Terms and conditions of the visa EB-5.

General Information:

• EB-5 Act provides for an immigrant visa to be issued to a person arriving in the United States with the goal of investing the required amount in a business entity that will work for the benefit of the US economy and create new full-time jobs for at least ten employees;
• To obtain a visa, an investor must file an I-526 petition with the US Citizenship and Immigration Services (USCIS). After approval of the petition, the investor and his immediate family (spouse & spouse and unmarried children under the age of 21 as of the date of issue of the conditional residence permit) can apply for a permanent residence permit;
• it is stipulated that the initial status of a permanent residence permit must be conditional for approximately two years. Prior to the expiration of the two-year period, the investor holding the conditional residence permit must file an I-829 petition with the USCIS, requesting the removal of the conditional status. The petition must be satisfied if the investor has evidence that he:
• invested the required amount;
• retained investment throughout the biennium;
• as a result of the investment, ten new jobs were created.

Currently, the main provisions of the EB-5 visa are as follows:

• the minimum investment amount is $ 1 million. The minimum amount can be reduced to $ 500,000, provided that investments are made in the "targeted employment zone", that is, in the area identified by the US government as a priority in terms of the implementation of EB-5 projects;
• investments can be made in both new and existing commercial enterprises;
• if funds are invested in an existing enterprise, the reorganization & restructuring of the company should be achieved as a result, and the replacement of owners, “cosmetic transformation” of the business model, marketing strategy, etc. are not sufficient conditions and do not meet the requirements of the EB-5 visa;
• when investing in an existing enterprise, it is considered sufficient to increase the assets of the enterprise and & or increase the number of jobs by at least 40%;
• Investing in “troubled & loss-making companies” is allowed. These are firms that have lost at least 20% of their equity over the past 12-24 months. Unlike investments in a “new” business, which provides for the creation of 10 new jobs, in this case we can talk about saving 10 jobs in an existing company;
• the most priority form of the newly registered (new) company is Limited Partnership. It fully meets all the requirements for issuing a visa and is transparent for various examinations;
• the concept of investment funds (capital) implies investments in equity or property of the company. Under the capital means both cash and equipment, goods or any other movable property;
• to place funds, the investor can use the escrow account (escrow account), the money from which is "released", for example, after approval of the I-526 petition. Funds in the escrow account must be irrevocable;
• evidence is required that capital is invested with “risk” - should be used in fact and purposefully, in accordance with the business plan, as indicated in the documents of the Limited Partnership. USCIS ensures that all EB-5 capital is used to create new jobs and profitable activities. For example, the transfer of funds to the deposit accounts of the enterprise is not a “contribution” to its activities. The use of capital to cover the costs of Limited Partnership and to accumulate in reserve accounts is not related to job creation;
• in accordance with the requirements of the law, it is necessary to provide evidence of the legality of the source of capital. The petitioning investor is required to provide evidence that allows him to trace the path of capital flows invested in a new commercial enterprise;
• if investor funds are obtained by donation or on credit, proof of good faith of the donor or creditor must be provided;
• an investor must create full-time jobs for at least ten United States citizens, legal permanent residents, or other immigrants with legal US employment permits. The investor, spouse and children are not counted among the specified minimum of ten employees. Non-immigrants (i.e. persons with E, H, L and other temporary work visas) are also excluded from the number of jobs created;
• “Employee” is a person who provides services or works in a new commercial enterprise, receiving wages or other remuneration. This definition does not include independent service providers;
• in accordance with the law, job creation is not limited only to employees of a new commercial enterprise, but may also include evidence of indirect job creation in all sectors of the economy. However, it should be borne in mind that USCIS rejected investor applications only because the methodology for estimating the number of indirectly created new jobs used by the investor did not comply (in terms of results) with the methodology used by USCIS;
• jobs should be created on a full-time basis, which is equivalent to a 35-hour work week. Part-time & week jobs are not counted. However, it is permitted to distribute a work position between two or more employees;
• when filling out Form I-526, the applicant must provide reasons for creating jobs or evidence that jobs will be created before the end of the two-year period of the conditional residence permit. A comprehensive business plan is attached to Form I-526:

1. reflecting the creation of jobs for at least ten employees until the end of the period of conditional residence permit;
2. containing a description of the activities of the enterprise, products and services;
3. including marketing analysis & strategy, including competitive product analysis and pricing;
4. defining the organizational structure and specific recruitment plans;
5. containing financial forecasts of commercial activities.

• In order to encourage the EB-5 program and focus on investments in specific regions, the US Congress approved a temporary “pilot program,” which is now known as the Regional Center Program (RC). Currently, 10,000 visas are issued in the interests of the Republic of Kazakhstan. The difference between the programs of the Regional Centers is that within their framework there are no specific requirements for organizing ten new jobs, provided that the investor can reasonably prove that the investment itself created directly or indirectly ten new or additional jobs. To date, USCIS has identified more than 700 regional centers located throughout the country;
• the investor (after approval of the I-526 petition) receives permanent residence on a conditional basis (conditional status). The investor - the holder of the visa must file a request for withdrawal of conditional status within ninety days immediately preceding the expiration of the second year after obtaining resident status;
• During conditional status, the visa holder must not be present in the United States for a continuous period exceeding 180 days, unless the investor has received permission to re-enter. After the withdrawal of conditional permanent residence status, these requirements are not presented. If a visa holder has been absent from the United States for more than one year, a precedent arises for the revocation of a permanent residence permit;
• Within the ninety days immediately preceding the end of the second year after obtaining the conditional status of permanent residence, the visa holder must file an I-829 petition to withdraw the conditional status. The petition must be accompanied by proof that the applicant has made the investment or finding it in the required capital investment process, as well as confirmation that the company and the investment have been stable for two years of conditional permanent residence and that the investor has created or is able to create ten full-time jobs within a reasonable period employment. USCIS Issues Notification of I-829 Petition. The notice is usually valid for one year, and can be used as a travel document. After that, if the I-829 petition is still awaiting a decision, the investor must receive a stamp in the passport to document his legal status until the status of the conditional residence permit is withdrawn;
• Failure to comply with the I-829 petition deadlines automatically leads to the cancellation of the conditional permanent residence status and the start of the deportation process. This essentially cancels out the conditionally permanent visa of the petitioner;
• USCIS may approve the I-829 petition without requesting additional information, may request additional material, or reject the petition;
• USCIS may approve the I-829 petition if the requirements for “conditional residency” are met as described above. If approved, the status of conditional permanent residence is withdrawn at the end of the second year after the petitioner receives it. The approval notice may indicate that the conditional resident is required to submit an application for preparing a new permanent residence card to the USCIS county office (Form I-551). At the district office, a conditional resident can obtain a valid passport with a temporary stamp I-551 for up to twelve months;
• The director of the district office must reject the I-829 petition if it does not meet the requirements for the removal of conditional status. This decision is not subject to appeal. The main reason for refusing I-829 is the inability to prove the creation of ten new jobs in the United States. It should be remembered that from the point of view of the authorities, the EB-5 is not an investment program, but a program to create jobs. Make sure that the Regional Center of your choice has successful experience in obtaining I-829 approvals for its investors. In addition, make sure that the regional center does not change the data to show high unemployment, because in this case, USCIS may decide to invest the required capital in the amount of $ 1 million, which was not invested, since only $ 500,000 was invested USA. The decision of the director of the district office on deportation may be appealed in court;
• the investor and immediate family members maintain their status of conditionally permanent residence during the waiting period for approval of the I-829 petition. Status can be automatically renewed for one year until the decision by the USCIS petition I-829. During this time, investors and family members are allowed to travel abroad and work in the United States. In practice, USCIS stamps the passports of the investor and relevant family members to document the duration of the resident status. To date, reviewing Form I-829 takes approximately 6 months from the date of submission.

EB-5 program costs:

• investment capital of US $ 1,000,000 (US $ 500,000 in the targeted employment area);
• CSRC administrative fee (approximately $ 50,000);
• the costs of an immigration lawyer depend on the amount of work, but do not exceed the amount of 15,000 US dollars;
• fee for applying for an EB-5 visa (Form I-526) in the amount of US $ 3.675, based on the applicant's family;
• Status Change Petition (Form I-485) $ 1,230 ($ 1,140 plus biometrics fee of $ 85);
• EB-5 visa application fee (Form I-829) in the amount of US $ 3,750, plus a biometric fee of US $ 85.

Note:

• applicants under the age of 14 and over 79 years of age (and older) are exempt from biometric fees;
• applicants under the age of 14, when submitting an I-485 petition from at least one parent, pay a fee of US $ 750.

For all questions regarding obtaining an EB-5 immigrant visa, please contact our office.