The employment-based 5th preference category, also known as employment-creation visas, is available to those investors, who have invested, or are in the process of investing, lawfully obtained capital in a new commercial enterprise employing at least 10 full-time US workers. The amount of the investment must be at least one million dollars, unless the investment is to be in a targeted employment area, in which case the investment need only be five hundred thousand dollars.

To qualify as an immigrant investor, the alien must invest in a new commercial enterprise. This can be done by starting a new business; by purchasing and restructuring a new business; by expanding and substantially changing the net worth or number of employees in a business; or by investing in a troubled business, so that there is a forty percent increase in the net worth or in the number of employees of the business.

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership, holding company, joint venture, corporation, business trust, or other entity that may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and it's wholly owned subsidiaries, provided that such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for purposes of the Act.

To qualify in the EB-5 category, the investment must create full-time employment for at least 10 US citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the United States . While an investor may employ his family members in the new enterprise, the spouse and children do not count toward the 10-employee minimum. Employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. This definition does not include independent contractors. Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week.

As stated previously, the investment must be $1 million unless the investment is in what is known as a "targeted area." A "target area" is defined as a rural area or an area that has experienced high unemployment. An area not within a metropolitan statistical area or the outer boundary of any city or town having a population of 20,000 or more is considered a rural area. The Department of Commerce of each state publishes a list of its targeted areas, and should be contacted in order to obtain a copy.

A petition for employment creation aliens is filed with the US immigration service center having jurisdiction over the place of the proposed investment. When the petition is approved, the alien, together with the spouse and unmarried minor children, will file their applications for immigrant visas at a US consulate if they are outside of the United States , or will file for adjustment of status with the US immigration service if they are in the United States and eligible for adjustment of status.

How much to invest in the United States

The amount of capital necessary to make a qualifying investment depending on what areas the investment is located: Generally, $1 million is needed in most areas. Only $500,000 is needed if the investment is in the "targeted" areas, such as remote areas or highly unemployment areas. Check with the local state government for the targeted areas before deciding the required investment capital.

Basic requirements

• Having $1 million or $500,000 to invest during a two-year period.
• The investment must create 10 full time positions for lawful US workers, excluding the visa applicant, his or her spouse, sons or daughters.
• The applicant must be actively involved in the management of the business.
• The capital for investment must be obtained, directly or indirectly, through lawful means. Money obtained through drug trafficking or other criminal activities may not be used for such application

Other exceptions

• The applicant does not have to be a school or college-educated. He or she can qualify for this visa even though he or she did not receive any schooling.
• The required amount of capital does not need to be actually invested at the time of filing the application.
• The required amount of capital does not have to be case or money. Equipment, inventory, other tangible or intangible property may also qualify.
• The investment does not have to create 10 full time positions if the investment is made in a "troubled business". A "troubled business" is one that has been in existence for at least two years and has incurred a net loss during the previous twelve or twenty-four-month period.

Number of visas available to investors

There are 10,000 visas allocated each year for this category.

Receiving the temporary investor green card

We will prepare the petition and file with USICS. upon approval of the petition, a conditional green card will be issued to the applicant and his or her family members-the spouse and all unmarried children under the age of 21 years. Such condition can be removed after two years of business operation.

Receiving the permanent green card

After two years, the investor must demonstrate to the INS that he/she has complied with the requirements. Basically, the United States government wants to see if the conditions have been satisfied and the investment is real.

Application for the investor immigrant visa is quite complex. Our attorneys are ready to advise when the applicant decides to put the large amount of investment at risk in order to obtain U. S. permanent residence.