Both large and small investors can obtain immigration benefits to live in the United States along with their spouses and minor children. Smaller investors in an active business may be entitled to temporary non immigrant visas that can be renewed indefinitely as long as the business remains viable. Larger investors may be entitled to a green card for themselves and their family. Although these are very complicated matters requiring the help of an experienced immigration attorney, we can summarize these visas as follows:
E2 TREATY INVESTORS.
The Treaty Investor category, allows foreign companies and smaller individual investors to transfer the investor or a key employee for the investing company to the US to direct the business US provided the following:
- The US has an investment treaty with the investor’s country. That treaty country list is a long one but does not include any of the BRIC countries (Brazil, Russia, India, or China).
- The amount investment is “substantial.” The amount of the investment (the first question we are usually asked) is the most difficult to answer. We rarely accept investments of less than $100,000 and even that may not be enough. Ultimately it depends on the nature of the business and the amount of funds that will be required to make the business viable. (An investment is in a convenience store will be less than an investment in a manufacturing plant.)
- The investment cannot be “marginal.” This means it “cannot be solely to earn a living for the investor and his family.”
- The investment funds must be your personal funds and can be obtained by any legal means including your income, a gift, inheritance, the sale of property or a personally secured loan. If the investor is a business, the funds must be the funds of the business and the business must have the nationality of a treaty investor company.
- The investment does not have to be cash. An investment of manufactured goods, for example, is acceptable.
- As the investor, you (or your foreign company) must own a controlling interest in the US business which generally means owning 51% of the corporate stock or partnership interest.
- The investment must be at risk. This means the investment amount must be spent and not merely sitting in a bank account. (Although, putting the funds in an escrow account is acceptable pending the approval of the E visa.)
GREEN CARD INVESTMENTS (EB-5)
A special Employment Based Preference category is set aside for larger investors. This preference, known as the Employment Based Fifth Preference, or EB-5, requires an investment of at least $500,000 and often as much as $1Million. The investment must create 10 jobs for US workers. This means if you buy an existing business with 8 existing employees, for example, you will not satisfy the requirement by adding 2 employees- you must add 10, bringing the total to 18.
Other things to note:
- Unlike the E-2 above, the EB-5 investor can be from any country.
- The investment can be either a direct investment in your own business or an indirect in a Regional Center approved by the Department of Homeland Security (DHS.) The Regional Center, almost always involves larger, multimillion dollar projects, will create the jobs for you and you have little or no direct involvement in the management of the business enterprise. The critical decision you, as the investor, must make at the outset is whether you have the business experience to manage and grow your own business in the US or whether you prefer to have that task performed by more experienced business managers in a Regional Center.
- There are over 700 Regional Centers approved by DHS and only a small fraction are currently successful in fully funding a qualifying enterprise and obtaining USCIS approvals for immigrant investors. Choosing a Regional Center wisely is critical.
- An investment of $1Million will qualify anywhere in the US. An investment of $500,000 must be in a designated Targeted Employment Area, which is an area of high unemployment.
- As with the E2 above, the investment must be from your personal funds but those funds can come from a gift, inheritance, secured loan, or you own earned income.
- Initial approval of an EB-5 application will result in a conditional green card for two years. In the 90 days before the green card expires, you must remove the conditions by demonstrating to USCIS that you have fully paid your investment and that investment has created 10 US jobs.