Immigrant investor issues

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Section 203(b)(5) of the Immigration and Nationality Act (INA) provides for the admission of up to 10,000 “immigrant investors” each year. In reality, substantially fewer than 1,000 are admitted for lawful permanent residence each year. For those who qualify, and who genuinely wish to make an investment in the United States economy, this is an excellent means by which to receive lawful permanent residence(‘green card”) status.

Unfortunately, far too many prospective “investors” see this as a quick and easy way to immigrate and try to take advantage of this provision to gain immigrant status. The problem for these applicants is that the rules are very strict and unless complied with in full, the application will not be approved.

Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested -- or are actively in the process of investing -- the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.

Qualifying "eligible individuals" include those:

  1. 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
  2. Who have invested -- or who are actively in the process of investing -- in a new commercial enterprise:
    • At least $1,000,000, 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
  3. Whose engagement in a new commercial enterprise will benefit the United States economy and:
    • create full-time employment for not fewer than 10 qualified 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.

In order to seek status as an immigrant investor, the investor must file an Immigrant Petition by Alien Entrepreneur (form I-526). The Form I-526 must be submitted with supporting documentation which demonstrates t clearly hat the individual’s investment meets all requirements:

  • 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.

Once the immigrant investor petition is approved, immigrant investors may obtain status as a conditional resident by:

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

Conditional residence (CR) only permits the investor to remain and work in the United States for two years. In order to become a lawful permanent resident (LPR), eligible investors must file a Petition by Entrepreneur to Remove Conditions (form I-829) within 90 days before the second anniversary of an Alien Investor’s admission to the United States as a conditional resident.

For those who intend in good faith to make a qualifying investment, this is an excellent route to U.S. lawful permanent resident status. It should not be considered as a shortcut, however, by prospective immigrants who feel that the government does not take the eligibility requirements seriously.