There are many methods by which a foreign national can become a lawful permanent resident of the United States. One way is to apply for what is known as an EB-5 visa (or an “investor visa.”)
Essentially, the EB-5 visa encourages foreign investors to start a new business in specially designated areas that traditionally have high unemployment.
This means that a critical condition of the investment visa is to actually employ a certain number of people as part of an ongoing, for-profit business.
Visa Applicants and Qualifying Commercial Enterprises
Congress initially authorized the EB-5 visa program in 1990 as part of a larger legislative package designed to stimulate investment in rural and other distressed areas.
To qualify, the visa applicant must “invest in a new commercial enterprise.” The enterprise itself can take just about any legally recognized business form, such as a sole proprietorship, partnership, limited liability company, corporation, business trust, joint venture, or holding company. This means, for instance, that an investor visa applicant could invest in a holding company that has several U.S.-based subsidiaries that engage in separate for-profit activities.
It is critical to emphasize the EB-5 visa only applies to individuals who plan to engage in commercial activities. Noncommercial activity is excluded. In other words, if you are a German citizen and create a business entity whose sole purpose is to manage a residence in Florida for your personal benefit, that does not qualify you for an investor visa in the United States.
Nor can you simply create a shell company that is not actively engaged in business. To the contrary, the EB-5 visa applicant must invest enough capital to create at least 10 full-time jobs at the associated commercial enterprise.
Regional Centers Eligible for Commercial Enterprises
As noted above, Congress originally created the investor visa for the United States to help economically distressed areas. To facilitate this goal, the U.S. Department of Homeland Security designates a number of “regional centers,” including more than 30 in Florida alone.
If an EB-5 visa applicant creates a new commercial enterprise in association with one of these approved regional centers, the government will count “indirect jobs” created as a result of the applicant’s business towards the 10-employee minimum. But if the applicant decides to start their enterprise outside of a regional center, the business must directly employee at least 10 people.
Also keep in mind, the 10 qualifying employees must be U.S. citizens or individuals who are otherwise legally authorized to work in the United States. The investor visa applicant cannot include themselves, their spouses, or their children as qualified employees. And all qualifying employees–including those indirectly employed as a result of the applicant’s commercial enterprise–must work at least 35 hours per week.
Need Help Applying for an Investor Visa in the USA?
The process of applying for an investor visa is not simple.
First, an applicant must have a petition approved by U.S. Citizenship and Immigration Services. Then the National Visa Center will conduct an extensive review of the EB-5 application.
To help move the process along, you should work with an experienced business attorney who focuses on helping non-citizens start businesses in the United States.
Contact me today to schedule a consultation, and we will discuss the best visa option for you.