by Jovi Federici, Legal Assistant
If you are confused and intimidated by the procedures and forms required for immigration to the United States do not worry. You are not alone. Immigration is one of the most complex and formalistic processes in U.S. law. It can take a long time. Mistakes can cause drastic, long-term consequences for applicants. Fortunately, immigration law specialists are available to assist immigrants through the entirety of the immigration process.
There are two broad categories of immigrants who wish to work in the Unites States. Temporary workers are allowed to work in the United States for a limited period of time only. An immigrant may incur severe penalties for overstaying a temporary visa, and may be denied the opportunity of obtaining citizenship later on.
Permanent workers come to the United States to work and stay permanently. In the beginning, permanent workers may be required to abide by certain conditions placed on their ability to work in the United States. This article discusses permanent, Employment-Based immigration that is available through the EB-5 Immigrant Investor Regional Center option.
For the purposes of immigration, having investment capital is similar to having a special skill. Work visas, also known as "green cards," are limited. Inevitably, a process of selecting certain applicants and denying others must take place. Applicants with special skills, something unique or especially valuable to offer, are generally favored.
The EB-5 Immigrant Investor Regional Center program awards permanent work visas to immigrant investors who invest $500,000 or more in a new commercial enterprise. Permanent visas are also available to the investor's family or dependents. The definition of "capital" includes cash, equipment, inventory, other tangible property, cash equivalents, and debt secured by assets owned by the immigrant investor. This means that the immigrant investor may come up with the required capital amount in a variety of different ways. The only strict requirements are that the capital cannot be borrowed and that the capital was not acquired unlawfully.
The language of the rules and regulations regarding EB-5 Immigrant Investor requirements can be confusing. For example, the term "new commercial enterprise" means a business established after November 29, 1990. Older businesses can qualify as a "new commercial enterprise" if they are restructured or expanded by an increase of at least 40% of either net worth or number of employees. Investment in a Regional Center will likely involve a partnership with a new commercial enterprise such that the investor need not be concerned with this requirement. Nevertheless, it is ultimately the immigrant's responsibility to make sure their investment complies with the requirements of the law.
The main goal of the Immigrant Investor program is the creation of jobs. Each immigrant investor must demonstrate the creation of at least 10 jobs. The jobs may be created either directly (e.g. hiring by the business) or indirectly (e.g. investing in a real estate development company that hires construction workers). When partnering with a Regional Center commercial enterprise, the investor may benefit from the existing business practices in order to meet this requirement. The single most important aspect of the partnership is that the immigrant investor's contribution be an "investment," subject to some risk, and not a "loan."
The term "Regional Centers" refers to geographical areas in the United States that need capital investment to stimulate economic growth and create jobs. There are hundreds of Regional Centers across the entire nation. Immigrant investors may choose to be closely involved in their investments by relocating to the area of their investment. Alternatively, they may decide to be passive investors. The immigrant investor may relocate to any geographical area in the United States.
The most significant condition placed on immigrant investors is that their investment capital be utilized within the Regional Center for the requisite period of time. Removing this condition is a lengthy, complex process of filing the necessary forms and being prepared to defend the investor's compliance with the EB-5 Immigrant Investor Regional Center program. Mistakes at this stage may impair the immigrant's ability to obtain citizenship as well as impede the recuperation of invested capital.
There are numerous pitfalls along the way. Most importantly, the immigrant investor must maintain a reliable, defensible documentation of personal and familial identities, investment relationships, and the history of the investment. An attorney can provide the custodial services of document preservation while also maintaining a record on file of the immigrant's application history. An attorney specialized in EB-5 Immigrant Investor laws and procedures can provide the guidance needed to make savvy investments that bring returns and satisfy the requirements of the Agency of U.S. Citizenship and Immigration Services.
A Regional Center investment is a special type of EB-5 investment. There are many companies that are eager to accept Regional Center investments from immigrant investors. Some are more reliable than others. Ultimately it is the responsibility of the immigrant investor to make sure their investment complies with government requirements. An experienced attorney, with knowledge of Regional Center investment practices, can advise the immigrant investor when choosing a Regional Center company for partnership.
Immigrating to the United States is a momentous journey. Combining that great passage with a substantial capital investment plan is a considerable undertaking. The immigrant investor must be vigilant on two fronts: Meeting the strict demands of the Agency of U.S. Citizenship and Immigration Services while at the same time crafting an investment strategy designed to minimize risk and maximize returns.