The U.S. Investor Visa program, also called “EB-5″, is a popular federal program with two goals: first – stimulate U.S. economy through capital investment and job creation, second – enable foreign investors to obtain their permanent resident visas (“Green Cards”) through such investment. Any investment under the EB-5 program could therefore only be successful if it keeps these two goals in mind. An uninformed investment, which centers only on the amount of investment, and not the end result of creating jobs through a successful enterprise, is far less likely to result in a Green Card.
In other words, an EB-5 investor must make thorough due diligence to ensure that his or her investment is a “good investment”. Only then is such an investment more likely to fulfill the rigorous requirements of an EB-5 program. The first step to success in ensuring this is understanding the two different ways to make this investment: investment through a “Regional Center” (hereafter “RC”) and investment through a “traditional” EB-5 program (without a RC).
Investment Using a RC
In 1992, the U.S. Government created the Immigrant Investor Pilot Program which provides for economic units known as “Regional Center(s).” These centers are private entities which submit economic growth proposal to the U.S. Citizenship and Immigration Services. They explain to the USCIS the mechanism of how their center will have a positive impact on the job market in the geographic region of the center. This allows the foreign investor to piggyback on the RC’s explanation and the economic proposal. The Center then seeks funding from numerous foreign investors, compiling each of their investment to create a more successful economic strategy than the one in which an individual investor attempts to fulfill different job creation requirements.
Nevertheless, foreign investors are wary of these centers because the investor does not have a control over their money once they invest through a RC. This is a legitimate fear. However, the advantages in an investment through a Regional Center far outweigh its risks. It is imperative that an EB-5 investor understands these risks before ruling out a Regional Center route to EB-5 Green Card.
The first advantage is benefiting from an expansive definition of “creating jobs” in an investment through a Regional Center. An EB-5 investment must create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or in some other cases within a reasonable time after these two years) of the investor’s admission to the U.S. as a Conditional Permanent Resident. Usually, these jobs must be direct, that is, these must be identifiable jobs located within the commercial enterprise into which the investor directly invested his or her capital. However, unlike the traditional EB-5 route, an EB-5 Regional Center investor can also take advantage of the indirect jobs that will be created in the geographic region as a result of his or her investment. Indirect jobs are defined as jobs created collaterally or as a result of the capital investment in a commercial enterprise affiliated with a regional center by an EB-5 investor.
Secondly, an “approved” RC has a stamp of approval from the US government that the center’s business plans are likely feasible and will directly or indirectly lead to job creation. Although such designation does not mean that an investment in those centers is backed by the government, it is easier to convince USCIS that the investment will lead to its proposed goal of job creation if the RC is approved.
Investment through a Traditional EB-5 Program – Without a Regional Center
Investment in a traditional EB-5 program is generally trickier and more complex than an investment through RC. Here, the investor must come up with the entire business plan of how he or she will generate the requisite number of jobs. The complexity is brought about by the numerous USCIS requirements for such a business plan.
Firstly, the capital requirement for an EB-5 Green Card is a usually minimum of $1 million. The exception is that such investment may be $500,000 if the investment is in a targeted employment area (TEA), that is, an area of high unemployment or a rural area. Individual investors often find it hard to explain that the area they are investing in is indeed a rural area or an area of high unemployment. Therefore, they often end up investing the higher amount – $1 million for their green card. On the other hand, most of the approved RCs are approved as TEA investments, and thus qualify for the reduced $500,000 requirement.
Secondly, all EB-5 investors must invest in a “new commercial enterprise”, that is, a commercial enterprise established after November 29, 1990, or established on or before November 29, 1990, that is either purchased and the existing business is restructured in a way to result a new commercial enterprise or it is expanded through an investment so that there is a 40 percent increase in the net worth or number of employees. While the definition of a commercial enterprise is broad, many investors do not have the requisite technical or managerial skills required for such businesses, and resultant, their investment is not very successful. Good RCs, on the other hand, have tremendous technical, engineering and managerial expertise at their disposal which allows them to run create new commercial enterprises without much of a difficulty. Consequently, with a Regional Center EB-5, the foreign national does not have to be tied with the new commercial enterprise. He or she can live, work, or travel far more easily than someone who has to continuously manage and control the EB-5 business to fulfill USCIS requirements.
Conclusion
As explained above, the standards for individual EB-5 petitions are very restrictive, and therefore, Regional Center EB-5 petitions now amount to more than ninety percent of all EB-5 petitions filed. At the same time, there are more than five hundred Regional Centers approved by USCIS. The benefits of a Regional Center EB-5 do not in any way imply that investing in any Regional Center is always a better strategy for a successful U.S. Green Card. Only a handful of Regional Centers have an established track record of returning positive investments. The investor must conduct a thorough due diligence of different Regional Centers and decide which one to use only after consulting various experts in this field.