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[HOT] Basic requirements of attaining CPR & LPR through EB-5 case -- I-526 & I-829

Essentially, the EB-5 law allows qualified immigrants to "invest" the requisite "capital" ($1 MM or $500,000 USD in case of Targeted Employment Area case) of "lawful source" and to "engage" in a "new commercial enterprise" that will create (indirectly or by induced means in case of Regional Center EB-5 case) at least 10 new, full-time jobs.

That's it, really. Sounds very simple, right? However, as most EB-5 practitioners know, the success of meeting the above-described requirements depends largely upon how strictly the arbiter (USCIS) interprets the requirements and adjudicates your EB-5 case.

What sorts of immigrants qualify?

Only one, single individual can apply as Principal Applicant, even though immediate, dependent family members can immigrate along. Note multiple investors can invest in a single new commercial enterprise, i.e., Regional Center EB-5 Project, as long as each invest requisite amount and create 10 full-time jobs each. However, practically speaking, no one is going to get designated as a regional center just to attract one investor for that EB-5 project.

New commercial enterprise (NCE)-- what is it?

NCE refers to a "for-profit" entity, such as Limited Partnership, corporation, etc. To qualify as a “new commercial enterprise,” a petitioner must have invested after November 29, 1990. A NCE can be established (Investor does not have to establish it; a third party who wants to attract Investor's money can do that) by one of three ways: (1) creating an original business; (2) purchasing and restructuring an existing business in a material manner; or (3) expanding, and thereby substantially changing the net worth or number of employees in a business so that there is a 40 percent increase in net worth or in the number of employees. One way to not have to invest in a new commercial enterprise is to invest in a “troubled” business may also qualify an investor for EB-5 classification.

“Investing Requsite Capital"

EB-5 petitioner has to show he invested or is in the process of investing either $1 MM or $500,000 USD where investing in a Targeted Employment Area case. The term “invest” means to contribute his or her capital, not a debt. The capital created by putting up the real property you own as a security qualifies. But using a real property owned by your father as a security and getting a loan to use as capital will not qualify. By the way, the fund should come from the Investor's individual account, not from a legally separate business entity (such as corporation, LLC and partnership) which is in fact owned by the Individual. Most Regional Center EB-5 case is also a Targeted Employment Area (TEA) case; therefore, only $500,000 USD investment is required.

Proving the "lawful source"

EB-5 petitioner has to persuade that the requisite fund (whether $500,000 in case of a TEA EB-5 Project, or $1 Million USD in case of direct, individual EB-5 case) has been earned or received lawfully, and can be traced from an existing bank account or definite source. USCIS is not unreasonable about this requirement. Read link for full details. Because USCIS examiners need to review and verify only the lawful source requirement in I-526 petitions submitted in the same RC EB-5 project, we believe that it should not take long at all for one I-526 petition to be adjudicated. We feel that it should not take more than 3 hours to thoroughly review and adjudicate one Regional Center I-526 case.

“Engaging” in a New Commercial Enterprise

Means playing more than a purely passive role in the new commercial enterprise. The petitioner must either be involved in the day-to-day managerial control of the commercial enterprise or manage it through policy formulation. The degree of involvement by an EB-5 investor in the enterprise may be less than that required to qualify for a nonimmigrant E-2 treaty investor visa. If the petitioner is a corporate officer or board member, or, in the case of a limited partnership, is a limited partner under the provisions of the Uniform Limited Partnership Act (ULPA), he or she satisfies the requirement of engaging in the management of the new commercial enterprise. Therefore, most Regional Center projects, by necessity, involve a new commercial enterprise in the legal form of a Uniform Limited Partnership Act (ULPA) established under the ULPA rules of the particular state.

Benefiting the U.S. Economy

This requirement is met by default in most EB-5 Projects, unless the new commercial enterprise does not benefit the United States in some sense. Showing that the new enterprise provides goods or services to U.S. markets should satisfy this requirement. Therefore, this requirement is really a no requirement in almost all EB-5 cases.

Creating new, full-time positions

Requires positions for at least 10 U.S. citizens, lawful permanent residents or other immigrants lawfully authorized to be employed in the United States. The Investor, his or her spouse and children do not count toward the 10 employee minimum. Nonimmigrants also do not count. The “other immigrants” provision means that conditional residents, temporary residents, asylees, refugees, and recipients of suspension of deportation or cancellation of removal may all be considered employees for EB-5 purposes. Independent contractors are also excluded.

Note that in Regional Center EB-5 Project, the requisite jobs can be created indirectly and induced, rather than directly. Therefore, indirect employment benefit in the local economy is given credit where it can be demonstrated by a reasonable job-calculation methodology.

"Full-time" means employing a qualified employee in a position that requires a minimum of 35 working hours per week. Job-sharing arrangements, where two or more qualifying employees share a full-time position, will also serve as full-time employment if the hourly requirement per week is met. However, job-sharing does not include combinations of part-time positions even if when combined such positions meet the hourly requirement per week. This means you cannot just combine two part-time waitress positions and say you created one full-time position. Note that at I-526 stage, you just have to persuade that the requisite jobs will be created, not already have been created; but of course, at I-829 stage, you have to show that the requisite jobs .

There is an overlap between I-526 and I-829 requirements, and the only additional material requirement for I-829 purposes is to show that the requisite jobs were created at the time of I-829 adjudication (or will be created within a reasonable time period) either directly or indirectly (as well as induced), because it should not be difficult to prove that the investment was maintained.