A basic guide to investing in the US under US Immigration Laws:

Immigration and relocation can be expensive processes and require detailed pre-planning to ensure that all of your financial, tax, and immigration goals are accomplished.

Follow these THREE easy steps to determine which visa may be right for you. 

Step 1:

Step 1:

Determine your Immigration goals:

There are four options available to discuss with prospective investors under U.S. immigration laws: NOTE: E-2 Visas are only available to US treaty countries. Click here for the complete list of US Treaty countries from USCIS. Countries such as China, Russia, India, Brazil and Venezuela are not treaty countries and therefore nationals of those countries do not qualify for E2 visas.

1: L-1 

2: E-2 

3: Individual EB-5, or

4: Regional Center EB-5.

The L-1 and E-2 options, are nonimmigrant visa options, and enable the investor to get to the U.S. quicker than the EB-5 options, which are permanent residence GREEN CARD options for the spouse and children under 21.

The L-1 and E-2 options do allow for permanent residence, only if the investor maintains business operations outside of the U.S. and only after U.S. business operations have been ongoing for at least one year.

The following is a checklist of questions to guide you in discussing with your immigration counsel the best option to meet your needs:

Do you want to start a new business in the U.S.?
Yes – Individual EB-5 or L-1 (E-2)
No – RC EB-5

Do you intend to keep your overseas business in operation?
Yes – L-1 (E-2)
No – Individual or RC EB-5

Do you want to buy an existing business?
Yes – Individual EB-5 or L-1 (E-2)
No – RC EB-5

Do you expect your U.S. business will have at least 10 employees at the time of filing?
Yes – Individual EB-5
No – L-1 (E-2) or RC EB-5

Do you want to invest at least $500,000 in the U.S.?
Yes – Individual or RC EB-5
No – L-1 (E-2)

Is your main goal to get a green card or to do business in the U.S.?
Green Card – RC EB-5
Do business in the U.S. – L-1 (E-2) or individual EB-5

Is finding the quickest way to get to the U.S. the top priority?
Yes – L-1 (E-2)
No – individual or RC EB-5

Is being able to live in the U.S. your top priority?
Yes – RC EB-5
No – L-1 (E-2) or individual EB-5

 Further things to consider

L1, E2 Or EB-5 Visa?

Many families wishing to live in the USA consider the relative advantages and disadvantages of the L1 or E2 and EB-5 visas.

In some cases the choice comes down to the funds they have available or wish to utilize. The EB-5 requires an investment of $500,000 in a program operated by a Regional Center authorized by the U.S. government. The L1 or E2 visa is likely to cost much less, indeed many families have paid in the region of $150,000 to $200,000 to purchase a suitable business qualifying for the E2.

However, a key implication that is not always realized is that the L1 and E2 visas do not provide the family with permanent residence. A senior American Consular official is reported as saying –

‘I would also like to point out that a non immigrant (L1 or E2) visa is not a good option for someone who intends to reside permanently in the United States. If the investor retires or sells their investment, his or her visa status lapses and he or she must leave the US. Only single dependent children under 21 are eligible for visas to accompany their investor parent, and when these children turn 21 they lose their status as a dependent and their visa. The more secure option for those that have the necessary capital is the permanent resident [green card EB5] investor visa. In this case the required investment is one million dollars, or under certain circumstances $500,000.’ John Caulfield, Consul General, US Embassy London.

There have been a number of well reported cases of families and/or their children having to leave the USA due to the L1 or E2 visa failing to be renewed. This can still happen even after the family may have lived in America for many years when perhaps their children know no other way of life.

The New York Times recently reported an unfortunately typical scenario where a family who had been operating a business on an E2 visa for nine years had the renewal of their E2 visa refused. This left them no option other than to return back to the country that had left nearly a decade earlier.

Of course, many do not have the $500,000 required to make the investment for the EB-5 visa. However, for those that do, the fact that it provides permanent residence status is an enormous benefit in many ways.

· Full permanent residency rights apply.

· In certain states you pay lower property tax costs and your children pay lower tuition rates at many Colleges and Universities.

· Children do not have to leave the USA once they turn 21.

Depending upon your circumstances the EB-5 could be seen as an inexpensive option. The one visa covers the entire family, applicant, spouse and all their children under 21. Select the right regional center and not only should you get your $500,000 back at a point in the not too distant future, you may also get a return on your investment. The same cannot be said with confidence about the L1 or E2 visa, particularly in the current economic climate.

Comparison Chart for L-1, E-2 and EB-5 Visas

Step 2:

Step 2:

Choose your Visa option:

L-1A Intracompany Transferee Executive or Manager

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.

 Key Features of the L-1 Visa

Be transferred to the U.S. and work legally for a U.S. company that is a branch, subsidiary, affiliate or joint venture partner of a company that already employs you outside of the U.S.

Be quickly issued your visa

Be permitted to travel in and out of the U.S. or remain here continuously until your L-1 status expires

Avail of visas for accompanying relatives

Apply for a Green Card through employment and skip a major step of that process (no Labor Certification requirements)

Qualification Criteria for an L-1 Visa

Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and

Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

E-2 Treaty Investor

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. It is possible to obtain via self-employment, and it comes with an unlimited number of extensions. Also, there are no annual limits on the number of E-2 visas that can be issued to qualified applicants.

Key Features of the E-2 Visa

The treaty investor can work legally in the U.S. for a U.S. business in which a substantial cash investment has been made by the visa holderor other citizens of the country of origin, so long as this country has a trade treaty with the U.S.

The treaty investor may travel in and out of the U.S. or remain here continuously until the visa and status expire.

The treaty investor is restricted to working only for the employer or self-owned business that acted as the E-2 visa sponsor.

The initial E-2 visa may last up to five years, with unlimited possible five-year extensions.

Each time the treaty investor enters the U.S., he or she will be admitted for two years.

Visas are available for an accompanying spouse and minor, unmarried children. However, the children cannot work in the U.S.

A spouse will be permitted to accept employment in the U.S.

 Qualification Criteria for an E-2 Treaty Investor Visa

There are six requirements for getting an E-2 visa:

The applicant must be a citizen of a country that has an investor treaty with the United States.

The applicant must be coming to work in the U.S. for a company that he or she either owns or that is at a minimum 50% owned by other nationals of the country of origin.

The applicant must be either the owner or a key employee (executive or supervisor, or someone with essential skills) of the U.S. business.

The applicant or the company must have made a substantial investment in the U.S. business (there’s no legal minimum, but the applicant or company must be putting capital or assets at risk, be trying to make a profit, and the amount must be substantial relative to the type of business).

The U.S. company must be a bona fide, active, for-profit business, not a mere “marginal” profit-producer. It must be actively engaged in trade or the rendering of services and meet the applicable legal requirements for doing business in its state or region.

The applicant must intend to leave the U.S. when his or her business in the U.S. is completed, although the person is not required to maintain a foreign residence abroad. The applicant will likely be asked to show the U.S. consulate evidence of eventual plans to leave the United States.

EB-5 INVESTOR VISA

The EB-5 Visa Allows You to Live Permanently in the United States

For foreign investors seeking the freedom and flexibility to live and work in the United States, the EB-5 Visa Program provides an excellent opportunity to obtain Green Cards.

Key Features of the EB-5  Visa

A direct route to a Green Card

No day-to-day business management

Permanent residency in the United States for you, your partner and any children under 21 (this is especially helpful when children are planning on attending a US university, allowing them to obtain a Green Card during their studies)

Live, work and retire anywhere in the United States

Become a U.S Citizen after 5 years of being a green card holder

No Quota Backlogs – There are many delays and backlogs for employment and family based green card categories but there is no backlog for the EB-5 Visa Investor category.

No Sponsor Needed – Foreign investors use their own personal funds and do not require sponsorship from either an employer or a family member.

The Different EB-5 Visa Options

There are two main EB-5 programs – the Basic EB-5 Visa Program and the EB-5 Regional Center Pilot Program.

Option 1 – Basic EB-5 Visa Program

This involves a passive investment of at least $1,000,000

In order for an applicant to qualify under the Basic EB-5 Visa program, they must meet the following requirements:

  1. Make an investment in a new commercial enterprise.
  2. Make an investment of at least $1 million into that enterprise.
  3. Lead to the creation of employment for at least 10 full-time U.S. workers.

Direct job creation only

The investment may consist of the contribution of various forms of capital, including cash, equipment, inventory, property, and other tangible equivalents. An investment amount of $1 million is generally the minimum.

Option 2 – EB-5 Regional Center Pilot Program

This involves a passive investment of at least $500,000 made in a ‘Targeted Employment Area’ (TEA) within a Designated Regional Center.

The EB-5 policy management requirement is minimal in that the investor can be a limited partner and still qualify as long as the limited partners have a policy-making role. Thus, for those who are not interested in day-to-day management or running an active business, Regional Center programs offer a more acceptable inactive form of investment.

The investor is not required to live in the place of investment; rather, he or she can live wherever he/she wishes in the United States.

The EB-5 Regional Center program is ideal for the retiree, or parents who’s children wish to study in the UNited States or an inactive investor due in large part to the “indirect employment” feature of this program. The Regional Center Program removes the employee requirement of the Regular program and replaces it with a less restrictive “indirect employment creation,” which allows the investor to qualify by proving a combination of 10 direct and/or indirect employees.

What kinds of people invest in the EB-5?

The majority of EB-5 investors who choose to pursue the EB-5 route are people who wish for their children better opportunities in the United States of America.

For people that can afford to invest $500,000 for at least five years, the EB5 visa is an option worth considering.

The following types of investors are seeking Regional Center or Direct EB-5 cases:

People who have dependent children about to turn 21 years old and want to attend a US university to live and work in the US after graduation.

People who have a difficulty in pursuing L-1 visas. Now, more than ever, L-1 visas are viewed more stringently than before, especially in countries such as China and Russia.

People who cannot afford to wait too long under the current labor certification avenues to green cards.

People who are denied non-immigrant visas on certain grounds.

People who are denied EB-1 cases on RFEs.

People who are shut out of H-1B quotas.

Whose country is not an E-2 treaty country with the U.S.; and cannot pursue E-2 visa.

Doctors who practically have no other ways to immigrate.

People who might not want to pursue Direct, Individual EB-5 case for various reasons.

Retirees.

What are the EB-5 Investment Option Guidelines?

The law requires that the foreign applicant to have invested in or be in the process of investing the necessary capital into an approved EB-5 project.

Amount of capital

The basic EB-5 Visa investment amount is USD$1,000,000. However the required investment is USD$500,000 for an established business in a Targeted Employment Area (TEA) which is defined as an area with an unemployment rate of 150% or more above the U.S. national average or in a rural area (defined as being within the boundary of a city or town with a population of 20,000 or less).

Types of capital

 Investment in the EB-5 Visa program can be made in the form of cash, cash equivalents, equipment, inventory or other tangible property
▪ Capital does not include loans made by the investor to the venture, however the investor may borrow the investment money if it is secured by assets owned by the investor, provided the investor is personally liable for repayment of the loan
▪ The investor may receive a gift of funds, if all applicable taxes required by law have been paid. Source of capital
▪ When the investment is made into the respective project the USCIS is notified. The current guidelines indicate a required investment for a TEA at USD$500,000.


“At risk”

The USCIS requires validation that all capital investments are classified as “at risk” with no guarantees being made by the project to the investor. This is to confirm that the capital will actually be used for the purpose of creating jobs and profit-generating activity. Proof of actual business activity is also required and the use of capital investment for expenses or reserve accounts unrelated to job creation does not constitute “business activity”

Verification of lawful source

▪ Proof that the capital has been invested by the actual investor is required. 
▪ The USCIS also requires that the investor provide documentation that proves the source of their investment funds was obtained legally. 


What are the EB-5 Job Creation Guidelines?

A requirement of the EB-5 visa is that each investment of either USD $1,000,000 or USD $500,000.00 must help to create jobs. If for instance the money is invested into an approved Regional Center then this project must be located in a targeted area (also known as a TEA) and must create or sustain 10 full-time jobs for US citizens, lawful permanent residents or other immigrants legally authorized to be employed in the United States.

An important advantage to investing in a project with Regional Center designation is the “indirect” nature of the job creation, which is less difficult to achieve than the “direct” creation of 10 new jobs. The requirement of creating at least 10 new full-time jobs can be satisfied by showing that as a result of the investment and the activities of the new enterprise at least 10 jobs will be created indirectly in the region through an employment creation multiplier effect. These Jobs do not have to be directly related to the project and can now include certain construction jobs during the construction phases of the project. Jobs can also be counted that were created by the investment and located in the region. Forecasting tools which support the likelihood that the business will result in increased employment may be utilized.

▪ A Full-time position is defined as working a minimum of thirty-five hours per week
▪ Two employees may share a full-time position, however part-time employment will not qualify. 
▪ The jobs must be proven to exist at time of application or there must be proof that the required jobs will be created before the end of the two-year period of Conditional Permanent Residence. 


What are the Conditional Permanent Residence Guidelines for EB-5?

In an effort to disuade fraud, the EB-5 Visa foreign investor, their spouse and any dependent children are subject to a Conditional Permanent Residence status for a two year probationary period. The EB-5 primary applicant is required to file a petition to remove these probationary conditions during the last 90-days of this 2 year term (prior to the second anniversary of the investor’s official admission as a permanent resident). Upon the conclusion of the two-year period, the USCIS will then examine the business investment to determine whether or not the investor has complied with all necessary requirements.
Submission of the foreign investor application to the USCIS is required to include the following:
▪ Verification that a new commercial enterprise has been established.
▪ Verification that the necessary amount of capital has been placed at risk through bank statements validating deposit of funds into the business account, purchase of business equipment, transfer of property or evidence of funds transferred to the business account in exchange for shares of stock
▪ Proof that the capital invested was legally gained
▪ Proof that the foreign investment created the necessary 10 full-time employment positions


Are My Family Members Eligible to Qualify for an EB-5 Visa?

The parameters under which family members of the investor can qualify for the Conditional Permanent Residence or as a Lawful Permanent Resident are as follows:

Spouse
Spouses of the investor are permitted to accompany or follow the investor who has been granted their Conditional Permanent Residence.

Children
▪ Children and/or Step-Children of the investor are permitted to accompany or follow the investor who has been their Conditional Permanent Residence.

▪The US Government considers a ‘child’ as someone who is under the age of 21 and who not married.

Step 3:

Step 3:

Consult with your Immigration Attorney:

Immigration and relocation can be expensive processes and require detailed pre-planning to ensure that all of your financial, tax, and immigration goals are accomplished.

We are able to assist you in virtually every facet of your relocation, from assisting in your pre-immigration financial planning to assisting in setting up your new commercial venture to choosing the right EB5 regional center to getting the most competitive exchange rate for your currency transfers or making informed decisions about schools for your children.

We provide the consultation, advice, education and assistance you’ll require throughout the relocation process. Our team of specialists includes expert EB5 immigration attorneys, relocation wealth management finance specialists, real estate specialists and title, tax and securities attorneys.

This allows us to provide you with the pros and cons of using the EB5 visa program as a route to US immigration.

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