You are hereFrequently Asked Questions / EB-5 Law & Related U.S. Law / [HOT] [Q] Can I purchase an existing restaurant that was set up in 1999 and hire enough new employees and go for EB-5 case?

[HOT] [Q] Can I purchase an existing restaurant that was set up in 1999 and hire enough new employees and go for EB-5 case?

[Q] My friend in Los Angeles owns a successful Chinese restaurant that was set up in 1999 with about 10 full-time and 5 part-time employees. He wants me to invest $1 Million USD to expand his restaurant, create new positions and split the profit. I saw the restaurant, and it seemed to be doing well. My question is: Can I go for $1 Million direct, individual EB-5 case based on the facts?

Yes, this issue was answered recently by USCIS in a liaison meeting minutes. See below copied content from this liaison meeting minutes on point. Basically, as long as you create 10 new, full-time positions (in addition and separate from the existing full-time positions), you can go for an EB-5 case. However, creating 10 new, full-time positions for an existing restaurant is easier said than done. And no, you cannot fire all the existing restaurant employees and then hire new employees to replace the existing employees who were let go. That comes close to a fraud. Of course, if there is a bona-fide business reason why the business being purchased did not have any existing full-time positions, then it would be permissible not to have any full-time employees at the time of purchase.

ii. Does Congress' deletion of the establishment requirement in 2003 (which did away with the requirement that the alien entrepreneur personally establish the commercial enterprise) mean an EB-5 investor can purchase an existing business that was created after November 1990 (meaning the commercial enterprise is "new"), as long as job requirements are met, without having to restructure the commercial enterprise? Section 22.4(h) of the Adjudicator's Field Manual seems to suggest this interpretation.

Response: Yes, an alien may demonstrate that a new commercial enterprise has been established by proving that it was established after November 29, 1990. In such cases, the alien does not need to further restructure, reorganize, or expand the business in order to meet the requirements of 8 CFR, 204.6(h).