Law Office of Eli M. Kantor
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Investor Visa

Law Office of Eli M. Kantor

Overview
EB-5 Visa

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise.

There are three basic programs: the Regional Center Pilot Program, the $1,000,000 investment and the $500,000 investment in a targeted area, which are described below. The key difference between them is that the Regional Center is a totally passive investment where the investor does not hire any employees or run the business, while with the $1,000,000 and the $500,000 targeted investment, the investor must hire 10 employees and actively manage their investment.

Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving an USCIS-designated “Regional Center.”

A Regional Center:
  • Is an entity, organization or agency that has been approved as such by the Service;
  • Focuses on a specific geographic area within the United States; and
  • Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
“Alien Investors” must:
Demonstrate that a “qualified investment” (see below) is being made in a new commercial enterprise located within an approved Regional Center; and show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.
Eligibility
Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested − or are actively in the process of investing − the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.

In general, “eligible individuals” include those

1.Who establish a new commercial enterprise by:
  • Creating an original business;
  • Purchasing an existing business and simultaneously, or subsequently, restructuring or reorganizing the business such that a new commercial enterprise results; or
  • Expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and
2.Who have invested − or who are actively in the process of investing − in a new commercial enterprise:
  • At least $1,000,000, or
  • At least $500,000 where the investment is being made in a “targeted employment area,” which is an area that has experienced unemployment of at least 150 percent of the national average rate or a rural area as designated by OMB; and
3.Whose engagement in a new commercial enterprise will benefit the United States economy, and

  • Create full-time employment for not fewer than 10 qualified individuals; or
  • Maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a “troubled business,” which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.
How do I seek status as an Immigrant Investor?
In order to seek status as an immigrant investor, you must file USCIS Form I-526, Immigrant Petition by Alien Entrepreneur. The Form I-526 must be filed with supporting documentation which clearly demonstrates that the individual’s investment meets all requirements, such as:
  • Establishing a new commercial enterprise,
  • Investing the requisite capital amount,
  • Proving the investment comes from a lawful source of funds,
  • Creating the requisite number of jobs,
  • Demonstrating that the investor is actively participating in the business; and, where applicable,
  • Creating employment within a targeted employment area.

How do I obtain status as a Conditional Resident?
Once the Form I-526 is approved, immigrant investors may obtain status as a conditional resident by filing Form I-485, Application to Register Permanent Residence or Adjust Status, if residing within the United States.


In order to become a lawful permanent resident, eligible investors must file a Form I-829, Petition by Entrepreneur to Remove Conditions. Form I-829 must be filed within 90 days before the second anniversary of an Alien Investor’s admission to the Untied States as a conditional resident.

E-1 Treaty Trader

The E-1 classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the U.S. solely to engage in trade of a substantial nature principally between the United States and the alien’s country of nationality. The trade involved must be international exchange (successfully negotiated contracts binding on all parties) of items of trade between the U.S. and a treaty country. Title to the trade item must pass from one treaty party to the other.

If the alien is inside the U.S., the I-129 is used to apply for a change of status, extension of stay, or change of employment. This classification does not require a petition for employment if the alien is outside of the U.S. If outside of the U.S., the alien applies for an E-1 visa on his or her own behalf directly to a U.S. consular office abroad.

Application Document Requirements


The application must be filed with the appropriate fee payment, and evidence that:

  • The applicant is a national of a country with whom the U.S. has the requisite treaty or agreement;
  • The activity constitutes trade as defined at 214.2(e)(9);
  • The trade is of a substantial nature, i.e., an amount of trade sufficient to ensure a continuous flow of trade items between the U.S. and the treaty country;
  • The trade conducted by the alien is principally trade between the United States and the treaty country of which the alien is a national. Trade is deemed to be principally between the U.S. and treaty country when over 50% of the volume of international trade conducted by the alien treaty trader is between the U.S. and treaty country of which the alien is a national;
  • If the applicant is not the principal trader, that the alien is employed in a supervisory or executive capacity, or possesses special qualifications that make the alien’s services essential to the successful and efficient operation of the enterprise.
  • The applicant intends to depart the U.S. upon the expiration of E-1 status. (However, an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.)
  • The employee has the same nationality as the principal alien employer.
  • The alien employer is an enterprise or organization at least 50% owned by persons having the nationality of the treaty country.
E-2 Treaty Investor

The E-2 classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the United States solely to direct and develop the operations of an enterprise in which he or she has invested, or is actively involved in the process of investing, a substantial amount of capital, normally at least $150,000, from overseas.
This is a very popular visa, since you don't have to commit $1,000,000 or $500,000. Rather with as little as $150,000, you can obtain an E-2 Visa. Further, it is much faster than the million dollar investor visa. Usually, it can be processed in as little as 2 to 3 months. Lastly, it is your money, and you control the investment, unlike a regional center investment.

If the alien is inside the U.S., the I-129 should be used to apply for a change of status, extension of stay, or change of employment. This category does not require a petition for employment if the alien is outside of the U.S. In that case, the alien applies for this category on his or her own behalf directly to a U.S. consular office abroad.

The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.

Application Document Requirements

The application must be filed with the appropriate fee payment, and evidence that:
  • The investor is a national of a country with whom the U.S. has the requisite treaty or agreement;
  • The alien (or in the case of an employee of a treaty investor who seeks classification as an E-2, the owner of the treaty enterprise) will direct or develop the enterprise. The alien must demonstrate that he controls the enterprise by showing ownership of at least 50% of the enterprise, by possessing operational control through a managerial position or other corporate device or by other means;
  • The investor has invested in or is actively in the process of investing in the enterprise;
  • The investment is substantial, i.e., sufficient to ensure the investor’s financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the investor will successfully direct and develop the enterprise;
  • The investment enterprise is not a marginal enterprise;
  • If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify.
  • That the applicant intends to depart the U.S. upon the expiration of E-2 status.