U.S. Immigration THrough Investment

Approximately 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. Statistics on the EB-5 program show, however, that actual usage of this preference category has never come near the annual allotment of 10,000 visas for the program.

Foreign investors seeking permanent residence in the United States fall under the EB-5 immigrant visa category. Generally, investors must demonstrate that a "qualified investment" is being made in a new commercial enterprise. They must also show that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise.

In general, eligible individuals include those:

Who establish a new commercial enterprise by:

• creating an original business;
• purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or
• expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and

• at least $1,000,000 (or more in high employment areas), or
• at least $500,000 where the investment is being made in a "targeted employment area," which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area as designated by OMB; and

• create full-time employment for not fewer than 10qualified individuals; or
• maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.

* Keep in mind that the investor must also establish that the required amount of capital has been placed at risk for the purpose of generating a return on that capital. A mere intent to invest, or prospective investment arrangements entailing no present commitment will not suffice to establish that the petitioner is actively in the process of investing.

Procedure

INS Form I-526, Immigrant Petition by Alien Entrepreneur, is the form used to apply for investment-based immigrant status. The Form I-526 must be filed with supporting documentation which clearly demonstrates that the individual's investment meets all requirements, such as:

• establishing a new commercial enterprise,
• investing the requisite capital amount,
• proving the investment comes from a lawful source of funds,
• creating the requisite number of jobs,
• demonstrating that the investor is actively participating in the business; and, where applicable,
• creating employment within a targeted employment area.

You can find the Form I-526 on our web site at by clicking on the Immigration Forms link.

Conditional Permanent Residence

Once the Form I-526 is approved, immigrant investors may obtain status as a conditional resident by:

• Filing INS Form I-485, Application to Register Permanent Residence or Adjust Status, if residing within the United States; or,
• Applying for an immigrant visa at a U.S. Consulate abroad, if residing outside the United States.

Removing Conditions on Residence

90 days before the second anniversary of your admission to the United States as a conditional resident, you must file INS Form I-829,Petition by Entrepreneur to Remove Conditions.