Integrity Legal

Since the topic of American Investment visas was first broached on this blog, this author has received some questions regarding the way in which United States Investment Visas actually operate in the real world. One of the most frequently asked questions pertaining to EB-5 visas is: “Can I get US Citizenship by investing in the United States?” The answer to that question is somewhat nuanced and it requires one to have a rather in-depth understanding of the EB-5 Immigrant Investor visa and the process for obtaining this type of travel document.

There are some countries around the world which have programs whereby investors can obtain virtually instantaneous citizenship simply by investing capital into the economy of the country issuing the nationality documents. In the United States, there is no program that operates this way. However, the EB-5 visa does grant the visa holder lawful permanent residence in the USA. This is a substantial benefit and should not be taken for granted as Lawful Permanent Residence is a highly sought after status that allows the Permanent Resident to permanently reside and work in the United States. Many often refer to Lawful Permanent Residence as “Green Card” status. That said, Lawful Permanent Residence is not American Citizenship. Those in the USA in Green Card status are not permitted to vote in elections, run for political office, and such individuals also cannot obtain a US passport. Although, those in Lawful Permanent Resident (LPR) status may be eligible to obtain a US reentry permit which allows the bearer to leave the United States for as long as two years without raising the presumption of residential abandonment.

Although there is no “citizenship by investment” program in the USA, the EB-5 visa could be the first step in the United States Naturalization process. For example, if an immigrant investor is granted an EB-5 visa and enters the United States, then that individual would be granted permanent residence upon lawful admission. After residing in the United States for a statutorily prescribed period of time, and assuming all other criteria are met, it may be possible for an EB-5 visa holder to apply for naturalization. Naturalization is the process whereby a foreign national becomes a United States Citizen. The process can be somewhat cumbersome and for those unaccustomed to dealing with immigration matters it may seem complex and frustrating at times, but upon approval of a petition for naturalization an EB-5 Immigrant Investor could theoretically obtain United States Citizenship.

Even though the United States does not offer a direct “Citizenship by Investment” program, one could argue that the US offers a “Path to Citizenship” by Investment program in the form of the EB-5 visa which places holders of said visa on track to possible American Citizenship should all other criteria be adhered to and the physical presence requirement be met.

For related information please see: EB-5 Visa Thailand, EB-5 Visa China, or EB-5 Visa Taiwan.

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In recent months, this author has received a number of inquires regarding the American EB-5 visa. Many seem interested in this visa category because it accords the bearer with substantial benefits in the United States and also puts EB-5 visa holders on track to obtain United States Citizenship. In order to provide the reading public with relevant information, this post will provide a brief overview of the EB-5 visa and some information regarding the application process.

A well rounded layman’s definition of the EB-5 visa can be found at wikipedia.com. To briefly quote wikipedia’s entry regarding the EB-5 visa directly:

“The EB-5 visa for Immigrant Investors is a United States visa created by the Immigration Act of 1990. This visa provides a method of obtaining a green card for foreign nationals who invest money in the United States.^[1] To obtain the visa, individuals must invest at least $1 million, creating at least 10 jobs.^[2]

By investing in certain qualified investments or regional centers with high unemployment rates, the required investment amount is $500,000. The Immigrant Investor Pilot Program was created by Section 610 of Public Law 102-395 on October 6, 1992. This was in accordance to a Congressional mandate aimed at stimulating economic activity and job growth, while allowing eligible aliens the opportunity to become lawful permanent residents. This “Pilot Program” required only $500,000 of investment in exchange for permanent resident status. The investment could only be received by an economic unit defined as a Regional Center.”

Although the above definition provides superficial insight into the mechanics of the EB-5 visa, the official website of the United States Citizenship and Immigration Service (USCIS) may provide deeper elucidation into the eligibility requirements for an EB-5 visa:

Eligibility Criteria

New Business Enterprise

To qualify you must:

1. Invest or be in the process of investing at least $1,000,000.  If your investment is in a designated targeted employment area (discussed further below) then the minimum investment requirement is $500,000.
2. Benefit the U.S. economy by providing goods or services to U.S. markets.
3. Create full-time employment for at least 10 U.S. workers.  This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however it does not include you (the immigrant), or your spouse, sons or daughters).
4. Be involved in the day-to-day management of the new business or directly manage it through formulating business policy – for example as a corporate officer or board member.

Targeted Employment Area is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.”  For further detail click on the Laws section of this website and access section 203(b)(5)(B) of the Immigration Nationality Act (INA).

Troubled Business

To qualify you must:

1. Invest in a business that has existed for at least two years.
2. Invest in a business that has incurred a net loss, based on generally accepted accounting principles, for the 12 to 24 month period before you filed the Form I-526 Immigrant Petition by an Alien Entrepreneur.
3. The loss for the 12 to 24 month period must be at least equal to 20 percent of the business’s net worth before the loss.
4. Maintain the number of jobs at no less than the pre-investment level for a period of at least two years.
5. Be involved in the day-to-day management of the troubled business or directly manage it through formulating business policy.  For example as a corporate officer or board member.
6. The same investment requirements of the new commercial enterprise investment apply to a troubled business investment ($1,000,000 or $500,000 in a targeted employment area).

Regional Center Pilot Program

To qualify you must:

1. Invest at least $1,000,000 or $500,000 in a regional center affiliated new commercial enterpriose or a troubled business located within the area of the USCIS designated Regional Center.  Regional Centers are defined and discussed further below.
2. Create at least 10 new full-time jobs either directly through the capital investment.

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The organizers of a regional center seeking the regional center designation from USCIS must submit a proposal showing:

• How the regional center plans to focus on a geographical region within the U.S., and msut explain how the regional center will achieve the required economic growth within this regional area
• That the regional center’s business plan can be relied upon as a viable business model grounded in reasonable and credible estimates and assumptions for market conditions, project costs, and activity timelines
• How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan
• The amount and source of capital committed to the project and the promotional efforts made and planned for the business project.

As can be seen from the above citation, the eligibility criteria for an EB-5 visa are rigorous, but not insurmountable for an applicant who has the assistance of a competent and experienced US Immigration attorney.  Obtainment of EB-5 visas can require a great deal of time and expense in an effort to ensure that the eligibility and application requirements are met at the time of application submission. Those interested in obtaining such a travel document are well advised to contact an American Immigration lawyer.

For further details about US Immigration in general please see: US Visa.

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