EB 5 VISAS
The EB-5 Visas also known as employment creation investor visas generally allows for conditional residency (2 year period) for persons who, after November 29, 1990, invest $1 million in a new commercial enterprise that employs at least 10 USC’s or authorized immigration workers full-time and engage in the business through day-to-day management or policy formation. The business must be a NEW commercial enterprise which includes:
1. A company formed after Nov. 29, 1990
2. A company formed prior to Nov. 29, 1990, but only if:
a. The company has been restructured or reorganized so that a new commercial enterprise results; OR
b. The company has been expanded so that a substantial change (defined as a 40% increase) in the net worth or number of employees has occurred
The investor must invest or be actively in the process of investing at least $1 million, or, in the case of an investment in a “target employment area”, at least $500,000. A “Target Employment Area” is defined as a “rural area with a population of less than 20,000 OR an area which has experienced high unemployment of at least 150% of the national average.” Investment can be in the form of cash, equipment, inventory, other tangible property, and indebtedness secured by assets owned by the entrepreneur. Loans to the commercial enterprise DO NOT constitute an investment. The entrepreneur must demonstrate that he or she has the requisite amount of funds “at risk” in order to constitute an investment. An UNSECURED promissory note is NOT an investment. Any note must be secured by the entrepreneurs own property and substantially complete payments on the note prior to the end of the 2-year conditional residency period. The sole proprietor of a business cannot demonstrate sufficient “at risk” funds merely by placing the money in a business account, because that proprietor can withdraw the funds at any time. The investor must demonstrate the source of the funds and show that they were garnered legitimately and must create full-time employment for at least 10 qualifying U.S. citizens or immigrant workers, not including the applicant or his/her immediate family.
- Articles of Incorporation/other business organization documents; OR –Authorization to do business in a state or municipality
- Documents evidencing the investment, including bank statements, evidence of purchased assets
- Foreign business registration records;
- Corporate, partnership and personal tax returns filed within 5 years;
- Where source of funds are from sale of house or business, investor must provide sales contracts or deeds
- Petitioner’s level of income during previous years (i.e. from before 5 years ago)
- I-9’s and tax records if employees already hired, including proof that they are working full time; OR
- A copy of a comprehensive business plan, demonstrating where and when the 10 employees will be hired within the next 2 years
- “comprehensive” business plan should include:
- A description of the business, its products and/or services, and its objectives;
- A market analysis, including the names of competing businesses and their relative strengths and weaknesses, a comparison of the competition’s products and pricing structures, and a new description of the target market/prospective customers of the new commercial enterprise;
- A list of the required permits and licenses obtained;
- A description of the manufacturing or production process, including the materials required and the supply sources, if applicable;
- A marketing strategy, including pricing, advertising and servicing;
- The organizational structure and its personnel’s experience;
- The staffing requirements and a timetable for hiring, including job descriptions for all positions;
- Sales, costs and income projections, and the basis for those projections
- Title and description of his or her job duties; OR
- Evidence that he/she is a corporate officer and director
E VISA INVESTORS
The E-2 Treaty Investor visa allows a foreign business person to enter the United States under a treaty of commerce and navigation between the United States and the foreign state from which he or she is a national, in order to direct or develop the operations of an enterprise in which he or she is actively in the process of investing a substantial amount of capital in a bona fide enterprise. It also allows an individual employee of such an investor to enter the U.S. to serve in an executive or supervisory position, or, if in a lesser capacity, has special qualifications that make the alien’s services essential to the efficient operation of the enterprise.
The initial period of stay for an E-2 visa is two years, but this period can be extended in increments almost indefinitely, since technically there is no maximum limit on the duration of stay. The E visa may be applied for through a United States Consulate abroad, as opposed to filing a petition with the INS.
The E-2 visa requires that a treaty of commerce and navigation exist between the country of origin and the U.S. Secondly, a majority ownership of the company must be held by nationals of the same country, in this case, Canada, and the E visa applicant must be a Canadian citizen.
In addition, the following rules apply to the investment:
- The “investment” is the placing of capital including funds and other assets at risk in the commercial sense with the objective of generating a profit. The investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Such investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise.
- The investment must be “substantial.” This means an amount that is (i) substantial in relation to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration; (ii) sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and (iii) of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. Generally, the lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered a substantial amount of capital. Generally, “sliding scale” guidelines are used to determine whether the amount is substantial: for a business which costs or is valued at less than $500,000 to start, the investment must be at least 75% of the cost; for one which costs between $500,000 and $3 million, the investment must be 50% of the cost; and for one which costs more than $3 million, the investment must be at least 30%.
- The investment must not be a “marginal” concern. This means that the enterprise has the present or future (within 5 years) capacity to generate more than enough income to provide a minimal living for the investor and his or her family.
To begin evaluating and preparing the E case, we will preliminarily need to review copies of:
- Documents evidencing the existence and ownership of the United States company such as stock certificates, articles of incorporation, bylaws, etc.;
- Copies of the passports of any individual owners, and/or evidence that the company is owned by citizens of Canada;
- Documents evidencing the transfer of funds from Germany to the United States, such as bank account statements, wire transfer notifications, etc., if such has occurred;
- Summary of investment, showing expenditures (proposed or already made) for start-up purposes;
- Description of proposed U.S. projects and business plan for the U.S. entity, including projected cash flow statements for the next 5 years;
- Documents evidencing the expenditure of funds for start-up purposes, such as fees paid to third-parties (accountants, attorneys, architects, consultants, etc.);
- Financial statement of the company; and
- Copy of lease for office or commercial space.
To learn more about this process, please contact our office at 1-888-905-0202 or email us at mrimmigration.com