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The Entrepreneur Permanent Visa: EB-5 Investor

An Entrepreneur Permanent Visa (Green Card) refers to the 5th Preference Category under employment-based immigrant visas. Any foreign national, regardless of nationality, who has the interest and capital to invest a significant amount of money into a new U.S. enterprise (for-profit), is eligible. It is a very complex and “document-heavy” visa, but can provide a good option to obtain permanent residence in the U.S., especially for those with no family in the U.S. who do not wish to be employees of U.S. companies.

To be eligible, the following requirements must be met:

• Person must invest in a new commercial enterprise. Commercial enterprise includes a broad spectrum of business relationships including limited partnerships, holding companies and their wholly owned subsidiaries, provided they are all for-profit business operations.

– Investor does not have to “establish” the commercial enterprise. He satisfies the statute if he “invests” in a new commercial enterprise. A new commercial enterprise includes a company formed after Nov. 29, 1990, OR a company formed before Nov. 29, 1990, if it has been restructured or reorganized so that a new commercial enterprise results or it has been expanded so that a substantial change in the net worth or number of employees has occurred.

• What Qualifies as Investment: Cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the entrepreneur, provided that the entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise are not used to secure any of the indebtedness.

• Timing of Investment: USCIS position that investment (all of it) must be at risk at time of FILING.

• Source of Funds: Must prove source of funds and come from legitimate sources. The Applicant must establish that the investment comes from accounts under his name.

• Employment Creation: Must create new full-time employment (35 hrs per week) for at least 10 qualifying USC or immigrant workers within two-year CR period. Independent contractors are not considered employees.

• Benefiting U.S. Economy: This seems logical from the investment amount and job creation but USCIS takes the position it is a separate requirement, meaning beyond 10 U.S. jobs created, what other benefit to U.S. economy? The issue of some regulations restricting foreign investments in aviation, banking, shipping, communications, land use, energy resources, and government contracting may come into play here.

• Petitioner Engaged in Business on day-to-day basis or through policy formation

A Pilot Program was created for immigrant investors and entrepreneurs permitting the investment in a U.S. enterprise to be done via a regional center where the U.S. enterprise is located. The program has now been extended through 2012.

The Investor must meet all the other criteria above except that the job creation component does not need to be 10 direct full-time employees, but indirect or direct employment can suffice. This can include, for instance, independent contractors.

In addition, the threshold investment amount is reduced to a $500,000 capital contribution if the designated regional center allocates portions of the capital in the form of business loans to small business within the targeted area.

If you wish to invest in Colorado or anywhere in the United States and have questions about the Entrepreneur visa, contact Denver immigration attorney Catherine Brown to schedule a consultation. Contact us online or call us at 303-322-2117.

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Law Office of Catherine Brown
111 N. Public Rd.
Lafayette CO 80026