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EB-5 Immigration

To stimulate the economy and create new jobs, Congress in 1992 established an EB-5 investor visa. Investments of one million dollars are normally required but for rural areas or where there is high unemployment, $500,000 is a sufficient investment. This program started slowly but in the past two years foreign investors from China and from Europe and South America, where investors are troubled by uncertainty in their economies, now envisage investments in the U.S. The EB-5 visa program provides provisional residence and then if the business succeeds, permanent residence to investors. Â

EB-5 visas are for foreign investors who start a new enterprise here or if they purchase an existing business it would be necessary to restructure the business to essentially make it a new business. If the investor does not wish to restructure the purchased business, then the investment must increase the net worth of the company by 40% of its net worth or increase its employment rolls by 40%.


The business must be for profit and made by an individual, a partnership, a holding company, a joint venture, a corporation or a business trust. A personal residence, for example, would not be considered a commercial enterprise.


The enterprise bought or created requires hiring 10 new job holders who are U.S. citizens, permanent residents or conditional residents such as spouses of U.S. citizens, waiting for their permanent residence. Non- immigrants such as specialty workers (H1-B) or intra company transferees (L-1) are not included. These new employees must work for the enterprise or be employed by an enterprise of a regional center in which foreign investors have placed their funds. If a prospective business entity has had substantial business reverses, then the investor’s job creation program may be satisfied by preserving 10 jobs to fulfill the job creation category. The troubled enterprise has had to be in existence for 2 years and has had to have losses over the past one or two years prior to the investor’s application of at least 20% of the company’s net worth. Full time work means no less than a 35 hour week.


Capital is cash or properly evaluated inventory or assets owned by the investor above and beyond any debts of the investor. The investment must be at risk, nanely that the investor will be personally liable and that he/she has not used the enterprise’s assets to secure the purchase of the business. The investment must be at least one million normally or it may be $500,000 if the investment is in a rural area or an area with high unemployment. A rural area is defined as outside a metropolitan statistical area and a high unemployment area is defined as an unemployment rate of at least 150% higher than the national average.

The EB-5 program’s application numbers have climbed so rapidly over the past 2 years that it is expected within 2 more years to reach the 10,000 annual limit. If this happens, those applicants who apply late would not be granted the visa once the calendar year’s limit has been reached. For the year 2012 the number of successful applicants was 7800. The investor need not be working for the business if he/she does not wish to be involved.

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