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EB5 Visas and Regional Centers

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EB5 Visas and Regional Centers

Are you an immigrant thinking of your children enrolled in one of the high quality schools in the U.S.? Maybe your child will have his full potential explored, and one day he will be in an Ivy League university. Even though you own or operate a successful business in your home country, you have no family, no connection to the U.S. What to do? Have you considered EB5 program to move to the U.S. with your entire family in less than a year?

Are you a business owner in the U.S. that has to deal with your overseas suppliers on daily basis? Did they approach you for ways to bring their families to the U.S.? Did you feel the squeeze of credit shortage from your bankers and you have to look for alternative funding for that project that you have been thinking for quite some time? What to do? Have you considered EB5 program to certify your business as a Regional Center so as to tap the money from overseas?

If so, you need to know about EB5 Investment Green Card.

HISTORY

In 1990, Congress created the Employment Creation Immigrant Visa Category (EB-5). Section 121(a) of Public Law 101-649 (Nov. 29, 1990). Section 203(b)(5) of the Immigration and Nationality Act, as amended, provides for admission to permanent residence on a two-year conditional basis to qualified aliens who will contribute to the economic growth of the United States by investing in U.S. businesses and creating needed employment opportunities. Section 203(b)(5) of the Act authorizes up to 10,000 visas each fiscal year to alien entrepreneurs (along with their spouses and unmarried minor children) who have invested or are actively in the process of investing in a new commercial enterprise.

ONE MILLION INVESTMENT

The basic EB5 program requires the creation of a new commercial enterprise. It must both benefit the U.S. economy and directly create full-time employment for not fewer than 10 “qualifying employees,” defined as U.S. citizens, lawful permanent residents, or certain other immigrants lawfully authorized to be employed. Buying a house does not qualify since this is considered as noncommercial activities.

In general, the Act established a threshold investment amount of one million U.S. dollars ($1,000,000.00). In order to encourage the investment in new enterprises located in areas that would most benefit from employment creation, section 203(b)(5)(B) of the Act sets aside on an annual basis 3,000 of the available 10,000 EB-5 visas for qualified aliens who have made investments in “targeted employment areas.”Such targeted employment areas are defined in the Act to include rural areas and areas which have experienced high unemployment. The investment amount for investing in a targeted employment area is currently set at five hundred thousand dollars ($500,000.00).

HALF MILLION INVESTMENT THROUGH REGIONAL CENTER

Since 2005, the concept of participation in a Regional Center has become popular. Latest statistics indicates there are currently 194 approved Regional Centers. Approximately 92% of the EB5 petitions filed each year are filed by Investors who are investing in RC-affiliated commercial enterprises.

The Regional Center Pilot Program was first instituted in 1992. Three thousand of the 10,000 total available EB-5 visas are set aside for aliens who invest in a USCIS designated “regional center” in the United States organized “for the promotion of economic growth, including improved regional productivity, job creation, and increased domestic capital investment.”

An alien investing in a new commercial enterprise affiliated with and in a regional center is not required to demonstrate that the new commercial enterprise itself directly employs ten U.S. workers; a showing of indirect job creation and improved regional productivity will suffice.

FILING PROCESS AND TIMEFRAME

The filing process of an EB5 petition typically involves three steps:

Step I:

Filing Immigrant Visa Petition (Form I-526) with USCIS. Processing time is normally six – nine months.

 

Step II:

(A) Upon approval of Step I, applicants physically within the U.S. under lawful non-immigrant status will be able to request adjustment of status (Form I-485) with USCIS. Upon approval, the applicant will become Conditional Lawful Permanent Resident for the period of two years. Processing time is normally six months, or

(B) Upon approval of Step I, applicants physically outside the U.S. will initiate consular processing with the U.S. Consulate within the applicant’s home country. Processing time is normally six-12 months. Upon entry into the U.S., the applicant will become Conditional Lawful Permanent Resident for the period of two years.

 

Step III:

90 days before the two-year period expires, the applicant will request the removal of the condition by filing Form I-829 with USCIS. Upon approval, the applicant will become officially the Lawful Permanent Resident of the United States. Processing time is normally six-nine months.

 

COMMON TERMINOLOGIES

Some common concepts involved in EB5 petitions:

Regional Center:

Any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.

Capital:

Cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien provided that he or she is personally and primarily liable and the assets of the new commercial enterprise are not used to secure any of the indebtedness. If the alien uses a secured note, the alien must be able to show that this note has a cash value, and that the total value of all capital invested, including the note, has a cash value equal to or greater than the statutory minimum.

Full-time employment:

Year-round employment and not seasonal full-time employment. Full-time employment consists of 35 hours a week. Seasonal positions do not qualify for purposes of the full-time employment requirement for direct jobs.

Targeted Employment Area:

A TEA is either: A rural area or an area experiencing a high unemployment rate at the time of the capital investment or the time of filing of the Form I-526 petition, whichever occurs first. If the petitioner shows that the area where he or she is investing is a rural area, the petitioner need not also establish that the area has high employment. Conversely, if the area is a high unemployment area, the petitioner need not also show that it is a rural area. “High unemployment area” means an area, which has experienced unemployment of at least 150 percent of the national average rate.

Bretz & Coven has helped immigrant entrepreneurs who participated in EB5 program since the early days when it was instituted in 1992. We are proud today to successfully have obtained hundreds of approvals for aspiring immigrants and their families over the years. In addition, we have also successfully assisted commercial enterprises within the U.S. to obtain certifications as Regional Centers. We are happy to help creating jobs within the U.S. and bring more prosperity to our clients and our country.

Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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