Immigrant Investors: The EB-5 Program

The primary focus of the EB-5 program is the creation of jobs in the US, but it also represents an appealing opportunity for many foreign investors and their family members who wish to live, work, and/ or study in the US. Put simply, the EB-5 Immigrant Investor Program can offer a “win-win” situation where the US economy benefits through job creation from capital investment by immigrant investors, and the immigrant investor and certain members of the investor’s family benefit by receiving conditional, and ultimately permanent, resident status in the US.

Upon approval (if already in the US) or entry into the US with an EB-5 immigrant visa, the investor, spouse, and unmarried children under the age of 21 are given conditional green cards valid for two years. Prior to the two-year anniversary of the investor’s conditional green card, the investor can then apply for and receive a permanent green card by showing compliance with the requirements of the EB-5 program.

The EB-5 program requires the following:

  1. Investment in certain types[1] of commercial enterprise; and
  2. Creation[2] of at least 10 full-time[3] qualifying[4] US jobs.

Invested capital may take the form of cash, equipment, inventory, tangible property, cash equivalents, or indebtedness secured by assets[5] owned by the investor. Investment capital cannot be borrowed, and will be valued at fair-market value in US dollars. The minimum required investment amount in a Targeted Employment Area (a high unemployment or rural area)[6] is $500,000; outside of those specified areas the minimum amount is $1,000,000.

Jobs in the program must be created within two years (or within a reasonable time period under certain circumstances) of the investor’s admission as a conditional permanent resident to the US. Calculation of the number of jobs created will be direct, consisting of actual and identifiable jobs in the business that is the object of the investment, or if the investment is through a Regional Center, indirect jobs created collaterally or as a result of the investment may be used. Regional Centers are simply any economic entity, whether public or private, that promote job creation, domestic investment, productivity, or economic growth and have been approved by US Citizenship and Immigration Services (“USCIS”).

Since its inception in 1990, the EB-5 Immigrant Investor Program has provided great opportunities for US businesses needing to raise capital, and foreign investors interested in the US and willing to provide that capital.

[1] New commercial (for profit) enterprises, defined as those i) established after November 29, 1990; or ii) established on or before November 29, 1990 and either a) purchased and the existing business is reorganized so that a new commercial enterprise results, or b) expanded through the investment resulting in a 40% increase in net worth or the number of employees.

[2] Preservation of jobs will apply if the investment is in a troubled business that has been in existence for at least 2 years and incurred a net loss (at least 20% of the business’ net worth prior to loss) during the 12 or 24 month period before the priority date on the investor’s Form I-526.

[3] Full-time is defined as at least 35 hours/ week, with benefits.

[4] Benefiting a qualifying US worker, meaning US citizen, permanent resident, or other immigrant authorized to work in the US. Does not include independent contractors, the EB-5 investor, or the EB-5 investor’s family members.

[5] The investor must be personally and primarily liable, and the assets of the business that is the object of the investment must not be used to secure any of the indebtedness.

[6] High unemployment defined as at least 150 percent of the national average rate; rural area meaning outside of a metropolitan statistical area designated by the Office of Management and Budget or outside the boundary of any city/ town with a population of 20,000 or more.