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Keshab Raj Seadie, Esq. special to N24:
An EB-5 Visa is a United States Visa for Immigrant Investors that was created by the Immigration Act of 1990. The EB-5 visa permits a foreign national to obtain permanent residency in the United States. Aside from marrying a U.S. Citizen, an EB-5 Visa is the fastest way to establish Permanent Residency in the United States. Every year, 10,000 visas are granted towards EB-5 Visa with 3,000 set apart for Targeted Employment Area (TEA). The EB-5 visa also enables the spouse of the visa holder and the unmarried children under the age of 21 to obtain permanent residency in the United States. Over 90% of all the EB-5 investors in the United States do not start their own business. They usually invest $500,000 in one of over 200 Regional Centers. About 10,000 immigrant visas per year are available to qualified individuals seeking lawful permanent residence throught investments.
In order to qualify for an EB-5 Visa, an individual must invest $1,000,000.00, creating at least ten (10) full time jobs for U.S. workers or at least $500,000.00 in a “Targeted Employment Area” which is also known as the high unemployment area. The individual must also be able to create or save (10) full time jobs for U.S. workers in the United States for at least two (2) years. The applicant must project that the funds used as investment for the EB-5 petition were earned in a lawful manner. The applicant must prove that all the investments were earned via lawful business, salary, investments, property sales, inheritance, gift, loan, or other lawful revenues. The foreign national must establish a lawful business entity under the laws of the state jurisdiction to where the physical entity is located in the U.S and prove that he or she is actively partaking in the business.
For those applying for an EB-5 Visa in the Regional Center under the Pilot Program, the requirements for EB-5 Visa are same as in the standard EB-5 investor program. However, under the Pilot Program, the investment of $500,000 is made towards the “Regional Center” to advance the economic growth in the United States. All investments made through the Regional Centers aid towards a more expansive concept of job creation in both “indirect” and “direct” jobs.
For U.S. Citizenship & Immigration Services defines Regional Center as an public or private economic entity which is involved in the advancement of the economic growth, improvement in the regional productivity, creating more jobs and increasing the domestic capital investment. In order to be approved as a “regional center” from USCIS, the organizers must submit a tender that is supported by economically or statistically valid forecasting tools illustrating (a) the grographic region in the U.S. where the region center will focus and must explain how it will advance the economic growth in that region; (b) detailed explanation as to how jobs will be created directly or indirectly through capital investments made in the regional center; (c) the amount and source of capital being invested towards the regional center and promotional efforts planned for the business project; (d) demonstrate how the business plan will have a positive effect on the regional economy or national economy.
Overall, the investor must be able to prove that the investment is made towards a new commercial enterprise located within an approved Regional Center and provide practical strategy to how 10 or more jobs will be created directly or indirectly by the new commercial enterprise through revenues generated from increased exports, regional productivity, job creation or increased domestic capital investment resulting from the pilot program.
The foreign national must gather all supporting documents for the EB5 Investors petition prior to submission of the case. Such documents may include (a) tax returns for the recent five years, bank account records, proof of ownership of any business, financial statements for each business along with business licenses, (b) proof of U.S. entity establishment such as articles of incorporation, certificate of merger or consolidation, partnership agreement, joint venture agreement, business license, stock purchase agreements, investment agreements, certified financial reports, etc. (c) Proof of investments or process of investment that is needed for a business such as copies of recent bank statements, evidence of assets that have been purchased for use in the U.S. enterprise, mortgages or loans, promissory notes, security agreement, or any other suitable evidence that the assets are securely in the applicant’s possession. (d) Proof of creating or securing ten full-time positions in the United States for U.S. workers or foreign nationals permitted to work in the U.S. under law. However, these jobs cannot be filled by the applicant or any of the dependents themselves. The individual must provide Form I-9, copies of tax returns or other supporting documents and (e) prove that the applicant will be involved with the management of the U.S. enterprise by providing a statement of job title and description, and proof that the applicant holds a position on the board of directors.
Once all the supporting documents are put together, the applicant must then execute the USCIS Form I-526, Petition for Alien Entrepreneur and submit all the supporting documents to the appropriate USCIS Service Center that has jurisdiction over the physical location of the established U.S. entity. If the applicant is currently in the United States, it is not advised to submit the Form I-485, Application to Adjust Status to Permanent Resident concurrent with the Form I-526. The Applicant will only be eligible for Permanent Residence and Employment Authorization after the Form I-526 is approved.
Upon the approval of the Application, the applicant must then attend the visa interview at the U.S. Consulate abroad to confirm that both the applicant and the dependents go through a police, medical, security and immigration history background check prior to being approved for conditional permanent residence. Once the visa interview is cleared, the applicant and the dependents have six months to enter to the U.S. as a lawful permanent resident. However, if the applicant is in the United States, he or she may apply for Form I-485, Application for Adjustment of Status to Permanent Residence along with the supporting documents and submit to the designated USCIS service center. The current USCIS processing time for adjustment of status is eight (8) months to a year depending on the complexity of the case.
USCIS will grant the applicant and the dependents permanent residence status valid for two years. Upon the two years completion, the applicant and the dependents will be required to file a Form I-829, Position by Entrepreneur to Remove Conditions with the appropriate USCIS Service Center to remove conditional limitations on their Permanent Residence Status. USCIS takes approximately seven (7) months to process Form I-829, Petition by Entrepreneur to Remove Conditions. Once the conditions are removed, the Green Card will be valid for the next ten (10) years.
After completing five (5) years of Permanent Residence in the United States, the applicant and the dependents may submit Form N-400, Application for Naturalization to become U.S. Citizens. In order to qualify for U.S. Citizenship, the applicant must have maintained the Permanent Residence requirements. Upon approval, the applicant will appear for an interview followed by an Oath Ceremony to be sworn as a U.S. Citizen. USCIS approximately takes about eight (8) months to process a Form N-400, Application for Naturalization.
Filing an EB-5 can be very complicated and sometimes a guidance of an attorney can really aid in the approval on such cases especially when it concerns on proving the investments for the U.S. entity the establishment of ten (10) new or saved jobs. Keshab Raj Seadie, Esq., is a prominent immigration attorney based in New York City who can be reached at (212) 571 – 6002 or keshab@greencardmaker.com. Mr. Seadie has been practicing immigration and nationality law throughout the United States for more than 12 years and his firm has handled tens of thousands of immigration cases successfully.

Published Date: Tuesday, January 22nd, 2013 | 01:13 PM

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