There is significant real estate investment in the United States being made from abroad. For those foreign investors who are interested in immigrating and investing in real estate, one of the best visa options available is known as the Employment Based Fifth Preference, or EB-5 visa. This visa permits qualified investors who meet a certain minimum threshold investment level to apply for admission to the United States.
While there are many visa options available to foreign investors, such as visitor for business (B-1), treaty investor (E-2), or intra-company transfers (L-1), these options are all for “nonimmigrant” visas. In other words, they authorize a temporary stay and carry with them many restrictions. For instance eligibility for the E-2 nonimmigrant investor visa is restricted to nationals of certain treaty countries. In contrast, the EB-5 visa is an immigrant visa, open to all nationalities, granting the qualifying applicant permanent resident status, commonly known as having a “Green Card.”
Permanent resident status carries with it many benefits of which investors would want to avail themselves. A Green Card holder can petition for permanent resident status for his spouse and children under the age of 21. It removes employment restrictions, allowing the investor to work in any field he desires, as well as making him eligible for social security upon retirement. It makes international travel simpler, as an I-94 is no longer required upon entering the country. It allows foreign national homeowners to apply for homestead exemption and realize significant tax savings. Essentially, becoming a permanent resident affords the Green Card holder all the rights and benefits of American citizenship except voting rights. If the investor desires, permanent residents may apply for naturalization (citizenship) after five years.
There are two EB-5 programs from which to choose, the Regular Program and the Regional Center Program. The Regular Program has three basic requirements: (1) investment in a “new commercial enterprise” (2) of at least $1,000,000 (or $500,000 in certain cases, discussed below) (3) that results in the creation of at least 10 new full-time jobs. Additionally, the investor is required to take an active enough role in the business that he has at least a policy-making position.
Traditionally, the EB-5 visa has been known as the “Million Dollar Investor Visa.” To qualify for this visa, an investor must contribute at least $1,000,000 in capital to the business in the form of cash, equipment, inventory, and other tangible property. Loans do not qualify unless they are secured by assets owned by the investor (not the business), who is personally and primarily liable for the debts.
The investment must also be in a “new commercial enterprise.” Although the investor is free to invest in a company that was only very recently started or establish his own, any business formed after November 29, 1990 qualifies. Furthermore, the prospective immigrant may choose to invest in a business that has been substantially restructured since November 29, 1990, so long as that restructuring did not create a net loss of employment. Finally, businesses substantially expanded after November 29, 1990 qualify if their net worth or employment have increased by at least 40%. If the investor is concerned about the business reaching this 40% minimum requirement, he can include the capital contributed by other investors, even if they are already permanent residents or citizens.
The final requirement is the creation of 10 new full-time jobs for U.S. citizens or immigrant workers (not including the investor and his immediate family). These jobs must be directly created as a result of the investment. The only exception to this requirement is if the company is considered a “troubled business,” one experiencing a net loss for one or two years of more than 20% of its net worth.
Investors have two years of conditional residency in which to fulfill all the requirements. During this time, the $1,000,000 must be invested (and if part of this is in the form of a secured promissory note, it must be substantially complete). The ten jobs can also be created over the course of these two years. If at the end of two years the requirements are met, the conditions on permanent residency will be lifted.
The Regular Program also includes a $500,000 investment option, although only investments in certain areas apply. The requirement to invest in a new commercial enterprise and the job-creation requirements are the same. However, the investment amount is greatly reduced and business must be in a “targeted employment area.”
There are two different qualifications for targeted employment areas. Investors can either choose to create jobs in a rural area, which can be anywhere outside of a city with a population of 20,000 or more or outside of a metropolitan statistical area, or they can invest in a business in an area with high unemployment (at least 150% the national average).
There are many benefits to choosing the $500,000 Regular Investment program that go beyond the reduced amount of investment necessary. One of these is that investors can band together. Immigrant investors can work with other immigrant investors, foreign investors not seeking immigration benefits, or U.S. citizens. As long as each immigrant investor contributes at least $500,000, and creates the requisite employment they will qualify.
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