[Q] Can I form a "new" commercial enterprise by creating a new corporation to purchase an old, existing biz?
[Q] Potential EB-5 investor client is going to establish a new (2010) corporation. His new corporation plans to purchase a nursing home, which has been in business since the 1970s. Based upon my reading of the relevant case law (Matter of Soffici), it is the age of the nursing home operation in question that is controlling, and not the fact that this new corporation was formed in 2010. It appears that USCIS could argue that this will not be a "new" commercial enterprise because the nursing home was in operation prior to 1990.
We believe that USCIS will rule that this is not the "new" commercial enterprise. We believe there was AAO case law on this. Also, common sense would dictate this conclusion. Therefore, unless there is a requisite "expansion" or "restructuring", no "new" commercial enterprise has been established. Basically, under the EB-5 law, "restructuring" is a very hazy concept which USCIS has not bothered to clarify; therefore, it's best to avoid any "restructured" EB-5 project. Also, when it comes to proving "expansion", not that easy in practice.
Even if the above structure qualifies as a "new" commercial enterprise, as readers of the www.eb-5center.com site knows, additional jobs must be created in addition to any existing jobs.