Any EB-5 investor must either create a new commercial enterprise or purchase an existing business and reorganize it in such a way as to create a new commercial enterprise or expand an existing enterprise to increase the net worth of this enterprise by not less than 40% of its net worth or increase its number of employees by at least 40%.
A commercial enterprise is defined as a for profit activity for the conduct of a lawful business. The legal character of the business may be as a sole proprietor, a partnership, a holding company, a joint venture, a corporation, or a business trust.A holding company’s wholly owned subsidiaries must be engaged in a for profit activity and conducting a lawful business.
This new enterprise must create or preserve 10 full time jobs for qualifying U.S. workers within two years or within a reasonable time. Direct jobs are identified as located within the commercial enterprise which the investor has created. Ã‚ Indirect jobs have been created as a result of the investor’s capital and who is affiliated with a regional center.
One million dollars qualifies an investor to receive permanent residence. If the investment is made in a targeted Regional Center, the investment need only be $500,000. The Regional Centers are high unemployment cities or towns or rural areas, specifically outside the borders of any city or town with a population of 20,000 or more.
A troubled enterprise existing for not less than 2 years and that has incurred net losses during the one to 2 year period prior to the investors purchase that amounts to not less than 20% of the enterprise’s net worth prior to the loss will allow the EB-5 investor to count those jobs he/she preserves as part of the required 10 employees. Qualifying employees include U.S. citizens, permanent residents, conditional residents, asylees, refugees and others authorized to work. The investor may not include him/her self or spouse or children or anyone in nonimmigrant status such as an H-1. Full time employment means a position that requires at least 35 hours per week. If the investment is located in an area designated as an immigrant investor pilot program, then the full time employment may be a position that was created indirectly by the investment associated with the pilot program.
Capital means cash, equipment inventory, other tangible property, indebtedness secured by assets owned by the investor provided that the investor is personally and primarily liable and provided that the assets of the new enterprise are not used to secure any of the indebtedness.
All capital is evaluated at fair market value in U.S. currency.
The EB-5 approved investment obtains the investor and spouse and children unmarried and under 21 permanent residence. It may be obtained before the investor comes to the U.S. The investment may be made in any enterprise the investor chooses, and in any place in the U.S. provided it is legal.
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