Being an international law firm that represents foreign companies and investors, HLA is particularly adept at providing immigration services to individuals seeking investor visas.
Our attorneys pride themselves on their ability to counsel investors regarding the available options and bring about an expedient and cost-efficient result.
There is good news for foreign investors. First, from a business perspective, now is a terrific time to find good investment opportunities in the US. Also, from an immigration perspective, the laws and processes for obtaining immigration status through investment activities have become more flexible and advantageous in order to encourage investment of foreign capital.
The following is an overview of some of the key visas that are available to investors.
EB-5 – Regional Center
The EB-5 program was created to stimulate jobs through foreign capital investment. The main requirements are as follows:
• Invest one million dollars, or $500,000 in an area designated as a targeted employment area (TEA)
• Create full-time jobs for at least 10 people per investor visa
• Invest in a new business or an existing troubled business
• Invest in an approved regional center
Job Creation Requirement
A foreign investor must demonstrate the investment will create at least 10 U.S. jobs. The jobs must employ U.S. citizens, lawful permanent residents or other individuals who may legally work in the U.S.
The primary benefit of investing in a regional center is that the job creation requirement can be satisfied with either direct or indirect job creation. Direct jobs are those where the employee is paid for working at the actual site of the investment. Indirect jobs are those deemed to have been created in the community as a result of the investment.
Obviously, the ability to fulfill the job creation requirement with both direct and indirect jobs makes it much easier to satisfy the requirement. One possible downside is that the investor is restricted to the available approved regional centers. For those investors who want more control over their investment, an EB-5 direct investment might be a better option.
EB-5 Direct Investment
Immigrants may enter the United States to invest in a new commercial enterprise that will benefit the US economy and create at least 10 full-time jobs. The EB-5 Program is governed by section 203(b)(5) of the Immigration Nationality Act (INA). The USCIS annually sets aside 10,000 permanent residency cards (green cards) for the EB-5 program.
• New Business Enterprise:
• To qualify you must:
• 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.
• Benefit the U.S. economy by providing goods or services to U.S. markets.
• 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).
• 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
In order to qualify for the reduced investment amount, the new commercial enterprise must be located in a Targeted Employment Area (“TEA”) which is _
• A Rural Area—consisting of a population less than 20,000; or
• A High Unemployment Area—in which the unemployment level must be at least 150 percent of the national average.
Acquiring permanent residence (“Green Card”) through EB-5 is a three step process:
1. The applicant must obtain approval of Form I-526 for an Alien Entrepreneur;
2. The applicant must either file an I-485 application to adjust status to permanent resident or apply for an immigrant visa at a U.S. consulate or embassy outside of the United States. The applicant (and derivative family members) is granted conditional permanent residence for a two year period upon the approval;
3. The applicant would then file a Form I-829 Petition by an Entrepreneur to Remove Conditions 90 days prior to the two year anniversary of the granting of the EB-5 applicant’s conditional Green Card. If this petition is approved, then the EB-5 applicant will be issued a new Green Card and will be allowed to permanently live and work in the United States.
The investor’s spouse and unmarried children (under the age of 21) may be admitted to the U.S. with the investor on a two-year conditional period. If the investor’s I-829 petition is subsequently approved, then the conditions will be removed for the spouse and children’s Green Card status as well. As a lawful permanent resident (Green Card holder) the investor’s spouse and children will be authorized to work or attend school in the U.S.
Other E-Class Visas
E-1 TREATY TRADER – carries on substantial international trade in his/her personal capacity or as employee of a foreign person/organization engaged in trade principally between the United States and the home country.
E-2 TREATY INVESTOR – must have invested, or be actively in the process of investing , a substantial amount capital in a bona fide enterprise that he/she will develop and direct in the United States.
Temporary workers engaged in international trade or investment between the United States and their countries of nationality may apply for resident status, provided that all of the following conditions are met:
- The employer or owner of the business is a national of a country that has a commercial treaty (Treaty of Friendship, Commerce, Navigation, Bilateral Investment Treaty, or Free Trade Agreement) with the United States.
- The employee has the same nationality as the principal foreign employer or, if the employer is a United States enterprise or organization, it is at least 50% owned by persons in the United States having the nationality of the treaty country.
- The duties of the employee are principally and primarily executive, supervisory, or otherwise essential to efficient operation of the United States enterprise.
The spouse and children of an E-1 or E-2 foreign national will be admitted under the same classification as the principal. Dependents are not required to have the same nationality as the treaty country.
There is no annual limit on admissions under the E-1 or E-2 classification.
E-1 or E-2 principals and dependents may be admitted for a maximum initial period of two years. Dependent status is not affected by temporary departures of the principal from the United States. NOTE: Principals and dependents are not generally admitted for periods extending more than six (6) months past the expiration dates of their passports. A treaty trader or investor maintains status only while engaged in the approved E activities or employment.
Extensions may be granted for up to two (2) years if the treaty alien has maintained status and was physically present in the United States when the extension was filed. There is no specified number of extensions of stay that can be granted to an E alien. EXCEPTION: Treaty nationals associated with start-up of new treaty entities are presumed to be able to accomplish this within two years and are ordinarily not eligible for extension.
Treaty traders and investors must maintain the intent to depart the United States upon expiration of their E status, but need not specify the duration. An application for initial E admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for labor certification or a filed or approved immigrant visa preference petition.
Change of Status
A foreign national present in the United States in another valid nonimmigrant status may change status to become a treaty trader or investor, if eligible. E employment may not commence until USCIS approves the application on Form I-129 (with E supplement). Dependents’ changes of status will depend upon approval of principal’s change of status.
Changes in Employment
E-class non-immigrants may change from one U.S. affiliate to another, provided that the affiliates were made known during the original adjudication or are subsequently approved. NOTE: Mergers or acquisitions of an employing entity, or sale of a division of the entity to which the treaty trader or investor is assigned, may alter the employing entity’s ownership so that it is no longer primarily owned by nationals of a treaty country and/or of the same nationality as an E employee. Where a substantive change affecting the structure or ownership of the employer has taken place, the employee must submit Form I-129 (with E supplement) to USCIS and be granted an extension of stay under the changed conditions, or obtain a new consular visa reflecting the new terms and conditions of employment, in order to work for the new entity. Changes that would not affect the foreign national’s continued eligibility for “E” classification are non-substantive and need not be submitted to USCIS for approval. Even in such cases, especially where the employer has changed its name, foreign nationals may facilitate readmission to the United States by carrying an explanatory letter from the qualifying employer, filing an I-129 with request for a new I-797 Approval Notice, or applying to the State Department or consular office for a new visa reflecting the change.
Employer-Specific Work Authorization
An E-1 or E-2 alien is authorized to work only for the treaty enterprise and any parent company, subsidiaries, and/or other entities related to the treaty enterprise employer that were identified in the process of adjudicating E treaty status. All qualifying positions must be managerial, supervisory, or require essential skills. For employment eligibility verification purposes, an employee presents his or her unexpired passport with the Form I-94 Admission-Departure Record indicating unexpired E-1 or E-2 status.
Citizens of Mexico or Canada may be denied treaty status if:
- the Labor Department identifies a strike in progress at the U.S. location where the individual would be employed or
- the individual’s temporary admission would adversely affect settlement of a labor dispute or the employment of any person involved in the dispute.
NOTE: Canadian or Mexican treaty employees already employed in E-1 or E-2 status are not affected.