Virginia, US
 
 
 
 
An EB-5 investor visa is a United States visa which provides a method of obtaining a green card for foreign nationals who invest money in the United States. In the United States, there are allowances for gaining permanent residence as well as temporary residence or visa status. Fragomen has experience with both of these methods, and helps our clients decide which best suits their needs. 
 
The EB-5 investor visa may allow foreign investors in commercial enterprises that will benefit the economy and create or maintain at least 10 full-time jobs to become eligible for a green card. The EB-5 investor visa is also referred to as the Employment Based Fifth Preference category of visas, hence ‘EB-5.’ This visa eligibility process is controlled by the type, purpose, and amount of investment made by a foreign investor.
 
There are four methods by which an investor may meet the EB-5 criteria: 
 
  • Creating a new business
  • Expanding an existing business
  • Investing in a troubled business
  • Investing in a ‘regional center’
 
The basic amount that needs to be invested is $1,000,000, however this amount can be reduced based on circumstances.
 
 
 
To be considered an eligible new business enterprise under the EB-5 requirements, several criteria must be met.
Namely: 
 
  • Must be in the process of investing at least $1,000,000 in the United States, OR
  • Must be in the process of investing at least $500,000 if the enterprise is located in a Targeted Employment Area (TEA)
  • Benefit the U.S. economy by providing goods or services to U.S. markets
  • Create full-time employment for at least 10 qualified U.S. employees
  • Be involved in the day-to-day management or in policy-making for the business
 
 
 
An investment in an existing U.S. business must meet the following requirements to be considered an eligible investment for EB-5 purposes:
 
  • Must be in the process of investing at least $1,000,000 in the United States, OR
  • Must be in the process of investing at least $500,000 if the enterprise is located in a Targeted Employment Area (TEA)
 
The investment must EITHER:
 
  • Increase the capital of the enterprise by 40%
  • Increase the employment base by 40% (with a minimum of 10 additional workers)
  • Be involved in the day-to-day management or in policy-making for the business
 
 
 
An investment in a troubled business enterprise must meet the following criteria to be considered an eligible investment for EB-5 purposes: 
 
  • Must be in the process of investing at least $1,000,000 in the United States, OR
  • Must be in the process of investing at least $500,000 if the enterprise is located in a Targeted Employment Area (TEA)
  • The business enterprise must have existed for two years
  • The business enterprise must have incurred a net loss for the 12 to 24 month period prior to submitting an application
  • This net loss must be at least 20% of the business’ net worth before the loss was incurred
  • Upon investment, the enterprise must maintain the pre-investment level of employment for at least two year The investor must be involved in the day-to-day management or policy making for the business
 
 
 
A regional center is defined by any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.
 
Currently, there are about 135 designated regional centers. Fragomen is able to assist clients with the parameters surrounding this process, and have included a checklist for reference.
 
Additionally, Fragomen attorneys are experienced in the proper methods to complete a business plan necessary for EB-5 approval, review of econometric impact studies and of the transactional documents for EB-5 law and regulation compliance. 
 
 
 
A Targeted Employment Area is defined as ‘a rural area or an area that has experienced high unemployment of at least 150% of the national average.’ 
 
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Fragomen’s scope of legal representation of clients in EB-5 matters is solely to the provision of immigration law guidance and advice as it relates to one or more of the following i) an application to United States Citizenship and Immigration Services (USCIS) for designation and registration of a new regional center; ii) amendment of an existing regional center as provided for by the regional Center Pilot Program; and/or iii) the application(s) for lawful permanent residence (green cards) by individual investors in an enterprise whether under a regional center or as individual investors, under the laws relating to Immigrant Investor Employment Creation Visas (E-5).
 
The pursuit of specific investment programs in connection with EB-5 matters is done solely at the investor’s own risk. Clients are strongly advised and encouraged to obtain independent counsel to assist and advise them as to the ramifications of the investment(s) that they may make, or have made, or will consider making in connection with EB-5 matters.