Casablanca Legal Group - The International Business and Immigration Group

EB5 (Investor) Green Card

Introduction: The EB-5 Green Card category was first introduced in 1990. Under this petition, foreign investors contributing US$1,000,000 to a new enterprise that they own and manage or US$500,000 in the case of a high unemployment area or rural area through a regional center, and who directly create 10 new full-time jobs for local workers, are granted permanent residency status for themselves, their spouse and their minor children under the age of 21.

Aside from its many advantages listed below, the EB-5 visa is a good choice if:

you come from a country with long delays in immigrant visa such as Mexico, India, China and the Philippines;
you have a child or children who will be pursuing university degrees in the United States and want to take advantage of beneficial tuition rates;
you do not want your business enterprise or objectives in the US to be held in abeyance to your immigrant status; or
you just want a quick headache-free way to get a green card.

Once the petition is approved, a conditional Green Card (i.e., permanent residency) status in the United States is first granted to the investor for 2 years. A second petition is then required within 2 years to obtain a permanent green card status without conditions.

Types of EB-5 Investments: EB-5 investments are broken into 2 categories.

Direct Investment: A direct investment is simply an investment in a company.
Regional Centers: Regional Centers are businesses authorized by U.S. Citizenship & Immigration Services (USCIS) to support foreign investors in their green card petitions, and to develop and manage such investments in a specific location in the U.S. Generally, Regional Centers require investments of $500,000. Currently, there are over 50 USCIS approved Regional Centers. Regional Centers offer foreign investors several benefits, including:
- enabling the pooling of investments between investors;
- using indirect job creation in the community to establish that 10 jobs were created; and
- having your investments managed by the Regional Center - while still maintaining investor oversight. Investing through a Federally-designated Regional Center offers the immigrant the most expeditious means for obtaining a permanent visa.

Advantages: The United States EB-5 visa is a permanent visa and does not require any further re-qualification. The EB-5 visa program offers more advantages and fewer constraints than any other visa program in the world. The EB-5 visa has no requirements as to age, business training, management skills and other experience or language skills. The benefits of permanent residency in the United States go far beyond economic and political stability.

Foreign nationals who obtain a permanent visa can enjoy all the benefits of any other United States resident.
The visa creates ease of access to the United States for trade or business.
The visa holder and his/her qualified family members are entitled to attend public schools including enrollment in universities and colleges. If attending home state universities, significant cost savings may be obtained.
The health programs of the United States government are also available including Social Security.
The investors have no requirement or obligation to accept employment.
Once the permanent visa is obtained, there is no renewal or re-application required.
The new immigrant may locate anywhere within the United States without restrictions.
When investing through a Regional Center, the EB-5 investment program does not require investors to actively manage their investments on a daily basis but rather they are allowed to “actively engage” in a business enterprise. This means that the investors can be limited partners and pursue other professional or personal ventures.
Should the investor and his/her qualified family members choose to become U.S. citizens, the time spent as conditional permanent residents is credited towards the 5-year lawful permanent residency requirement for U.S. citizenship.

Eligibility: An immigrant investor must meet several requirements to qualify for a permanent visa (green card). Some of the very basic requirements are as follow:

Investment funds must be from a lawful source.
The investment must make a positive impact on the economy.
The investment has or will create 10 new American jobs.
The investment must be at risk.
The investment cannot have a redemption agreement or any guarantee on the return of investment.
The investment is US$1 million or US$500,000 in the case of a high unemployment area or rural area.
The enterprise must be a new commercial enterprise.

However, all these eligibility requirements besides the proof of the source of funds are handled by the project.

Frequently Asked Questions

Who should invest? EB-5 investors include people from all walks of life: professionals, business people, persons wanting to facilitate a child's education, and retirees. Because the EB-5 visa permits employment in the US, many EB-5 investors become involved in charity or part time work. Simply put, the EB-5 visa gives you the flexibility to do what you want in the United States. If you don't want to actively manage your business, you should consider a regional center EB-5 investment. If you have a US citizen parent or child over 21 years of age, you may consider family class visa categories. If you have exceptional skills or are famous, you may qualify for a Green Card based on your extraordinary ability. If you want to manage your own business, consider an L-1 (Intra-company Transferee), E-2 (temporary Treaty Investor), or EB-5 case based on your own business which you control. If your goal is to have a Green Card and not to actively manage a business, it is often cheaper and/or convenient to utilize the Regional Center EB-5 category rather than to start and maintain your own business.
Is EB-5 a truly passive investment? The EB-5 regulations require involvement in management or policy making. However you may invest as a limited partner. The regulations deem a limited partner in a limited partnership that conforms to the Uniform Limited Partnership Act, sufficiently engaged in the policy making of an EB-5 enterprise.
How long does it take for an EB-5 petition approved and a green card issued? The entire Green Card process takes between 10-12 months depending on where the process takes place. Prior to filing the Immigrant Petition by an Alien Entrepreneur (I-526 petition), it takes about two months for the investor to make the investment and gather the necessary documents. Most petitions are approved in about 6-7 months. After the I-526 petition has been approved, if the investor is already lawfully residing in the United States, he/she may apply for Adjustment of Status (I-485 petition) to a conditional Green Card which can be processed in about 12 months, but can sometimes take longer. If the investor is outside of the United States, the investor will apply for the conditional Green Card at his/her home country U.S. Embassy or Consulate. The immigrant visa process at the U.S. Consulate or Embassy requires about 8-12 months. After being granted, it usually only takes a few weeks or months for the conditional Green Card to arrive.
How many EB-5 Green Cards are available? Every year, approximately 10,000 EB-5 Green Cards are available. There is no quota waiting list for EB-5 Green Cards unlike the other immigrant classifications where demand exceeds supply. Approximately a third of 10,000 EB-5 Green Cards are set aside for qualifying immigrants who participate in an EB-5 Regional Center program that primarily targets high unemployment or rural areas across the United States.
Can money gifted by a parent or relative be used for an EB-5 investment? Yes, provided that any applicable gift taxes are paid. It must be demonstrated that the gift is an actual arms length transaction and is a not a mere ruse or that the gifted funds will be given back after permanent resident status is granted.
Can money obtained from banks loans be used for an EB-5 investment? Yes. The regulations permit indebtedness secured by the investor's own assets to count as “capital.” This rule allows bank loans and therefore provides greater flexibility for the investor who may have assets that are being used for other personal and business purposes and are not immediately available for investment in an immigration program. The bank loan also broadens the number of investors eligible for the EB-5 Visa.
Will attorneys advise me on whether the investment will provide a good financial return? No. We will only advise on immigration matters. You will need to conduct your own due diligence and economic analysis or hire experts to do so.
What is a conditional green card? A conditional Green Card is a temporary Green Card valid for two years. One year and nine months after it is issued, a three-month window opens up during which an individual must file another application (I-892 petition) with the USCIS to verify that all of the funds have been invested and employment created. When the conditional resident status has been lifted, full resident status is granted and a permanent Green Card is issued.
What documents must I prepare to start my EB-5 green card petition? You must prepare complete biographical information and must prove the source of the investment funds. To prove the source of investment funds, USCIS requires five years of personal and business, if any, tax returns, proof of ownership in any businesses and business licenses. You must present a track record of a honest course of dealing. If your capital came from a specific transaction, such as sale of a house, inheritance or gift, you must prove the transaction occurred, by providing an official document, such as a closing statement or contract or other official documents. This is not an exhaustive list. Other documents may be required and vary on a case-by-case basis.
What issues have been problematic in EB-5 cases? The most common problem area has been insufficient documentation of the source of funds. Many people try to disclose the least possible information only to have the file returned with a request for further information. It is better to provide too much information rather than too little information. In this era of terror alerts and suspicions about money laundering, USCIS case examiners require a well-documented source of funds.
Are EB-5 visas available to people from any country in the world? Legally yes. However, people from countries that do not have reliable tax and other financial documentation will find it much more difficult to prove an EB-5 visa application; however, it still can usually be done.
Are the investments guaranteed? No. The EB-5 Visa regulations require an "at risk" investment without guarantees or redemption rights.
What are the risks? As in any investment there is a risk of total loss. Like everybody, there is the risk of the effects of acts of god, war, and market fluctuations, real estate prices, etc. We urge all investors to independently verify the information contained in any qualified investment prospectus obtained from Regional Centers.
How long must I remain in the United States each year? The first requirement of any investor after receiving the visa (conditional green card) at the United States Overseas Consular Office is to enter the United States within 180 days of visa (conditional green card) issuance from the U.S. Embassy. The investor must then establish residency in the United States. The United States does not require the investor to have a physical presence in the United States for any given amount of time. However, under U.S. law the investor must establish and maintain the “intent” to be a resident. Evidence of intent to reside includes opening bank accounts, obtaining a driver's license, obtaining a social security number, paying state and federal taxes and renting or buying a home. The U.S. resident may work overseas if required, based upon the nature of his or her business or profession. For those permanent residents living outside the United States, it is recommended that the investor and family should probably re-enter the United States no less than once every six months. The longer the investor and family are present in the United States, the less likely the government is to claim that the investor “abandoned” the United States as a permanent residence, thereby endangering his or her “green card” status. In some cases, investors may seek the issuance of a “re-entry permit,” which allows the USCIS to grant permission to remain outside the United States for as long as two years without having to re-enter the United States to maintain permanent resident status.
What is the difference between permanent residency and citizenship? There are two ways to become a U.S. citizen. One is by being born in the United States or being born to a U.S. citizen. The other way is by naturalization. In most cases, the first step in becoming a U.S. citizen through naturalization is to become a Legal Permanent Resident. Five years of permanent residency is one of the basic requirements for qualifying for naturalization. A second requirement is maintaining a physical residence in the United States for 30 months during the five years prior to the naturalization petition. Once he or she is a U.S. citizen, an individual is entitled to benefits including the right to vote and to hold public offices.
What are the tax implication of U.S. residency and the initial investment? Any interest that is earned or profits on the investment that result in actual distribution of cash that are in addition to the investment may result in U.S. tax liability. In the event that taxes must be paid, they are generally minimal. It is extremely important to abide by the laws of the United States, which include not only immigration laws, but also tax laws. We suggest that you seek advice from independent tax advisors which will be able to provide tax related services according to U.S. law, and will refer you, upon request, to a professional tax authority in foreign jurisdictions who will help to minimize taxes as much as legally possible.
Where can I find the relevant law and regulation to study? For further information, please go to the website of the United States Citizenship and Immigration Services - http://www.uscis.gov/.

Who are we

Casablanca Legal Group - The International Business and Immigration Group: is an international boutique law firm whose lawyers are leaders in the Business and Immigration field. We have over 150 years of combined experience in the field. Our lawyers are authors who have published articles and books on immigration issues and are admitted to practice in the highest court of the land - the United States Supreme Court. Through our mission, we are dedicated to resolving and insulating our clients from difficult immigration issues; we communicate legislative immigration trends to our clients; and we want our clients to succeed.

Our Expertise: Attorneys at Casablanca Legal Group have been highly successful at advising individual clients on the growing number of EB-5 investor Green Card petitions filed through Regional Centers. Our attorneys are sought by clients to act as detailed guides to the complex process of understanding the immigration steps involved in a Regional Center petition, and in understanding what risks and benefits each Regional Center offers investors from an immigration point of view. Our attorneys can also help analyze a client's potential assets to determine the most effective source of funds. When the initial investment has been completed, we will prepare and file all necessary immigrant visa petitions before USCIS or a U.S. Consulate abroad.

For further information please contact Chern Yu (Roy), Teng () or Maria (Marisa) Casablanca () at: (305) 577 4220 or visit us on our website at www.casablancalegal.com.

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