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The EB-5 visa is an immigrant visa that can allow the citizens of foreign nations to obtain admittance to the United States and provides a pathway to citizenship if they invest a substantial amount of capital into a new U.S. commercial enterprise. For these reasons this visa is sometimes called a foreign investor’s visa or an entrepreneurial visa. However, those who wish to qualify for this visa type must meet certain characteristics and requirements and the investment must also meet certain standards. The experienced immigration attorneys of Colombo & Hurd can explain the process to prospective immigrant investors and handle all aspects of your immigration filings.

What Must an Immigrant Investor do to Qualify for an EB-5 Visa?

In order to qualify for the an EB-5 visa the prospective immigrant investor must make a substantial investment into a new commercial enterprise. A new commercial enterprise is defined as a business, corporation, company, partnership, holding company, joint venture or other type of commercial enterprise that is established after November 1990. Furthermore, a commercial business that was established before November 1990 can also be considered a new commercial enterprise if:

  • The business is purchased and reorganized such that a new commercial enterprise is created; or
  • The previously existing business is expanded through sufficient capital investment such that the company’s net worth is increased by 40 percent or the number of employees is increased by at least 40 percent.

However, it is important to note that any noncommercial activity undertaken by the investor will not count towards the EB-5 visa. For instance, purchasing a personal residence will not constitute an qualifying investment into a commercial enterprise.

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The Capital Investment Must Meet Certain Levels

Aside from making an investment into a qualified commercial venture, the investment must exceed certain levels. Capital for the purposes of an immigrant investors capital investment can include cash along with assets like inventory, equipment, and other property. Capital does not income assets that were acquired illegally and all valuations should be at fair-market value in the U.S. dollar. However the minimum amount for a qualified investment is dependent upon a number of factors.

The generalize requirement for a minimum qualifying investment in the United States for the EB-5 visa is $1 million. However in certain targeted areas the investment can be substantially less. Typical areas where the minimum qualifying investment is reduced includes any rural area outside of a major census-designated metropolitan area and targeted employment areas where the level of unemployment is 150 percent of the average national rate.

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The Investor Immigrant Must Create a Certain Number of Jobs

Along with the previously discussed requirements, the immigrant investor must also create or, in the case of a troubled business, preserve a certain number of full-time jobs for workers in the United States. In general, the investment in a commercial venture must create or sustain a minimum of ten full-time jobs within two years of the investment. However under certain circumstances the time period for the creation of these jobs can be extended to a “reasonable time” after the standard two-year period.

Furthermore, under certain circumstances, the requirement of creating at least ten full-time jobs has more nuance to it than it initially appears.  First, certain jobs subject to a job sharing agreement may be counted as full-time employment provided that the employee meets the weekly hourly requirements. However, while job-sharing agreements are allowed, part-time positions and seasonal positions may not be combined to create a full-time position. Furthermore, in some circumstances indirect jobs can also be counted. Indirect jobs include those jobs created as a result of the capital investment, but they were created collaterally. Indirect jobs may be counted towards the requirement to create or preserve at least ten full-time jobs only if the commercial enterprise is affiliated with a regional center. An experienced attorney can assist you with these and other important questions and concerns regarding an investor’s EB-5 visa.

Rely on our Immigration Experience

The experienced immigration attorneys of Colombo & Hurd take a strategic and meticulous approach to all immigration concerns. We can guide immigrant investors through the EB-5 visa process while addressing any collateral issues or concerns. To schedule a confidential legal consultation with an experienced immigration attorney call us at 800-659-7142 or contact us online.

Colombo Hurd, PL

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