EB-5 visas are available to individuals who establish that they have invested, or are in the process of investing, a required amount of capital in a new United States commercial enterprise. The EB-5 visa holder must be in some manner participating in the management of the organization.
To qualify for an EB-5 visa, the applicant must show (i) that he or she has invested at least the required amount of capital; (ii) that the United States enterprise in which he or she invested is a qualifying “new commercial enterprise;” (iii) that the investment is an “at risk” investment; and (iv) that the applicant is participating in some manner in the management of the organization.
Required Amount of Capital
The required amount of capital is generally $1,000,000.00. This amount, however, may be reduced to $500,000.00 if the enterprise principally does business in a “targeted unemployment area.” A targeted unemployment area is defined as either a rural area or an area with an unemployment rate of at least 150 percent of the national average. The capital that the individual has invested may take the form of cash, equipment, inventory, or any other assets given to the enterprise by the applicant or by a business in the United States owned by the applicant. If the investment takes the form of property, the applicant must remain personally liable for any outstanding payments owed to pay for the property and the property may not be used to secure any balance owed. The investment capital must also have been obtained by the investor using lawful means, and the burden is on the applicant to provide evidence of the legal source of the capital.
Qualifying New Commercial Enterprise
To be a qualifying “new commercial enterprise,” the organization must be a new enterprise engaged in for profit business and must sufficiently benefit the United States economy.
The commercial enterprise is considered “new” if the applicant has created a new organization, the applicant has purchased an existing organization and restructured it into an essentially new enterprise, or the applicant is expanding an existing organization to increase either its net worth or number of employees by at least 40 percent.
To show that the enterprise sufficiently benefits the United States economy, the applicant must show that the new enterprise, or the expansion of the existing enterprise, will create at least 10 full-time positions for United States workers. A full-time position is one in which the employee works at least 35 hours per week. For purposes of this requirement, United States workers may include United States citizens, legal permanent residents, conditional permanent residents, asylees, refugees, and grantees of suspension of deportation or cancellation of removal. Any positions filled by the applicant or his or her immediate family members do not count toward the 10 required full-time positions.
To show that the enterprise is new and engages in for-profit business, an applicant may use documents such as the Articles of Incorporation or other formation documents of the enterprise evidencing its authorization to do business in the United States. To show that the enterprise meets the economic contribution requirement, an applicant may provide copies of I-9 forms and tax records if employees have already been hired, or a copy of a comprehensive business plan that shows when employees will be hired and for what positions they will be hired. The plan must show that at least 10 full-time positions will be filled within two years of the time of filing the petition.
At Risk Investment
To qualify as an “at risk” investment, the applicant must establish more than merely an intent to invest. The applicant must establish that money has been placed in the enterprise’s business accounts, assets have been purchased for use in the United States enterprise, money has been transferred to the enterprise in exchange for stock, assets have been transferred to the United States enterprise from abroad, or some type of a loan, mortgage, note, or security agreement has been executed by the applicant to obtain money or assets for the enterprise.
To establish this element, the applicant may provide bank statements, receipts or invoices evidencing purchases of assets, documents evidencing the transfer of assets to the United States, stock certificates, or copies of loan or mortgage documents. If promissory notes or escrow accounts are set forth as evidence of an at risk investment, the USCIS may add additional requirements to show that the investment is truly at risk.
Management by the Applicant/Investor
The applicant must in some manner be involved in the management of the enterprise. This can include either day-to-day managerial or supervisory duties, or a position in which the individual contributes to policy formation for the enterprise.
The applicant may establish this requirement through the use of written documents describing his or her title and duties, as well as any operating agreements or other documents setting forth the applicant’s role and duties within the enterprise.