EB5 – IMMIGRATION PROCEDURE
- Investor establishes/acquires
and funds enterprise.
$500,00+ or $1,000,000+
- Investor creates detailed business plan
showing at least 10 full-time employees.
- REGIONAL CENTER
- Investor selects Regional Center (RC),
does full due diligence for business,
tax and risk issues, with investor’s
own counsel advisor.
- Investor signs subscription agreement
and remits payment for the investment,
RC fees and Legal fees.
- Investor provides answers to the Suitability Questionnaire
and provides legible copies of
certain identification documents.
- When the investor is determined to be suitable,
a set of confidential offering documents are issued to the investor
and the investor has to sign them
once he/she decides to go forward
- Immigration Attorney prepares documents for
filing with the USCIS.
- After documents are signed by investor,
Immigration Attorney files application
( Form I-526 ) with the USCIS
- Immigration Attorney Submits
Immigrant Petition ( I-526 )
- Within 90 days prior to the end of the second anniversary of the date
that the investor’s conditional permanent residence status was obtained,
AIG will provide them and their attorney with impact study results
containing actual job creation numbers
- The investor and their attorney must file
for I-829 with USCIS before their second anniversary of the date
the investor obtained the Conditional Permanent Residence status
- Immigration Attorney files Application I-829 to
remove conditions on U.S. residence
21 – 24 months after U.S.
- Conditions on Permanent Residence
- U.S. Citizenship Optional ( 60 months after U.S.
first admission as a Conditional Residnet).
Acquiring lawful permanent residence (“Green Card”) through the EB-5 category is a three step self-petitioning process. First the successful applicant must obtain approval of his or her Form I-526 Petition for an Alien Entrepreneur. Second, he or she must either file an I-485 application to adjust status to lawful permanent resident, or apply for an immigrant visa at a U.S. consulate or embassy outside of the United States. The EB-5 applicant (and he or her derivative family members) are granted conditional permanent residence for a two year period upon the approval of the I-485 application or upon entry into the United States with an EB-5 immigrant visa. Third, a a Form I-829 Petition by an Entrepreneur to Remove Conditions must be filed 90 days prior to the two year anniversary of the granting of the EB-5 applicant’s conditional Green Card. If this petition is approved by CIS then the EB-5 applicant will be issued a new Green Card without any further conditions attached to it, and will be allowed to permanently live and work in the United States.
|TYPE OF INVESTMENT||SUPPORTING DOCUMENTS ( EVIDENCE )|
|New Commercial Enterprise||Evidence that you have established a “for profit” new commercial enterprise.Evidence, if applicable, that your business has been established in a targeted employment area.Evidence that you have invested or are in the process of investing the amount required ($1,000,000 or $500,000).Evidence that the investment funds were obtained through lawful means. Evidence that the capital used was legally acquired may be demonstrated by the following:
Evidence that the new commercial enterprise will create at least 10 full-time positions – not including yourself, your spouse, sons or daughters, or any temporary/nonimmigrant workers. You will need to submit a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) employees will result, including approximate dates, within the next two-years, and when each employee will be hired. Evidence that you will be actively involved in the management of the new commercial enterprise, (day-to-day or through policy).
|Troubled Business||The same evidence which is mentioned above for investors in a new commercial enterprise except instead of the evidence that the business will create at least 10 new jobs, you must submit evidence that:The number of existing jobs is being or will be maintained at no less than the pre-investment level for a period of at least two years. Photocopies of tax records, Forms I-9, or other relevant documents for the qualifying employees and a comprehensive business plan shall be submitted in support of the petition.
* Note: To be approvable at least 10 jobs must be maintained.
|Regional Center Program||Evidence that you have invested in a designated Regional Center according to the approved regional center business plan. A letter from legacy INS or USCIS should be attached with Form I-526 designating the Regional Center. Your investment must be in a business enterprise within the geographical area specified in this letter.Evidence, if applicable, that your business has been established in a targeted employment area.Evidence that you have invested or are in the process of investing the amount required ($1,000,000 or $500,000).Evidence that the investment funds were obtained through lawful means. Evidence that your investment in the Regional Center will create at least 10 direct or indirect full-time.|
Your spouse and unmarried children under the age of 21 may be admitted to the U.S. with you on a two-year conditional period. If your I-829 petition to remove conditions is approved, then the conditions will be removed from your spouse and children’s Green Card status. As a lawful permanent resident (Green Card holder) your spouse and children will be authorized to work or attend school in the U.S.
Purchases or sales of securities that qualify for an exemption from registration by issuers seeking investors pursuing a visa under the EB-5 Program is provided by Regulation S under the Securities Act
A fundamental tenet of the federal securities laws is that all purchases or sales of securities must either be registered under the Securities Act of 1933 (the “Securities Act”) or qualify for an exemption from registration. The primary exemption relied upon by issuers seeking investors pursuing a visa under the EB-5 Program is provided by Regulation S under the Securities Act.
Regulation S generally provides that the registration requirements of the Securities Act do not apply to offers and sales of securities if both the offer and sale occur outside the United States. Additionally, Regulation S requires that the issuer not offer or sell securities to U.S. citizens or residents even if those persons purchase the securities abroad. Determining whether an offer or sale occurs outside the United State is a rather simple test– namely, whether the investor is physically located outside of the U.S. both at the time he or she is first solicited to purchase the securities and at the time he or she executes the subscription agreement or other contract to purchase those securities. For example, if the investor is a student attending school in the U.S. on a F-1 Visa, the student may not be approached to make an investment while he or she is within the U.S. To do so would fail the above-described prohibition on offers within the U.S. Further, soliciting a student’s parents offshore who, then in turn, send the subscription material to their child for signature while he or she is in the U.S. also will not qualify because the offer (and sale to the extent the subscription agreement is also signed) to the actual investing person (the student) occurs when the student is physically located within the U.S. in contravention of Regulation S. It should be noted that if a parent signs the investment documents on behalf of his or her child while that child is physically located in the U.S., the parent would be doing so as the child’s agent (i.e. attorney-in-fact) and the offer should be considered made to the student while in the U.S. In other words, the longstanding securities law tenant that you can’t do indirectly what you can’t do directly comes into play.
What has been a more difficult question for issuers is whether a natural person (such as a student holding an F-1 Visa to study in the U.S.) is a U.S. resident for Regulation S purposes. According to the Securities and Exchange Commission (the “SEC”), a natural person is a resident of the country in which he or she permanently (and not temporarily) resides. For example, in a no action letter issued by the SEC in the context of an offshore private equity fund desiring to comply with the Investment Company Act of 1940 when selling its limited partnership interests to U.S. citizens residing abroad, the SEC stated that “In our view, a distinction should be made . . . between persons permanently residing abroad, and U.S. residents who are temporality abroad. U.S. citizens and other persons permanently residing abroad who purchase securities may be deemed to have chosen foreign markets, and the laws and regulations applicable to those markets. U.S. residents who are temporarily abroad, however, should be treated differently because they continue to maintain a permanent presence in the United States that warrants full protection under the federal securities laws.”
Whether a person temporarily or permanently resides in the U.S. is a factual question that depends on the circumstances surrounding that person’s presence in the U.S. Fortunately, the current immigration laws are helpful in making this determination. Under applicable immigration laws, a non-resident alien for immigration purposes includes individuals that are not lawful permanent residents of the US and who have been admitted to the U.S. for a temporary stay that will end when the purpose of that stay has been met. Individuals in non-immigrant visa status have visas which begin with letters: B, F, J, TN, H, L, O, etc. On the other hand, an individual that has been granted a green card to live and work in the U.S. indefinitely is considered a lawful permanent resident under the immigration laws.
Based on the forgoing, issuers seeking invest dollars from students and other individuals residing temporarily in the U.S. should be able to rely on the exemption provided by Regulation S as long as potential investors are both offered and sold the applicable securities while they are physically located outside the U.S.