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Jian Law Group

Immigrant investor program (EB-5):

Foreign investors may take the advantage of EB-5 to invest in the U.S. in order to obtain the permanent residency with less restrictions. EB-5 is created by Congress in 1990 and modified several times thereafter for the purpose of stimulating the U.S. economy through job creation and capital investment by foreign investors. There are 10,000 numbers available for qualifying investors each fiscal year; however, in order to further encourage the immigration through investment, Congress created a temporary pilot program in 1993 and reserving 3,000 visas for investors who invest in “designated regional centers”. In 2003, Congress reauthorized the Regional Center Pilot Program by implementing many rules to strengthen the program.

Please bear in mind that foreign EB-5 investors’ capital must be fully at risk, and that guarantee of any capital return is strictly prohibited. Besides, investors’ EB-5 investment must be able to create (new business) or preserve (trouble business) at least 10 full-time jobs. USCIS puts a heavy weight onto decision making based on the above two factors.

According to the USCIS definition, jobs creation comes in two forms and they are:

1. Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his/her capital. Under direct jobs creation, investors need to actively engage in the daily management.

2. Indirect Jobs and induced jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. Please be aware that indirect and induced jobscan only apply to foreign investors who invest under Regional Center Program.

EB-5 investor program takes on two folds with “the regular program” and “the regional center program” and each will be discussed in detail below.

The regular EB-5 program requiresall EB-5 investors to meet three essential requirements which:

(1) All investors must invest in a “new commercial enterprise”. A new Commercial enterprise by USCIS definition is a commercial enterprise must be established after November 29, 1990 or established on or before November 29, 1990 with necessary restructure.

(2) Foreign investors invest under regular program only allows to create 10 full-time “direct jobs” for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a “conditional permanent resident”.

(3) The minimum qualifying investment in the United States is $1 million. However, if invested in a targeted employment area (high-unemployment area that is an area experiencing unemployment of at least 150 percent of the national average rate or rural area that is any area other than an area within a metropolitan statistic area or the outer boundary of any town having a population of 20,000 or more), the minimum qualifying investment in the United States is $500,000.


The regional center program was created by Congress in 1993 and reauthorized in 2003. Unlike the regular program, foreign investors who invest via regional center can take the advantage of a more expansive concept of job creation including both “direct”, and/or “indirect and/or induced” jobs. If the investment falls in a targeted employment area, the minimum qualifying investment is $500,000, otherwise is $1 million. The regional center program may be a better option for foreign investors who do not wish to actively participate in too much daily management. However, the important factor for foreign investors to take into consideration is that the organizers of the regional centers seeking the “regional center” designation from USCIS must submit a proposal, supported by economically or statistically valid forecasting tools. Jian Law Group reminds our clients that it is extremely important to understand the concept of the regional center invested because each regional center must be pre-approved by the USCIS in order to be eligible for green card application.


EB-5 investor program has become more popular in recent years for several reasons. As mentioned in the beginning, there are a lot less restrictions compared to other immigrant visas such as no age limitation, no job experience needed, no language requirement, etc. Other than that, the educational benefits which are most of our clients’ concern for their children are available to all qualified EB-5 visa holders. Once investors are granted for the visas, their spouses and unmarried children under the age of 21 are qualified to be granted the U.S. lawful permanent residency.


Although EB-5 visa has its own advantages as described above, the anticipated at risk large capital amount along with whether or not to remove the conditional status of permanent residency have made the EB-5 visa a rather complex immigration process for foreign investors to undergo. We narrow them down to TWO key factors that are also the vital parts to success of I-829 petition to remove the conditions for both regular and regional center program. The purpose to file form I-829 is for a conditional permanent resident who obtained such status through entrepreneurship and wish to remove theconditions on his/her residence. Therefore, in order to remove the conditional status of the permanent residency for foreign investors who invest through regular program, the investment capital must be fully at risk during the 2-year conditional status. The investors must be able to demonstrate that the U.S. 1 million or $500,000 (condition explained above) investment capital is fully spent to the project of investment. The second factor is that the foreign investors’ investment must create (new business enterprises) or preserve (trouble business) minimum 10 full-time jobs after the 2-year term of staying conditional.  Jian Law Group and our experts are here to explain in detail on how to successfully overcome the removal of the conditional status.


Foreign investors who invest under regional center pilot program have also encountered the removal for the conditional residency status. In order to overcome this hurdle, choosing the right and trustable regional centers to invest will be something that needs to be closely determined. The fact shows that there are more than 200 EB-5 regional centers pre-approved by the USCIS, but only some of them are successfully granted to the investors. Under that regard, Jian Law Group not only simply recommends the most trustable regional centers to our clients, but alsoassists our clients with their due diligence on any region center program with which they want to invest via our profound legal knowledge and extensive experience. Having been working at the most famous regional center in the past, our attorneys are very knowledgeable and experienced in analyzing regional center program. Disregard which programs our clients decide to invest, we make sure that our teams give the satisfaction to our clients.  


Besides the importance to remove the conditional status, under both regular and regional center program, having a strong and yet steady “source of funds” information in order to demonstrate that the funds is from the legal source is an extremely important determinant for USCIS to grant the I-526 immigration petition. Such sources could be generated from salary (bonus, commissions), loans, gift of funds, proceedsfrom sale of propertyand all other lawful means; however, the essential point here is not through what methods have the individuals invested the capital, but rather, being able to track the funds from the very beginning is what USCIS looking for. For instance, if a foreign investor received a large amount of funds as a gift from someone, then the information on the person who handed the gift of funds will be tracked. With our help, Jian Law Group gives the advice and strategy on source of funds that istailored for the concerns from our clients.


With enough said, it is strongly recommended each individual who seeks immigration under EB-5 to find the experienced professionals to be able to explain the detail fully and properly so that individuals feel comfortable for what to be expecting. Here at Jian Law Group, our well-trained and experienced professionals are specialized in tracking source of funds and analyzing regional center programs. Again, immigration under EB-5 may have a lot advantages but it could be a hassle and a time-consuming process when it comes to filing the petition. Please contact us for any inquiries.

 

 

 

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