escrow unit the application is approved
  • Personal and business tax returns for the previous five years
  • Any criminal complaints for the fifteen years prior to application.
  •  Evidence that the applicant has an individual net worth in excess of $1,000,00

The application may also require the input of other professional services including accounting banking, real estate, medical etc. Retaining a law firm who can attest to their bonafides of other professionals can coordinate all these services, the most effectively

Applicants should expect fees to be substantially higher for this type of visa and also expect a processing time of approximately 180 days. This allows for both preparation of the application and a review by USCIS, of all documentation.  All filing fees are non-refundable and an error in either the application or a lack of necessary documentation could result in a significant delay in adjudication time.

A competent Law firm can also advise as to the risk of the capital investment and if required provide alternate investment options which will best minimize risk and be more likely to increase the likelihood that the applicant and dependents will receive a Green Card.

An Investment in Your Future

Teplen Law Group is strategically placed to advise potential applicants, upon unique opportunities that minimize risk exposure and in many cases, increase the likelihood of a significant return on the principal.

Employing the services of an attorney is essential to ensure the smooth navigation of the complexities involved in the EB-5  investor program.

Although the EB-5 visa appears to offer the savvy investor a wide range of possibilities, in terms of capital growth and the potential to emigrate to the US, the necessity of employing an attorney cannot be overstated.

For more information or to inquire about available investments options, please contact us at 1-212-401-4040.  One of our team of investment specialists stands ready to assist you, or you may request a consultation, with the firm’s founder, Philip H. Teplen.

 

To talk to a lawyer about any personal or business immigration concern, call our offices in New York City at 212-401-4040 or Toll-Free in the U.S. at 800-244-5266. You can also contact us online.

 

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