EB 5 Investor Visa USA

Purpose of EB 5 Investor Visa USA

The Immigration and Nationality Act (INA) of the United States makes the Employment-based fifth preference visa – EB 5 Investor Visa USA available to qualified non-US citizens or immigrants. The purpose of creating EB 5 visas was to benefit the US economy through foreign investments and job creation. The INA authorizes approximately 10,000 visas every year to immigrant investors (and their spouse along with their children aged less than 21 years). Out of these, 3000 visas are reserved for immigrants who have a clear intention of investing in a new commercial/business enterprise with a USCIS-designated regional center. In 2019, Department of Homeland Security increased EB-5 visa allocation to 11,000 visas. This number includes eligible family members of such immigrants. The INA decided a minimum cap of US $1,000,000 per immigrant investor. Those choosing to invest in targeted employment areas (TEAs) have a minimum investment cap of US $500,000 per investor. However, on November 21st 2019, the Department of Homeland Security increased the minimum investment amount to $1,800,000 for non-Targeted Employment Areas and to $900,000 for Targeted Employment Areas.

Background of EB 5 Visa

EB-5 Category Creation

The EB-5 immigrant visa category was created in the year 1990 so immigrants would get Legal Permanent Resident or LPR status. This was created initially for a 2-year conditional period for immigrants who established, or invested (or were actively in the process of investing) in, and engaged in the management of job creation or preservation of jobs for profit enterprises. Immigrant investors were allowed to invest in any type of business as long as they invested the minimum capital amount and directly created at least 10 jobs for US workers.

Creation of the Regional Center Program

The Regional Center Program, also known as Immigrant Investor Pilot Program was created in 1992 for the EB-5 category. The program aimed at determining the feasibility of bringing investments in designated regional centers. This is different from the usual investor program because it mandates the use of reasonable statistical or economic methodologies for the purpose of showing employment creation.

A. Investment of Capital

The purpose of creating immigrant investor category was to benefit the US economy through an immigrant’s contribution of capital. This benefit is greatest when at least 10 full-time employment opportunities are created (for US workers). The terms capital and investment are defined with this economic benefit in mind.

1. Capital

The word capital mainly stands for a certain kind of financial value to a business. Capital includes cash, inventory, equipment, any other tangible property, cash equivalents, and indebtedness secured by assets owned by the immigrant investor. However, the condition is that the immigrant investor is personally and primarily liable and the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.

For the purpose of investment, the immigrant investor needs proof of the legal ownership of the capital invested and that the capital must have obtained legally. Any assets acquired directly or indirectly by illegal means, such as criminal activity, are not considered capital.

Using Loan Proceeds as Capital

Loan proceeds may qualify as investment capital if the requirements placed on indebtedness are satisfied.

When an immigrant investor is using loan proceeds, the following conditions apply:

  • The immigrant investor must be personally and primarily liable for the debt;
  • The indebtedness must be secured by assets owned by the immigrant investor; and
  • The assets of the new commercial enterprise must not be used to secure any of the indebtedness.

It is a vital requirement that the immigrant investor has the primary responsibility for repaying the loan debt which was used towards the investment.

The immigrant investor needs to demonstrate that his or her own collateral secures the debt, and that the value of the collateral is sufficient to secure the amount of loan/debt used for fulfilling the minimum investment amount. A loan obtained over the immigrant investor’s assets is considered capital only up to the fair market value of the immigrant investor’s pledged assets.

2. Investment

The immigrant investor must invest his or her own capital. The investor is required to submit proof about the path of investment, how it was invested or is still in the process of being invested, with the immigrant investor’s own funds.

Investment stands for contribution of capital and it does not include a loan from the immigrant investor to the new commercial enterprise. However, when the capital is contributed in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the immigrant investor and the new commercial enterprise, it is not considered as a capital investment.

To sum up, a capital investment is one where the immigrant investor has put his/her money at risk. A mere intention of investment is not capital.

Purchasing a share of a business from an existing shareholder also does not qualify because the payment will go to the former shareholder and not to the new commercial enterprise.

Guaranteed Returns

In exchange of capital investment, if the immigrant investor is to get a guaranteed return, or a rate of return on all or a portion of his or her capital, then this is not considered a risk.Capital at risk means a risk of loss and a chance of profit.

Additionally, if the investor is promised to receive the right to eventual ownership or use of a particular asset in lieu of the investor’s capital contribution for the new commercial enterprise, the expected present value of the guaranteed ownership or use of such asset will count against the total amount of the investor’s capital contribution to calculate the exact amount of capital investment. For instance, if the immigrant investor is given a right of ownership or use of real estate, the present value of that real estate will not be considered as invested capital at risk.

An immigrant investor is free to receive a return on his or her capital investment as a share of profit from the new commercial enterprise. He or she may receive such a share of profit during the conditional residency period and/or before creating the required jobs. However, the profit share must not include a portion of the investor’s minimum qualifying investment and cannot have been guaranteed to the investor.

Redemption Language

The term “invest” does not include capital contributions that are “in exchange for a note, bond, convertible debt, obligation, or any other debt arrangements.”

If the investor has an intention of exiting the investment as soon as the conditions are removed on permanent residence, this is not an acceptable debt arrangement. Funds contributed in exchange for a debt arrangement are not considered capital. Generally, the immigrant investor may not enter into the agreement knowing that he or she has a willing buyer at a certain time and for a certain price.

If there’s an agreement between the immigrant investor and the new commercial enterprise that allows the investor to receive contractual repayment, this is not acceptable. In such a case, the money that the investor contributed is not considered as a contribution of capital.The repayment does not need to be guaranteed for it to be impermissible.

Business Activity

For showing that the capital was placed at risk, an immigrant investor must provide evidence of the actual undertaking of business activity.Without such evidence, there’s no assurance that the invested funds will be used to carry out the business of the commercial enterprise.

Made Available

The investor needs to make available the full amount of the investment to the business​(​es​)​ most closely responsible for the creation of employment. ​In the context of regional center, the petitioner must provide evidence that full capital amount was made available for the enterprise to the job-creating entity or entities, if separate.​

​In cases of a separate job-creating entity or entities, ​expenses such as ​​administrative fees, management fees, attorneys’ fees, finders’ fees, syndication fees, ​and​ other types of expenses or costs paid ​by ​the new commercial enterprise ​that erode the amount of capital ​made available to the job​-​creating entity ​cannot be counted toward the minimum investment amount.

Sole Proprietors and Funds in Bank Accounts

Funds in the personal bank account of a non-regional center investor who is operating a new commercial enterprise as a sole proprietor are not considered capital. Similarly, a deposit into a business account of the petitioner is not counted as at-risk requirement.

Escrow Accounts

A petitioner’s money may be held in escrow until the investor has received conditional permanent resident status if the immediate and irrevocable release of the escrowed funds is contingent only upon:

  • Approval of the Immigrant Petition by Alien Investor (Form I-526); and
  • Issue of visa and his/her admission to the United States as a conditional permanent resident, or approval of the petitioner’s application to Register Permanent Residence or Adjust Status (Form I-485).

An immigrant investor’s funds may be held in escrow within the United States to avoid any evidentiary issues such as significant currency fluctuations and foreign capital export restrictions.

When adjudicating the immigrant investor’s petition to remove conditions, USCIS requires proof of the release of the escrowed funds and proof of sustenance of the investment in the new commercial enterprise for the period of the immigrant investor’s residence in the United States.

At-Risk Requirement Before the Job Creation Requirement is Satisfied

The entire amount of minimum required capital must be used towards the business activity resulting in the creation of jobs. Before the job creation requirement is met, the following at-risk requirements apply:

  • The petitioner must have invested the required amount of capital at risk in order to receive a return/profit;
  • There must be a risk of loss and a chance for return;
  • ​There must be actual business activity; and
  • ​The entire amount of minimum capital must be made available to the business(as) most closely responsible for creating the required number of jobs.

At-Risk Requirement After the Job Creation Requirement is Satisfied

Once the job creation requirement has been met, the capital is considered at risk if it is used in the exchange of goods or services as per the scope of the new commercial enterprise’s ongoing business. After the job creation requirement is met, the same at-risk requirements apply as stated before.

3. Required Amount of Investment

The immigrant investor must invest the standard minimum investment amount in capital in a new commercial enterprise that creates at least 10 jobs for US workers. The exception is when the investor has invested in a new commercial enterprise, which is principally doing business in and creates jobs in a targeted employment area. In that case, the petitioner must invest a minimum of 50 percent of the standard minimum investment amount in capital.

This means that the present fair market value, in US dollars, of the immigrant investor’s legally derived capital must be at least $1,000,000, or $500,000 if investing in a targeted employment area for petitions filed before November 21, 2019. For petitions filed on or after November 21, 2019, the new amounts are $1,800,000 or $900,000 respectively, and will automatically increase on October 1, 2024, and every 5 years thereafter.

An immigrant investor is free to diversify the investment in other industries as long as he or she has paid the minimum investment amount for a single new commercial enterprise. In such a case, he or she needs to show eligibility established earlier (for example, the minimum investment amount, evidence of an at-risk investment,  and job creation) with respect to each job-creating entity at the time of filing.

In case of non-regional centers, an immigrant investor may invest only into a portfolio of wholly owned businesses, provided all capital is deployed through a single commercial enterprise and all jobs are created directly within that commercial enterprise or through the portfolio of businesses that received the capital through that commercial enterprise.

4. Lawful Source of Funds

The immigrant investor needs to demonstrate that the capital invested, or being actively invested in the new commercial enterprise was obtained lawfully. Any assets acquired through unlawful means are not counted as capital. In order to demonstrate legal means, the immigrant investor must disclose the direct and indirect source of his or her investment capital.

For the purpose of evidence, the following documents are applicable:

  • Foreign business registration records;
  • Personal tax returns, including income, franchise, property (whether real, personal, intangible), or any other tax returns of any kind filed within 5 years; evidence or returns filed for corporate, partnership, or any other entity in any form in any country or subdivision thereof;
  • Evidence of any other source(s) of capital; or
  • Certified copies of any judgments or evidence of all pending governmental civil or criminal actions or proceedings against the immigrant investor from any court in or outside the United States within the past 15 years.

For other source of capital, the evidence may include:

  • Annual reports of corporate, partnership, or other business entity;
  • Audited financial statements;
  • Evidence of any mortgage agreement or loan, security agreement, promissory note or other evidence of borrowing which is secured by the immigrant investor’s own assets;
  • Evidence of income from current or prior employers with who the immigrant investor worked;
  • Gift instrument(s) documenting gifts to the immigrant investor;
  • Evidence, other than tax returns,of payment of individual income tax, such as a payment certificate or individual income tax report, on the following:
  • Income from labor and service or business activities;
  • Wages and salaries;
  • Interest, dividends, and bonuses;
  • Rental income;
  • Income from property transfers;
  • Income or royalties from published books, articles, photographs, or other sources;
  • Royalties or income from patents or special rights;
  • Any incidental income or other taxable income determined by the relevant financial department;
  • Evidence identifying any other source of capital; or
  • Evidence of property ownership, including property purchase or sale documentation.

5. Targeted Employment Area

A targeted employment area (TEA) refers to a rural area or an area that has experienced a high rate of unemployment. A rural area refers to any area outside a standard metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or outside the outer boundary of any city or town having a population of 20,000 or more based on the most recent decennial census of the United States. A high unemployment area refers to an area that has experienced an unemployment rate of at least 150 percent of the national average rate.

The purpose of creating TEAs was to encourage foreign investment. A new commercial enterprise is considered to be doing business in the location where it provides goods or services that support job creation regularly and systematically.

Factors considered in determining where a new commercial enterprise is principally doing business include, but are not limited to, the location of:

  • Jobs directly created by the new commercial enterprise;
  • ​Any expenditure of capital related to the creation of employment;
  • ​Day-to-day operations; and
  • ​Assets used in the creation of jobs

Investments done by immigrant investor through regional centers allow him/her  to seek to establish indirect job creation. In these cases, principally doing business will apply to the job-creating entity rather than the new commercial enterprise. The job-creating entity needs to be principally doing business in the TEA for the lower capital investment amount to apply.

To prove that the area of the investment is a TEA, the immigrant investor needs to submit:

  • Documents proving that the area is located outside any MSA as designated by the Office of Management and Budget, or outside any city or town having a population of 20,000 or more as based on the most recent decennial census of the United States;
  • For petitions filed before November 21, 2019, either:
  • A letter from the state government designating a geographic or political subdivision located outside a rural area but within its own boundaries as a high unemployment area; or
  • Unemployment data for the relevant MSA or county;or
  • For petitions filed on or after November 21, 2019, either:
  • Unemployment data for the relevant MSA, county in which a city or town with a population of 20,000 or more is located, specific county within an MSA, or the city or town with a population of 20,000 or more which is outside an MSA;or

The TEA may not qualify in case if the population has increased or the unemployment rate has changed. The immigrant investor needs to establish that at the time of investment or at the time of filing the immigrant petition, as applicable, the geographic area of his/her investment qualified as a TEA.

The area in question qualifies as a TEA at the time the investment is made or the Form I-526 immigrant petition is filed, whichever occurs first, but may cease to qualify by the time the Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829) is filed. The investor need not demonstrate that the area in question remains a TEA at the time of filing the Form I-829 petition. Changes in population size or unemployment rates within the area during the period of conditional permanent residence are acceptable, since increased job creation is a primary goal, which has been met if the area was a TEA at the time the investment was made, or the Form I-526 was filed.

B. Comprehensive Business Plan

A business plan is considered comprehensive when it contains a description of the business, its targets and objectives and its products or services (or both).

The plan should contain detailed information about competitor and market analysis and targeted demographic. It should contain a list of required permits and licenses obtained. Whenever applicable, it should inform about the manufacturing or production process, the raw materials required, and the supply sources or any contracts for goods/services.

It should detail the marketing strategy of the business, organizational structure and its staff’s experience along with details about staffing requirements and conditions. It should discuss sales and profit projections.

However, the most important factor is that the business plan must be credible.

USCIS checks an overall purpose of the business plans. The business plan of a petitioner may not include every single detail but attention to details makes it more eligible for being considered as credible.

C. New Commercial Enterprise

Any commercial enterprise that was established after November 29, 1990 is a new commercial enterprise. EB – 5 petitioner may invest in a commercial enterprise established after November 29, 1990 if he/she meets the remaining eligibility criteria.

Any for-profit activity that results in conducting a lawful business that generates employment is called a commercial enterprise.

Types of commercial enterprises include, but are not limited to:

  • Sole proprietorship;
  • Partnership (whether limited or general);
  • Holding company;
  • Joint venture;
  • Corporation;
  • Business trust; or
  • Other entity, which may be publicly or privately owned.

A holding company and its wholly owned subsidiaries are considered a commercial enterprise as long as each such subsidiary is engaged in a commercial activity that generates profit lawfully.

1. Enterprise Established On or Before November 29, 1990

All those commercial enterprises that were established on or before November 29, 1990 are considered on the condition that they be restructured or expanded through the immigrant’s investment of capital.

2. Purchase of an Existing Business that is Restructured or Reorganized

The immigrant investor can invest in a commercial enterprise that was formed on or before November 29, 1990 on the condition that such a business is so restructured that it results in the establishment of a new commercial enterprise. However, factors such as superficial changes to the office premises or changes in the marketing strategy or even a simple change in ownership do not qualify as reorganizing.

However, a business plan that modifies an existing business could qualify as restructuring. Example, converting a café into a nightclub.

3. Expansion of an Existing Business

If the petitioner has invested in a business that existed on or before November 29, 1990, he or she may make a substantial change in the net worth or number of employees from the investment of his/her capital.

Substantial change refers to 40 percent increase either in the net worth or in the number of employees.

But note that the immigrant investor still needs to invest the minimum capital amount and generate at least 10 jobs for US workers.

4. Investment in New Commercial Enterprise

The immigrant investor needs to demonstrate that he/she has invested the required amount of capital to the new commercial enterprise. The proof may include, but is not limited to, the following:

  • Bank statements of the amounts deposited in US business accounts for the enterprise;
  • Evidence of assets bought for use in the US enterprise, including sales receipts, invoices and purchase contracts;
  • Proof of property transferred from the immigrant’s country for use in the US enterprise. The documents include US Customs and Border Protection commercial entry documents, bills of lading, and transit insurance policies containing sufficient information proving ownership or proof to identify the property and to indicate the fair market value of such property;
  • Proof of transfer of funds in exchange of shares of the new commercial enterprise; or
  • Evidence of any loan or mortgage agreement for which the immigrant investor is personally and primarily liable.

5. Engagement in the Management of New Commercial Enterprise

It is mandatory for the immigrant investor to be engaged in the active management of the new commercial enterprise, either through day-to-day managerial duties or through policy formulation.

For showing active management, the immigrant investor must submit:

  • A document demonstrating his/her title or position he/she enjoys or will have in the new enterprise and a detail of the role’s duties;
  • Documents proving that the petitioner is a corporate officer or a member of the corporate board of directors;[77]
  • For petitions filed before November 21, 2019, if the new enterprise is a partnership, either limited or general, the investor will need proof of engagement in either direct management or policymaking activities; or
  • For petitions filed on or after November 21, 2019, the investor needs to show proof of engagement in policy making activities. He/she also needs to show he/she is an equity holder in the new commercial enterprise and the organizational documents of the new commercial enterprise bestows him/her certain powers, rights and duties generally granted to equity holders of the new commercial enterprise’s type of entity in the jurisdiction in which the new commercial enterprise is organized.[79]

D. Creation of Jobs

The petitioner needs to invest the required amount of capital in a new commercial enterprise that creates at least 10 jobs for qualifying US employees. Note, however, that the new commercial enterprise needs to create the jobs.

Example: Non-Regional Center

Ten non-regional center immigrant investors seek to establish a restaurant as their new commercial enterprise. They need capital to pay financing costs such as purchase of the land, payment to third unrelated parties, build business plans, obtaining licenses, build the restaurant, maintaining the grounds, staff the restaurant, as well as many other types of expenses needed to build a new restaurant.

The non-regional center immigrant investor’s capital may be used to pay part or all of these expenses. Each non-regional center immigrant investor’s investment of capital helps the new commercial enterprise (the new restaurant) create 10 jobs. The 10 immigrants’ investments must result in the new restaurant’s creation of 100 jobs (10 jobs for each investor’s capital investment) for qualifying employees.

1. Bridge Financing

A developer may secure interim or bring financing for the project. Even if the immigrant funds come in later and replace the bridge loan, the immigrant investors can take advantage of the jobs that have already been created. The replacement of bridge loan should have been contemplated prior to the taking of the bridge loan.

For example, if traditional financing originally contemplated to replace the temporary financing is no longer available to the commercial enterprise, a developer is not precluded from using immigrant investor capital as an alternative source. Immigrant investor capital may replace temporary financing even if this arrangement was not contemplated prior to obtaining the bridge or temporary financing.

The full amount of the immigrant’s investment must be made available to the business or businesses most closely responsible for creating the jobs upon which eligibility is based. In the regional center context if the new commercial enterprise is not the job-creating entity, then the full amount of the capital must be invested first in the new commercial enterprise and then made available to the job-creating entity or entities.

2. Multiple Job-Creating Entities

It is not mandatory that the jobs are created in a single entity of the new commercial enterprise through the immigrant investor’s capital. His/her required amount of capital may be distributed to more than one job-creating entities in portfolio investment strategy. Also, the immigrant investor will need to demonstrate that the entire required capital amount is made available to the business(es) most closely responsible for creating the jobs upon which the petition is based. This entity may be single or multiple.

3. Full-Time Positions for Qualifying Employees

The minimum number of jobs to be created is 10 and these have to be full time positions for qualifying employees. An employee is a professional who is appointed by the new commercial enterprise to provide labour or services in exchange for wages or other remuneration directly from the new commercial enterprise. In the case of the Regional Center Program, an employee can also mean a person who provides services or labor in a job that has been created indirectly through investment in the new commercial enterprise.

Qualifying Employee

The immigrant investor needs to create jobs for 10 qualifying employees. A qualifying employee must be a US citizen, a lawfully admitted permanent residents, or other immigrants lawfully authorized for employment in the United States including, but not limited to a temporary resident, a conditional resident, a refugee, asylee, or an alien remaining in the United States under suspension of deportation. A qualifying employee cannot be the immigrant investor or the immigrant investor’s spouse, sons, daughters, or any nonimmigrant.

Full-Time Employment

The immigrant investor must create full-time employment positions for qualifying employees. Full-time employment refers to a position that requires the qualifying employee to work for a minimum of 35 working hours per week. In the case of the Regional Center Program, full-time employment refers to a position created indirectly and having the same working hour condition as above.

A full-time employment position can also be filled through a job sharing arrangement by two or more qualifying employees. However, job sharing is allowed only when the minimum working hour requirement is duly met. Full-time employment does not include combinations of part-time positions, even if those positions when combined meet the hourly requirement per week.

In case of job-sharing arrangement, the following evidence among others, may be relevant:

  • A written job-sharing agreement;
  • A weekly schedule that lists the key result areas of each employee under the job-sharing arrangement; and
  • Proof of the job-sharing responsibilities or benefits of a permanent, full-time position between the employees involved.

Please note that jobs that are seasonal, intermittent, temporary, or transient in nature do not qualify as permanent full-time jobs. However, the jobs that are expected to last at least 2 years generally do not fall in the above category and are acceptable for the purpose.

4. Measuring Job Creation

The immigrant investor seeking to enter the United States through the EB-5 Program may demonstrate creation of jobs and investment through three methods.  These methods depend on the new commercial enterprise and where it is located.

Troubled Business

When an immigrant investor’s capital helps in protecting a troubled business, the US economy is benefitted. The immigrant investor can do so by investing in a new commercial enterprise that is a troubled business. He or she needs to demonstrate, however, that the number of existing employees in the troubled business is being, or will be, maintained at no less than the pre-investment level for a period of at least 2 years.The same applies for regional center program too. However, in both cases, the minimum number of jobs to be created is still 10. For instance, an immigrant investor invested in a troubled business. In the process, he created four qualifying jobs and retained all six pre-investment jobs. This would satisfy the job creation requirement.

The regulations define a troubled business as a business that has:

  • Existed for at least 2 years;
  • Has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the 12-month or 24-month period prior to the priority date on the Immigrant Petition by Alien Investor (Form I-526); and
  • Had a loss for the same period at least equal to 20 percent of the troubled business’s net worth prior to the loss.

In order to demonstrate the existence of the troubled business for 2 years, successors-in-interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

New Commercial Enterprise Not Located Within a Regional Center

When an immigrant invests in a new commercial enterprise not located within a regional center, the full-time positions must be created directly by the new commercial enterprise. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.

New Commercial Enterprise Located Within a Regional Center

In the case of a new commercial enterprise located within a regional center, full-time positions can be created either directly or indirectly by the new enterprise.  All the other EB-5 program requirements still apply to investors with the exception of indirect job creation. However, immigrant investors must use reasonable methodologies to establish the number of indirect jobs created.

Direct jobs refer to job positions that require an employer-employee relationship between the new commercial enterprise and the people it employs. Indirect jobs, on the other hand, refer to job positions that are held by the employees outside of the new commercial enterprise but are created as a result of the new commercial enterprise. For example, indirect jobs can include, but are not limited to, those held by employees of the external job-creating entity (when the job-creating entity is not the new commercial enterprise) as well as employees of producers of materials, equipment, or services used by the new commercial enterprise or job-creating entity.

In addition, there are induced jobs that are considered a subset of indirect jobs. Induced jobs are those that are created when the new direct and indirect employees spend their earnings on consumer goods and services. Indirect jobs can qualify and be counted as jobs indirectly related to a new commercial enterprise associated with a regional center, based on reasonable methodologies, even if the jobs are located outside of the geographic boundaries of a regional center.

USCIS may request additional evidence of the creation of indirect jobs. USCIS may also request additional evidence to verify that the direct jobs (those held at the new commercial enterprise) will be or are full-time and permanent, which may include a review of W-2 forms or similar evidence.

Multiple Investors

A single new commercial enterprise may have multiple investors – some may be immigrants, others may be US citizens. In that case, the total number of full-time positions created for qualifying employees will be allocated only to those immigrant investors who have used the establishment of the new commercial enterprise as the basis for their immigrant petition. Those who do not need a fifth-preference visa or are existing US citizens, do not need the job creation requirement to be able to invest. Similarly, the job creation requirement does not apply to non-individuals/non-natural persons such as corporations investing in a new commercial enterprise. Full-time job positions will be allocated to immigrant investors based on the date their petition to remove conditions was filed, unless otherwise stated in the relevant documents.

In general, multiple immigrant investors may not claim credit for the same employment creation.  Similarly, if the job position has already been allocated to one immigrant investor in a previously approved case, another immigrant investor may not seek credit for the same.

5. Evidence of Job Creation

The immigrant investor, for the purpose of proving the creation of 10 full-time positions, must submit the following evidence:

  • Documents including photocopies of Employment Eligibility Verification (Form I-9), relevant tax records, or other similar documents for 10 qualifying employees, if such employees have already been appointed; or
  • A copy of a detailed business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for at least 10 qualifying employees will be met within the next 2 years and the approximate dates employees will be hired.

The 2-year period is deemed to begin 6 months after adjudication of Form I-526. The business plan must demonstrate in clear terms that the condition of required number of jobs will be met by the end of this 2-year period.

Troubled Business

In the case of a troubled business, a detailed and clear business plan must be submitted with other required evidentiary documents.

Regional Center Investors

The immigrant investor needs to demonstrate the direct or indirect job creation by the types of documents identified in this section along with reasonable methodologies in the case of a new commercial enterprise within a regional center.Such an investor needs to submit a comprehensive business plan.

Additionally, if the job creation needs to be demonstrated through the use of an economic input-output model, USCIS will demand full disclosure of the use of reasonable methodology. For example, if the inputs into the input-output model reflect jobs created directly at the new commercial enterprise or job-creating entity, the investor needs to demonstrate reasonability of the direct jobs input. Relevant documentation may include tax or payroll records, Form I-9, or if the jobs are not yet in existence, a comprehensive business plan demonstrating the number of jobs to be created and the timelines of the same.

If the inputs into the model reflect expenditures, the investor must demonstrate that the expenditures input is reasonable. Relevant documents may include receipts and other financial records for expenditures incurred to business and a detailed projection of sales, costs, and income projections such as a pro-forma cash flow statement associated with the business plan for expenditures accrued in future.

In the same way, if the inputs into the model reflect revenues, the investor has to demonstrate that the revenue input is reasonable. Similar relevant documents will be needed as in the case of expenditures. Example, tax or other financial records for revenues that have occurred or a detailed projection of sales, costs, and income projections such as a pro-forma income statement associated with the business plan for revenues accrued in future.

For confirming the reasonability of an economic methodology, USCIS analyzes whether the multipliers and assumptions about the geographic impact of the project are reasonable. For example, when reviewing the geographic level of the multipliers used in an input-output model, the following factors, among others, may be considered:

  • The area’s demographic structure (for example – workforce rate, labor pool supply, population growth, and population density);
  • The area’s contribution to supply chains of the project; and
  • Reasonable connectivity in terms of socioeconomic variables in the area (for example, purchasing power or per capita income levels).

 

Source: https://www.uscis.gov/eb-5

 

Disclaimer: The above information is not legal advise. Global Immigration Review does not guarantee the accuracy of the information provided above. It is recommended that readers appoint an attorney or a service provider to file their citizenship by investment application. For up to date information refer to the appropriate government website.