Congress created the EB-5 immigrant investor visa category in the hopes of attracting foreign capital to the US and creating jobs for American workers in the process.

There are three basic requirements for an EB-5 visa

·             First, the alien must establish a business or invest in an existing business that was created or restructured after November 19, 1990

·             Second, the alien must have invested $1 million (only $500,000 when investing in a USCIS designated regional center) in the business

·             Third, the business must create full-time employment for at least 10 US workers

The basic EB5 Visa investment amount is $1 million. The required investment is $500,000 for a business established in a "targeted employment area." Targeted employment areas include

1.                          rural areas, defined as any area other than one within a metropolitan statistical area or within the boundary of a city or town with a population of 20,000 or more; and

2.                          areas having an unemployment rate that is at least 150% of the national average.

EB-5 Visa Job Creation

The EB-5 Visa investment must create at least 10 full-time jobs for US citizens. Full-time employees are defined working at least thirty-five hours per week. This includes conditional residents, temporary residents, asylees, refugees, and recipients of suspension of deportation, but does not include nonimmigrants.

Conditional Permanent Residence

When the immigrant investor application is submitted to the INS, it must include the following

·             Evidence to show that a new commercial enterprise has been established, such as articles of incorporation, business license, or evidence of the transfer of the required amount of capital when purchasing an existing business.

·             Evidence that the proper amount of capital has been placed at risk, such as bank statements showing the deposit of funds into the business's account, evidence of equipment purchased for use in the business; evidence of property transferred to the business, and evidence of money transferred to the business in exchange for shares of stock. This stock cannot include terms requiring the business to redeem the stock at the holder's request.

·             Evidence demonstrating that the capital invested was lawfully gained, such as foreign business registrations, tax returns, or certified copies of criminal or civil judgments, where appropriate.

·             Evidence that the investment has created at least ten full-time jobs, such as tax records, Forms I-9, or if employees have not yet been hired, a detailed business plan demonstrating that the nature of the business will require the hiring of ten employees within two years. If the business is a troubled business, the applicant must submit evidence that the currently existing number of employees will be maintained for at least two years.

            Evidence that the investor will be engaged in the management of the enterprise, such as evidence that the applicant is a corporate officer or member of the board of directors. If the business is a limited partnership, the applicant will be considered to have a management position only if the partnership agreement provides that the applicant will have the rights, powers and duties normally granted to limited partners under the Uniform Limited Partnership Act.

If the application is granted, the alien is given conditional permanent residence and after two years is eligible to file for removal of the conditions. An alien entrepreneur will have met this requirement if he or she has "substantially met" the capital investment requirement and has continuously maintained this investment during the conditional residence period. The entrepreneur's residence may be terminated at the end of the two-year period or earlier if it is found that the business was not established, or was established solely to evade immigration laws or that the requirements were otherwise violated