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EB-5 Law & Related U.S. Law


FAQs on EB-5 law and related immigration law

[Q] Can you briefly explain what a limited partnership entity which is used in most Regional Center EB-5 projects?

Sure. A limited partnership, used by most Regional Center EB-5 project as a New Commercial Enterprise, is a business organization with one or more general partners, who manage the business and assume legal debts and obligations, and one or more limited partners, who are liable only to the extent of their investments. Limited partners also enjoy rights to the partnership's cash flow, but are not liable for company obligations.

[Q] Does EB-5 law require that investor have certain business or managerial work experience or educational level?

No, unlike the Canadian Investor Immigrant Program, the EB-5 investor is not required to have any prior business experience. Likewise, the investor is not required to demonstrate any minimum level of education. The only requirement for the investor is that he or she has the required net worth and capital and prove that the funds are legal, through proper documentation.

[Q] How many IVs are available for EB-5 and then out of this number, how many IVs are available for Regional Center cases?

The EB-5 program allots 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least ten (10) full-time jobs for U.S. workers. Three thousand (3,000) of these immigrant visas are set-aside for aliens who invest through regional centers. But it should also be noted that additional 3,000 of these immigrant visas are set aside for aliens who invest in TEA area.

[Q] Can investor travel freely after obtaining CPR status?

Yes, but all CPRs or LPRs are subject to certain parameters of being away from the U.S. for a prolonged period of time. Therefore, you should discuss with your U.S. immigration attorney in detail your need to travel outside the U.S. after you acquire CPR status.

[Q] Can my friend and I each invest the requisite amount into a new commercial entity and get green cards?

I don't know if it's such a good idea for friends to go into a business together, but even if each of you invest the required amount, each of you also must create the requisite jobs -- meaning each of you must create 10 full-time jobs. As long as you can do that, both of you can process EB-5 cases.

[Q] When must the new positions be created?

Legally speaking, the regs say the requisite employment must be created within the two-year period immediately following the investor acquiring conditional permanent resident (CPR) status.

[Q] Can the required 10 full-time positions filled by me or my family members?

No, but your relative or friends can fill the positions, as long as the positions are bona-fide positions, and they really will be working.

[Q] Practically speaking, what is meant by the "new commercial enterprise" investment into which that is required for EB-5 case?

"New" means any for-profit entity established after November 29, 1990. For practical purposes "new commercial enterprise" can take any one of four forms: 1) the creation of new business; 2) the purchase of an existing business, which is reorganized to form a new enterprise (you don't want to try this!); 3) the expansion of an existing business; or 4) the saving of a failing business.

[Q] Do you have to have the entire amount of the requisite fund invested when you apply for I-526, IV or I-485?

Legally, you can show that you have invested or be in the process of investing, but in the latter case, you have to prove availability of the funds and an actual commitment of the required fund. Therefore, it is a lot more difficult route that you should avoid in all cases.

[HOT] [Q] Does construction-related jobs for a real estate development or renovation project count for EB-5 case?

Although both statutes and regulations are silent on this point, the AAO has held, however, that construction jobs do not qualify for direct job creation, but USCIS has stated that it is willing to allow the indirect and induced job creation from construction jobs in EB-5 regional center cases, but of course, not in direct, individual EB-5 case.

What are the pros and cons of EB-5 Regional Center case vs. E-2 NIV case?

The advantages of Regional Center EB-5 (the "RC EB-5) case over E-2 visa are:

1. Since E-2 is a nonimmigrant visa/status, obtaining E-2 does not lessen the need to obtain permanent resident status.

2. With RC EB-5 case, you can reside anywhere in the U.S., whereas with E-2 visa, you have to reside near the location of your E-2 business.

3. With E-2 dependent children, once they become 21 years old, they automatically fall out of E-2 status. This means they have to, on their own, apply for other NIV status -- usually F-1 student status. With RC EB-5 case, as long as the I-526 petition was submitted prior to their reaching 21 years of age, the dependent children's ability to obtain LPR status will not be adversely affected.

[Q] I set up a business and created 9 new, full-time positions. Can I hire my spouse as the 10th employee?

No, under the EB-5 law, investor and family members cannot be included in the 10 full-time jobs to be created. Also, only CPR, LPR or USC workers qualify, meaning someone who is on F-1 visa cannot be included in the 10 new positions.

[Q] What is meant by "EB-5 law"?

The "EB-5 law" is a term of convenience and has a broad meaning. It refers to the law governing EB-5 under the U.S. immigration law system. This means appropriate immigration statutes must be examined, then immigration regulations promulgated pursuant to these statutes, then agency rules, Department of State or consular regulations, as well as USCIS guidances.

[Q] What type of EB-5 project permits $500,000 USD investment rather than $1 Million USD?

Under the EB-5 law, the EB-5 project has to be either Targeted Employment Area or Rural Area, to permit only $500,000 USD investment. Definitions of these terms are as follows:

Rural area

[Q] If I apply as the principal investor applicant, who can obtain conditional and permanent green cards with me?

Under the EB-5 law, the principal applicant's spouse and the children who were under 21 years of age at the time I-526 immigrant petition was received by USCIS office can obtain CPR and LPR status.

It should be noted that even in case of the principal applicant's death or divorce, the dependents can obtain permanent resident status assuming all conditions, such as job-creation, are met.