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Investor Based Green Card Petition: U.S. Immigration Option EB-5

Posted by attorney Hendrik Pretorius

EB-5 Investor Based Green Card Category If you are in search of a route to a green card and are able to invest a sum of money between $500,000 and $1 million for a period of time into a regionally approved investment center or your own business, as discussed below, you might be eligible for a great investor based green card option. Note that often times this visa option is considered along with the L-1 and E-2 visas and the pros and cons should be considered with an immigration attorney.

There are distinct advantages to going this route as opposed to other non-immigrant visa options such as the L-1 or E-2. One such advantage is that the investment based green card options herein discussed do not requires a person to apply and enter on a non-immigrant visa and then only later apply for and wait for the approval of an immigrant green card visa at a later stage. For some visas, such as the E-2 visa having a green card pending is not even an option (unless filed through a spouse or in certain limited cases) as no dual intent is allowed while on said visa. Instead, with the EB-5 investor based route you will enter the U.S., or if already in the U.S. you will adjust your status directly, and become a conditional green card holder. Of course the E-2 and L-1 visa options also have some distinct advantages such as generally entailing far smaller initial investment amounts into the U.S.

The green card investment based route is referred to as the Employment Based 5th Preference Category (EB-5) and contains two options, one of which is often far more desirable and advantageous then the other, that being investing into a Regional Investment Center, as discussed in option 2 below. Of course, determining which option is best for you will be determined after we discuss your individual situation via a free consultation. Let us briefly consider each option:

  1. $1 Million New Commercial Enterprise Route: This route, which is often not the advisable route is for a person to show that they have already, or are in the process of, investing $1 million into a new commercial enterprise in the U.S. which will substantially benefit the economy by creating 10 new jobs within a 2 year period:

a. The regulations permit three methods of establishing a new commercial enterprise:

i. The creation of an original business;

ii. The purchase of an existing business and simultaneous restructuring or reorganization such that a new commercial organization results; or

iii. The expansion of an existing business through the investment of the required amount, so that a substantial change in the net worth or number of employees results from the investment of capital. The term "substantial change" is defined to mean a 40% increase in either the net worth or number of employees so that the new net worth or number of employees equals at least 140% of the business' pre-expansion net worth or number of employees.

b. Under this option, in certain case, a person may be allowed to qualify if they invest in a “target employment area" and then only be required to invest $500,000. Two ways to qualify as a target employment area are:

i. Rural areas which are areas other than one within a metropolitan statistical area or within the boundary of a city or town with a population of 20,000 or more; and

ii. Areas having an unemployment rate that is at least 150% of the national average.

As this first route has many complications and intricacies the next option, the Regional Investment Center route was created as an alternative option for investors and has been relatively far more successful:

  1. Pilot Program and Regional Investment Center Route: This route, which for a number of reasons is far more streamlined and an easier route to take, requiring only a $500,000 investment in many cases as opposed to $1 million is the option of investing into a Regional Investment Center. There are numerous different qualifying investment centers, which are projects that have been pre-approved by the immigration service, each of which have distinct track-records, investment returns, lengths of time that the invested money must remain within the center and so forth. Note that we can assist in locating the various investment options for you although the ultimate decision is up to the individual investors due diligence.

a. One of the major advantages of this route is that the investment being made is going to a pre-approved investment center so a lot of burden is taken off of the investor as you are not having to convince the immigration service that your business venture is realistic, has merit, and will be able to not only succeed but grow rapidly enough to employ at a minimum ten new employees within the first 2 years. As you can imagine this route is far less tedious although still does require careful preparation and attention.

Note that with either route you will initially be issued a Conditional Green Card valid for two years which will then require an application to remove the “conditions" and be left with a regular green card. Note that the conditional green card has all the same benefits as the regular green card but merely requires an additional step in terms of removing the conditions. Again, investing into a Regional Investment Center makes the removal of these conditions simpler as opposed to having to evidence to the immigration service after two years that your new commercial enterprise is operational, has grown tremendously, and has satisfied requirements such as employing 10 persons. The Regional Investment Centers for example are held to similar but more easily satisfied requirements in terms of showing the creation of at least 10 jobs as they can evidence through economic matrixes that the investments they have put to use have indirectly created such jobs.

Another benefit of the Regional Investment Center Route is that one can enter the U.S. on the conditional green card and then be free to work wherever one desires, or open your own venture while participation in the Regional Investment Center as it requires a minimal time commitment in most cases. There are some issues to discuss regarding this aspect as the investment cannot be completely passive but in general this option provides far more flexibility to the applicant.

I hope this basic background information was informative and I would be very pleased to speak to anyone directly to discuss the entire process and provide more detail over each requirement and how we can satisfy them in your specific situation. Please visit our website at www.pretoriuslaw.com or contact me directly at hp@pretoriuslaw.com. Pretorius Law Firm is equipped to assist you in understanding this entire process, seeing if it is a suitable option for you, and then assisting throughout the preparation of the visa petition including locating suitable regional investment centers.

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