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EB-5 Immigration via Investment

Posted by attorney Anthony Ravani

Although the investment requirement to become a Legal Permanent Resident (LPR) of USA is $1,000,000, there is a provision that, if invested through utilizing that provision, the investment requirement is allowed to be half ($500,000) of the required investment of $1,000,000. This provision is called investment into a Regional Center. The Regional Center program was created by the Congress as a temporary program. Last time, it was renewed for three years in October 2009. If Congress does not extend it beyong these three years it will end at the end of October 2012.

This program allows the required investment to be in half ($500,000) if it is invested into a Regional Center. A Regional Center is usually a Limited Partnership with project(s) that have been approved by Department of Homeland Security (DHS) to be in areas that are more economically depressed than the rest of that region. When a Foreign National (FN) invests in a Regional Center he/she would be a Limited Partner. That means, he/she would not have any rights to interfere into the decision making of the Regional Center, i.e. he/she would be a passive investor. Currently, there are about 120 Regional Centers in the USA. It is highly advisable for an investor to hire his/her own lawyer to investigate and select the most suitable Regional Center for that investor. Although Regional Centers make a FN believe that they have their own immigration lawyers, a FN should still hire his/her own lawyer. The Regional Center lawyers look after the interests of the Regional Center and would not negotiate the best terms for a FN. A FN’s personal immigration lawyer can find the most suitable Regional Center, negotiate best terms, review documents and contracts, manage the entire process, and provide advice throughout the process to the investor. Some Regional Centers allow the FN to hire his/her own immigration lawyer.

Investment of the full $1,000,000 is under the control of the investor and he/she can make, direct, and control the investment in any area that a FN decides to invest. An investor needs to decide whether “control" is more important to him/her or the amount of investment. If “control" is more important, then the investor would probably invest the required $1,000,000. However, if the amount is more important, then the Regional Center investment may be more favorable. In addition, each kind of investment has to create 10 jobs related to that particular FN's investment. Investment in a Regional Center makes it much easir for the FN since he/she does not have to track or worry about the job creation, the Regional Center shall do that.

Both kinds of investments allow a FN, his/her spouse, and their children of under 21 and unmarried to immigrate to the USA and become an LPR (obtain Green Card). But a FN must understand that either kind of investment must have the “risk" element. Some FNs think buying a single family home, placing their money in a certificate of deposit (CD), or other low risk financial instruments would allow them to utilize the investment for a Green Card. DHS’ definition of investment for the purpose of obtaining Green Card is that the investment must be at risk. Evidence and documentation must be submitted to DHS that the investment is at risk. A CD or purchase of a single family home is not an acceptable investment with the kind of risk that DHS has defined for this process.

I strongly suggest that a FN investor hire his/her own lawyer for advice, managing the entire process, reviewing contracts, negotiating terms and watching for the investor’s best interest. This lawyer shall have a business background while practicing immigration law. Interview the lawyer and ask what his undergraduate degree was. It is preferred that the undergraduate degree had an emphasis in business, finance, or economics. Make sure the lawyer has experience in business or he/she has practiced contract, corporate, or business/financial transactions.

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