Immigrant Investor Program, EB-5, was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth. On March 15, 2022, the United States enacted the EB-5 Reform and Integrity Act of 2022 (the 2022 Act) as part of a large omnibus budget package of legislation. It provides a 5-year reauthorization of the Regional Center Program with substantial changes, marking an achievement long-awaited by the Regional Center industry. All EB-5 investors must invest in a new commercial enterprise (any enterprise established after Nov. 29, 1990 or a new business). Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
- A sole proprietorship
- Partnership (whether limited or general)
- Holding company
- Joint venture
- Business trust or other entity, which may be publicly or privately owned
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
Note: This definition does not include noncommercial activity such as owning and operating a personal residence.
New commercial enterprise means:
- any enterprise established after Nov. 29, 1990.
- enterprise established on or before Nov. 29, 1990 but
- it is restructured or reorganized in such a way that a new commercial enterprise results, or
- expanded through the investment so that at least a 40-percent increase in the net worth or number of employees occurs.
Job Creation Requirements
Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
- For a new commercial enterprise not located within a regional center, the full-time positions must be created directly by the new commercial enterprise to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.
- For a new commercial enterprise located within a regional center, the full-time positions can be created either directly or indirectly by the new commercial enterprise.
- Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
- Indirect jobs are those jobs held outside of the new commercial enterprise but that are created as a result of the new commercial enterprise.
- In the case of a troubled business, the EB-5 investor may rely on job maintenance. The investor must show that the number of existing employees is being, or will be, maintained at no less than the pre-investment level for a period of at least 2 years.
A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.
Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the regional center program, "full-time employment" also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.
A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions even if, when combined, the positions meet the hourly requirement per week.
Jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as permanent full-time jobs. However, jobs that are expected to last at least 2 years are generally not considered intermittent, temporary, seasonal, or transient in nature.
Capital Investment Requirements
Capital means cash, equipment, inventory, other tangible property, cash equivalents and debt, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars.
Required minimum investments are:
– General: The minimum qualifying investment in the United States is $1.05 million as a direct investment.
– Targeted Employment Area (High Unemployment or Rural Area): the minimum qualifying investment either within a high-unemployment area or rural area in the United States is $800,000.
(Regional Center (Pilot Program) funding projects in TEA’s can accept a minimum of $800,000 from each EB-5 investor).
A targeted employment area (TEA) is an area that, at the time of investment, is:
- A rural area; or
- An area that has experienced high unemployment (defined as at least 150% of the national average unemployment rate).
A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.
A high-unemployment area may be any of the following areas, if that area is where the new commercial enterprise is principally doing business and the area has experienced an average unemployment rate of at least 150% of the national average unemployment rate:
- An MSA;
- A specific county in an MSA;
- A county in which a city or town with a population of 20,000 or more is located; or
- A city or town with a population of 20,000 or more outside of an MSA.
A high-unemployment area may also consist of the census tract or contiguous census tracts in which the new commercial enterprise is principally doing business, which may include any or all directly adjacent census tracts, if the weighted average unemployment for the specified area based on the labor force employment measure for each tract is 150% of the national unemployment average.
An EB-5 regional center is an economic unit, public or private, in the United States that is involved with promoting economic growth. Regional centers are designated by USCIS for participation in the Immigrant Investor Program.
LEGAL UPDATE: On March 15, 2022, the United States enacted the EB-5 Reform and Integrity Act of 2022 (the 2022 Act) as part of a large omnibus budget package of legislation. It provides a 5-year reauthorization of the Regional Center Program with substantial changes, marking an achievement long-awaited by the Regional Center industry. The 2022 Act has major implications for existing and future investors, regional centers, developers, and promoters.
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