Since it was created in 1990, the EB-5 Visa remains one of the best potential pathways for obtaining a “green card” in the country. Like most U.S. visa programs, the regime governing the EB-5 Visa is complex and multifaceted, requiring numerous forms, supporting documentation, and guidelines. Learn how you can qualify and why the assistance of an immigration attorney is so crucial to improving your likelihood of admission.

The Basics of the EB-5 Visa

One of five employment-based (EB) preference programs in the U.S., the EB-5 was created by Congress to “create jobs for U.S. workers and to infuse new capital into the U.S. economy,” namely by encouraging “alien entrepreneurs” to invest a certain amount in a “new commercial enterprise” to support ten full time jobs for U.S. citizens or lawful residents.

The EB-5 Visa essentially rewards foreign nationals who invest in the country and help the economy with conditional permanent residence for them and their spouses and dependents. However, the EB-5 Visa is very particular about the details of the investment: everything from the amount to where and how it is invested must follow guidelines to qualify.

Capital Investment Requirements

The funds or other tangible assets used in the investment must be lawfully acquired and controlled by the alien entrepreneur, who will be required to provide proof of their ownership. An EB-5 Visa applicant must also demonstrate that they are personally and primarily liable for the capital—in other words, that they are at risk of losing the funds if the investment were to fail. Moreover, unlike other investment visas like the E-2 Visa, the EB-5 Visa has a specific dollar amount that must be invested to qualify: $1 million. Although this is the general required a minimum, an investment of $500,000 will qualify if it is directed to a “Targeted Employment Area” (TEA) either a rural area or an area that has experienced unemployment of at least 150 percent of the national average rate.

New Commercial Enterprise Requirement

Under EB-5 Visa rules, the target of the investment must be a “new commercial enterprise” that was established no earlier than November 29, 1990. Businesses created on or before that date can qualify if 1) they were purchased and then restructured into a new commercial enterprise or 2) they were expanded so the net worth or number of employees increased 40 percent.

A commercial enterprise is defined as any profit-making activity formed for the ongoing conduct of law business, including, but not limited to:

  • Partnerships (limited or general)
  • Holding companies (if its wholly owned subsidiaries are engaged in for-profit business)
  • Joint ventures
  • Corporations
  • Limited liability companies

The commercial enterprise can be private or public but cannot include non-commercial activities such as owning and operating a personal residence.

Job Creation Requirement

Your investment in the new commercial enterprise must create full-time positions for at least ten qualifying employees. A full-time position is defined as being at least 35 working hours a week. Qualifying employees must U.S. citizens, lawful permanent residents, or immigrants authorized to work in the U.S.—they do not include the EB-5 Visa holder, their spouse, or children, or a foreign national in any nonimmigrant status (such as an H-1B Visa holders).

These full-time positions must be directly created by the new commercial enterprise or its wholly owned subsidiaries, i.e., the full-time jobs must be held by employees. Keep in mind that are temporary, seasonal, or otherwise transient in nature do not qualify as permanent full-time jobs. However, if they are expected to last at least two years, they will qualify.

Consult with an EB-5 Visa Specialist from Jurado & Associates, P.A.

While the EB-5 Visa offers tremendous opportunities for investors from across the world, it can be among the most challenging visas to qualify for, especially for foreign nationals with little to no background in U.S. immigration policy. With an immigration attorney from Jurado & Associates, P.A. on your side, you will greatly improve your likelihood of obtaining the EB-5 Visa.

Our attorneys have helped clients from all over the world qualify for a variety of U.S. visas. We are up to date on the ever-changing guidelines and requirements of the EB-5 Visa and can assist you in preparing and submitting the necessary forms and documentation. To learn more, call (305) 921-0976 or email me directly at [email protected].