Congress established the employment based fifth preference (EB-5) immigrant visa category under the U.S. Immigration Act of 1990 (IMMACT90) in the hopes of attracting foreign capital to the U.S. and creating jobs for American workers in the process. IMMACT90 allows the U.S. Citizenship and Immigration Service (USCIS) to issue up to 10,000 immigrant visas annually to qualified investors and members of their immediate family.
To be eligible an alien must invest $1 million (or $500,000 if the investment is made in an area that has experienced unemployment of at least 150 percent of the national average) in a new commercial enterprise in the U.S. which creates at least 10 full-time jobs for U.S. citizens or permanent resident aliens.
To qualify under the regular program a foreign investor must establish that (a) the investment will be in an active business, (b) the invested funds belong to the investor, and (c) 10 new jobs will be created. The statutory requirements of the EB-5 are burdensome. It is estimated that the USCIS approves about 15 percent of these types of petitions. However, investor petitions filed through regional centers are now being approved at a much higher rate.
In an effort to increase participation in the EB-5 category, pilot program legislation was passed introducing filing options using designated regional centers. Of the 10,000 investor visas available annually, 5,000 are set aside for those who apply under the regional center program.
A regional center is a USCIS approved organization that focuses on specific geographic areas and “seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.” The investment requirement is $500,000 if the regional center is in a targeted employment area. Once permanent resident status is granted, minimal involvement with the investment is permitted, allowing the applicant to work in any business, go to school, or enjoy retirement.
In 2003, Congress extended the pilot program for an additional five years, which seems to confirm their commitment to the immigrant investor program. Also, based on rising approval rates, adjudicators appear to be giving priority to EB-5 petitions filed through regional centers.
Foreign nationals interested in immigrating through the investment program are advised to proceed with caution. EB-5 regulations are among the most complicated in the immigration field. Seek advice from an experienced business immigration attorney with extensive knowledge of EB-5 petitions.
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US Immigration Attorney, Robert K. D’Andrea (J.D., M.B.A.) practices exclusively in the area of immigration and naturalization law and is a principal of D’Andrea Law Corporation. Offices are located in Glendora (216 N. Glendora Ave, Suite 200, Glendora, CA 91741) and Pasadena (1055 E. Colorado Blvd, Suite 500, Pasadena, CA 91106). Contact the firm for a free consultation. Tel: (626) 240-4688, (626) 771-2953. Chinese: (626) 852-9838. Email: [email protected]. Website: www.dandrealaw.com.
