E-2 Investor Visa Information
Treaty Investor (E-2) visa is for a national of a country with which the United States (U.S.) maintains a treaty of commerce and navigation, who is coming to the U.S. to develop and direct the operations of an enterprise in which the national has invested or is in the process of investing a substantial amount of capital, under the provisions of the Immigration and Nationality Act.
Requirements: Treaty Investor
Treaty investor applicants must meet specific requirements to qualify for a treaty investor (E-2) visa under immigration law. The consular officer will determine whether a treaty investor applicant qualifies for a visa.
The investor, either a real or corporate person, must be a national of a treaty country.
The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
Applying for the Visa
Applicants for visas should generally apply at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence.
As part of the visa application process, an interview at the embassy consular section is required for visa applicants from age 14 through 79, with few exceptions. Persons age 13 and younger, and age 80 and older, generally do not require an interview, unless requested by embassy or consulate. The waiting time for an interview appointment for applicants can vary, so early visa application is strongly encouraged.
Visa wait times for interview appointments and visa processing time information for each U.S. Embassy or Consulate worldwide is available on our website at Visa Wait Times, and on most embassy websites.
Learn how to schedule an appointment for an interview, pay the application processing fee, review embassy specific instructions, and much more by visiting the Embassy or Consulate website where you will apply.
During the visa application process, usually at the interview, an ink-free, digital fingerprint scan will be quickly taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a Consular Officer.
Required Documentation
Each applicant for a treaty investor (E-2) visa must submit these forms and documentation, as explained below.
1. Online Non-immigrant Visa Electronic Application, Form DS-160.
Non-immigrant Treaty Trader/Treaty Investor Application, Form DS-156E, completed and signed, if you are an Executive/Manager/Essential Employee.
2. A passport valid for travel to the U.S. and with a validity date at least six months beyond the applicant’s intended period of stay in the U.S. (unless country-specific agreements provide exemptions).
If more than one person is included in the passport, each person must complete a Form DS-160 application. One (1) 2×2 photograph.
3. Non-immigrant visa application processing fee – For current fees for Department of State government services, select Fees.
4. Visa issuance fee – Additionally, if the visa is issued, there will be an additional visa issuance reciprocity fee, if applicable. Please consult the Visa Reciprocity Tables to find out if you must pay a visa issuance reciprocity fee and what the fee amount is.
Additional Documentation
An applicant for Treaty Investor (E-2) visa must first establish that the trading enterprise or investment enterprise meets the requirements of the law, and complies with the many requirements for the E visa classification. The consular officer may provide the applicant with special forms for this purpose. The applicant can expect the consular officer to request additional documentation, to make a determination about eligibility for a treaty trader or treaty investor visa. It is impossible to specify the exact documentation required since circumstances vary greatly by applicant.
Misrepresentation of a Material Facts, or Fraud
Attempting to obtain a visa by the willful misrepresentation of a material fact, or fraud, may result in the permanent refusal of a visa or denial of entry into the U.S. Classes of Aliens Ineligible to Receive Visas, provides important information about ineligibility.
Visa Ineligibility and Waivers
Certain activities can make you ineligible for a U.S. visa. The Nonimmigrant Visa Application, Form DS-156 or Online Form DS-160, lists some categories of persons who are ineligible under U.S. law to receive visas. In some instances an applicant who is ineligible, but who is otherwise properly classifiable for a certain type of visa, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved. Classes of Aliens Ineligible to Receive Visas provides important information about ineligibility, by reviewing sections of the law taken from the Immigration and Nationality Act.
Visa Denials
If the consular officer should find it necessary to deny the issuance of a visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal. For additional information, select Denials. In the absence of new evidence, consular officers are not obliged to re-examine such cases.
U.S. Port of Entry
A visa allows a foreign citizen coming from abroad, to travel to the U.S. port-of entry and request permission to enter the U.S. Applicants should be aware that a visa does not guarantee entry into the U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the U.S. If you are allowed to enter the U.S., the CBP official will determine the length of your visit on the Arrival-Departure Record (Form I-94). Since Form I-94 documents your authorized stay in the U.S., it’s very important to keep in your passport.
In advance of travel, prospective travelers should review important information about Admissions/Entry requirements, as well as information related to restrictions about bringing food, agricultural products or other restricted/prohibited goods explained on the CBP website. Upon arrival (at an international airport, seaport or land border crossing), you will be enrolled in the US-VISIT entry-exit program.
Staying Beyond Your Authorized Stay in the U.S.and Being Out f Status It is important that you depart the U.S. on or before the last day you are authorized to be in the U.S. on any given trip, based on the specified end date on your Arrival-Departure Record, Form I-94. Failure to depart the U.S. will cause you to be out-of-status, violating immigration laws.
Staying beyond the period of time authorized by the Department of Homeland Security and being out-of-status in the U.S. is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the U.S. Select Classes of Aliens Ineligible to Receive Visas to learn more.
Staying unlawfully in the U.S. beyond the date CBP officials have authorized– even by one day–results in your visa being automatically voided, in accordance with INA 222(g). Under this provision of immigration law, if you overstay on your nonimmigrant authorized stay in the U.S., your visa will be automatically voided. In this situation, you are required to reapply for a new nonimmigrant visa, generally in your country of nationality.
General
No assurances regarding the issuance of visas can be given in advance. Therefore final travel plans or the purchase of non-refundable tickets should not be made until a visa has been issued.
Unless previously canceled, a visa is valid until its expiration date. Therefore, if the traveler has a valid U.S. visa in an expired passport, do not remove the visa page from the expired passport. You may use it along with a new valid passport for travel and admission to the U.S.
Family Members
Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E visas in order to accompany the principal visa holder. The spouse of an E visa holder may apply to DHS for employment authorization. Dependent children of an E visa holder are not authorized to work in the U.S.
How Do I Extend My Stay?
Visitors who wish to stay beyond the date indicated on their Form I-94 are required to have approval by USCIS. See Extend Your Stay on the USCIS website.
How Do I Change My Status?
Some nonimmigrant visa holders, while present in the U.S., are able to file a request which must be approved by USCIS to change to another nonimmigrant category. See Change My Nonimmigrant Status on the USCIS website.
Important Note:
Filing a request with USCIS for approval of change of status before your authorized stay expires, while you remain in the U.S., does not by itself require the visa holder to apply for a new visa. However, if you cannot remain in the U.S. while USCIS processes your change of status request, you will need to apply for a nonimmigrant visa at a U.S. Embassy or Consulate abroad.
Further Inquiries
Before submitting your inquiry, we request that you carefully review this website and also the Embassy web site abroad. Very often you will find the information you need.
If your inquiry concerns a visa case in progress overseas, you should first contact the U.S. Embassy or Consulate handling your case for status information. Select U.S. Embassy or Consulate, and you can choose the Embassy or Consulate.
EB-5 Immigrant Investor Visa Information
Congress created the EB-5 Program to promote immigrants’ investment of capital into new commercial enterprises in the United States so that new jobs will be created for U.S. workers. The EB-5 Program provides for flexibility in the types and amounts of capital that can be invested, the types of commercial enterprises into which that capital can be invested, and how the resulting jobs can be created. This flexibility serves the promotion of investment and job creation and recognizes the dynamics of the business world in which the EB-5 Program exists.
The Three Elements of the EB-5 Program are : (1) the immigrant’s investment of capital, (2) in a new commercial enterprise, (3) that creates jobs.
“Invest” Defined
Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.
The Amount of Capital That Must be Invested
The statute governing the EB-5 Program provides that the immigrant investor must invest $1,000,000 in capital in a new commercial enterprise that creates not fewer than ten jobs. As discussed above, this means that the present fair market value, in United States dollars, of the immigrant investor’s lawfully-derived capital must be $1,000,000. 8 U.S.C. § 1153(b)(5)(C)(i).
An exception exists if the immigrant investor invests his or her capital in a new commercial enterprise that is principally doing business in, and creates jobs in, a “targeted employment area.” In such a case, the immigrant investor must invest a minimum of only $500,000 in capital. 8 U.S.C. § 1153(b)(5)(C)(ii). See Section 3.a below for the definition of where the new commercial enterprise is “principally doing business.”
“Targeted Employment Area” Defined
The statute and regulations governing the EB-5 Program defines a “targeted employment area” as, at the time of investment, a rural area or an area that has experienced unemployment of at least 150 percent of the national average rate. A “rural area” is defined as any area not within
either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more Congress expressly provided for a reduced investment amount in a rural area or an area of high unemployment in order to spur immigrants to invest in new commercial enterprises that are principally doing business in, and creating jobs in, areas of greatest need. In order for the lower capital investment amount of $500,000 to apply, the new commercial enterprise into which the immigrant invests must be principally doing business in the targeted employment area and must create the jobs in the targeted employment area.
A State’s Designation of a Targeted Employment Area
The regulation provides that a state government may designate an area within its boundaries as a targeted employment area based on high unemployment. Before the state may make such a designation, an official of the state must notify USCIS of the agency, board, or other appropriate governmental body of the state that will be delegated the authority to certify that the geographic or political subdivision is a high unemployment area. The state may then send a letter from the authorized body of the state certifying that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area.
“Commercial Enterprise” Defined
Any for-profit activity formed for the ongoing conduct of lawful business. The examples listed are:
Sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned.. This definition includes a commercial enterprise consisting of a holding company and its wholly-owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business
“New” Defined
The immigrant investor can invest the required amount of capital in a commercial enterprise that was established after November 29, 1990 to qualify for the EB-5 Program, provided the other eligibility criteria are met.
In addition, in the EB-5 Program a “new” commercial enterprise also means a commercial enterprise that was established before November 29, 1990 and that will be restructured or expanded through the immigrant investor’s investment of capital
The Purchase of an Existing Business That is Restructured or Reorganized
The immigrant investor can invest in an existing business, regardless of when that business was first created, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results
The Expansion of An Existing Business
provided that a substantial change in the net worth or number of employees results from the investment of capital.
“Substantial change” is defined as follows:
40 percent increase either in the net worth, or in the number of employees, so that the new net worth, or number of employees amounts to at least 140 percent of the per-expansion net worth or number of employees. Investment in a new commercial enterprise in this manner does not exempt the immigrant investor from meeting the requirements relating to the amount of capital that must be invested and the number of jobs that must be created
The EB-5 Program provides that a new commercial enterprise can be used as the basis for the petition of more than one immigrant investor. Each immigrant investor must invest the required amount of capital and each immigrant investor’s investment must result in the required number of jobs.
The new commercial enterprise can have several owners and the owners do not all have to be immigrant investors seeking to enter the EB-5 Program, provided that the source(s) of all capital invested is (or are) identified and all invested capital has been derived by lawful means.
Evidence of The Investment in a New Commercial Enterprise
(1) As applicable, articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership, joint venture agreement, business trust agreement, or other similar organizational document for the new commercial enterprise; or,
(2) A certificate evidencing authority to do business in a state or municipality or, if the form of the business does not require any such certificate or the state or municipality does not issue such a certificate, a statement to that effect; or,
(3) Evidence that, as of a date certain after November 29, 1990, the required amount of capital for the area in which an enterprise is located has been transferred to an existing business, and that the the investment has resulted in a substantial increase in the net worth or number of employees of the business to which the capital was transferred. This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth or number of employees.
The Requirement That The Immigrant Investor be Engaged
Either through the exercise of day-to-day managerial responsibility or through policy formulation. It is not enough that the immigrant investor maintain a purely passive role in regard to his or her investment. To show that the immigrant investor is or will be engaged in the exercise of day-to-day managerial control or in the exercise of policy formulation, the immigrant investor must submit:
(1) a statement of the position title that the immigrant investor has or will have in the new enterprise and a complete description of the position’s duties; or,
(2) evidence that the immigrant investor is a corporate officer or a member of the corporate board of directors; or,
(3) if the new enterprise is a partnership, either limited or general, evidence that the immigrant investor is engaged in either direct management or policy making activities. If the petitioner is a limited partner and the limited partnership agreement provides the immigrant investor with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the immigrant investor will be considered sufficiently engaged in the management of the new commercial enterprise.
The Location of The New Commercial Enterprise in
a Regional Center
there is a pilot program within the EB-5 Program that provides for different job creation rules if the immigrant investor makes his or her investment in a new commercial enterprise located within a “regional center.” The pilot program is called the “Immigrant Investor Pilot Program,” and the different job creation rules are discussed below. A “regional center” is defined as follows:
Regional center means any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment.
A regional center that wants to participate in the Immigrant Investor Pilot Program must submit a proposal to us that:
(1) Clearly describes how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment;
(2) Provides in verifiable detail how jobs will be created directly or indirectly;
(3) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center;
(4) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and,
(5) Is supported by economically or statistically sound valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and/or multiplier tables.
The Immigrant Investor Pilot Program was implemented with the goal of spurring greater economic growth in the geographic area in which a regional center is developed. The regional center model within the Immigrant Investor Pilot Program can offer an immigrant investor already-defined investment opportunities, thereby reducing the immigrant investor’s responsibility to identify acceptable investment vehicles. A regional center can manage, direct, and control the projects and developments that the new commercial enterprise initiates. In addition, the regional center can develop business plans and otherwise facilitate the formation of the new commercial enterprise, and can provide the economic analysis required to demonstrate job creation. As discussed fully below, if the new commercial enterprise is located within and falls within the economic scope of the defined regional center, different job creation requirements apply. A regional center can contain one or more new commercial enterprises.
The Creation of Jobs
The creation of jobs for U.S. workers is a critical element of the EB-5 Program. It is not enough that the immigrant invest funds into the U.S. economy; the investment must result in the creation of jobs for qualifying employees. As discussed fully below, the EB-5 Program provides that each investment of the required amount of capital in a new commercial enterprise must result in the creation of at least ten jobs.
It is important to recognize that while the immigrant’s investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs.
It is also important to note that the full amount of the immigrant’s investment must be made available to the business(es) most closely responsible for creating the jobs upon which EB-5 eligibility is based. Thus, in the regional center context, if the new commercial enterprise is not the job-creating entity, then the full amount of the capital must be first invested in the new commercial enterprise and then placed into the job-creating entity.
Full-Time Positions For Qualifying Employees
An “employee” is defined as follows:
Employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise.
The employee must be a “qualifying employee” for the purpose of the EB-5 Program’s job creation requirement. A “qualifying employee” is defined as follows:
Qualifying employee means a United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation. This definition does not include the alien entrepreneur, the alien entrepreneur’s spouse, sons, or daughters, or any non immigrant alien.
It is important to note that the definition of “qualifying employee” does not include the immigrant investor himself or herself, the immigrant investor’s spouse, sons, or daughters, or any non immigrant alien.
The EB-5 Program’s job creation requirement provides that it is “full-time employment” that must be created for the ten or more qualifying employees. “Full-time employment” is defined as follows:
Full-time employment means employment of a qualified employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week
A full-time employment position can be filled by two or more qualifying employees in a job sharing arrangement as long as the 35-working-hours-per-week requirement is met. However, a full-time employment position cannot be filled by combinations of part-time positions, even if those positions when combined meet the hourly requirement.
Job Creation Requirement
There are three measures of job creation in the EB-5 Program, depending on the new commercial enterprise and where it is located:
(a) The Troubled Business
The EB-5 Program recognizes that in the case of a troubled business, our economy benefits when the immigrant investor helps preserve the troubled business’s existing jobs. Therefore, when the immigrant investor is investing in a new commercial enterprise that is a troubled business or, in the regional center context, is placing capital into a job-creating entity that is a troubled business, the immigrant investor must only show that the number of existing employees in the troubled business is being or will be maintained at no less than the pre-investment level for a period of at least two years.
This regulatory provision, while allowing job preservation in lieu of job creation, does not modify the numeric requirement; in the case of a troubled business, ten jobs must be preserved or created.
A business that has been in existence for at least two years, has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the twelve- or twenty-four month period prior to the
priority date on the alien entrepreneur’s Form I-526, and the loss for such period is at least equal to twenty percent of the troubled business’s net worth prior to such loss.
For purposes of determining whether or not the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.
(b)New Commercial Enterprise Not Associated With a Regional Center
For a new commercial enterprise that is not a troubled business and is not located within and associated with a regional center, the EB-5 Program provides that the full-time positions must be created directly by the new commercial enterprise. This means that the new commercial enterprise must itself be the employer of the qualified employees who fill the new full-time positions. 8 C.F.R. § 204.6(e) (definition of employee).
(c) New Commercial Enterprise Located Within and Associated With a Regional Center
For a new commercial enterprise that is not a troubled business and is located within a regional center, the EB-5 Program provides that the full-time positions can be created either directly or indirectly by the new commercial enterprise.
Indirect jobs are those that are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise. For indirect jobs, the new full-time employees would not be employed directly by the new commercial enterprise. For example, indirect jobs can include those held by employees of the producers of materials, equipment, or services used by the new commercial enterprise.
- Evidence of Job Creation
In order to show that a new commercial enterprise will create not fewer than ten full-time positions for qualifying employees, the immigrant investor must submit the following evidence:
Documentation consisting of photocopies of relevant tax records, Form I-9, or other similar documents for ten (10) qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or,
A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired.
A business plan must comply with the requirements set forth in our AAO precedent decision:
The plan should contain a market analysis, including the names of competing businesses and their relative strengths and weaknesses, a comparison of the competition’s products and pricing structures, and a description of the target market/prospective customers of the new commercial enterprise. The plan should list the required permits and licenses obtained. If applicable, it should describe the manufacturing or production process, the materials required, and the supply sources. The plan should detail an contracts executed for the supply of materials and/or the distribution of products. It should discuss the marketing strategy of the business, including pricing, advertising, and servicing. The plan should set forth the business’s organizational structure and its personnel’s experience. It should explain the business’s staffing requirements and contain a timetable for hiring, as well as job descriptions for all positions. It should contain sales, cost, and income projections and detail the bases therefore. Most importantly, the business plan must be credible.
In the case of a troubled business, a comprehensive business plan must accompany the other required evidential documents. ). In the case of a new commercial enterprise within a regional center, the direct or indirect job creation may be demonstrated by the types of documents identified above or by reasonable methodologies.
When there are multiple investors in a new commercial enterprise, the total number of full-time positions created for qualifying employees will be allocated only to those immigrant investors who have used the establishment of the new commercial enterprise as the basis of their entry in the EB-5 Program.
An allocation does not need to be made among persons not seeking classification in the EB-5 Program, nor does an allocation need to be made among non-natural persons (such as among investing corporations).
Procedural Issues
The EB-Program provides that the immigrant investor will file an initial petition and supporting documentation to be classified as eligible to apply for an EB-5 visa through USCIS’s adjustment of status process within the United States or through the Department of State’s visa application process abroad. Upon adjustment of status or admission to the United States, the immigrant investor is a conditional lawful permanent resident. The EB-5 Program further provides that if, after two years, the immigrant investor has satisfied the EB-5 Program’s conditions, the conditions will be removed and the immigrant investor will be an unconditional lawful permanent resident.
The Sequence of Filings: General Overview
An immigrant investor seeking admission into the United States as a lawful permanent resident will proceed in the following sequence:
For an immigrant investor who is investing in a new commercial enterprise that is not part of a regional center, the immigrant investor will file a Form I-526 that, together with the supporting evidence, demonstrates by a preponderance of the evidence that the immigrant investor has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise in the United States that will create full-time positions for not fewer than ten qualifying direct employees.
For an immigrant investor who is investing in a new commercial enterprise that is part of a regional center:
o The entity seeking designation as a regional center will file a Form I-924 that, together with the supporting evidence, demonstrates by a preponderance of the evidence that the requirements for a regional center have been met. The individuals who establish the regional center can be, but need not be, the immigrant investors themselves; and,
o Once USCIS designates the entity as a regional center, the immigrant investors will file a Form I-526 that, together with the supporting evidence, demonstrates by a preponderance of the evidence that the immigrant investor has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise in the United States that will create directly or indirectly full-time positions for not fewer than ten qualifying employees.
It is important to note that at this preliminary Form I-526 filing stage, the immigrant investor must demonstrate his or her commitment to invest the capital but need not establish that the required capital already has been invested; it is sufficient if the immigrant investor demonstrates that he or she is actively in the process of investing the required capital. However, evidence of a mere intent to invest or of prospective investment arrangements entailing no present commitment will not suffice.
Similarly, at this preliminary stage the immigrant investor need not establish that the required jobs already have been created; it is sufficient if the immigrant investor demonstrates in a business plan that the required jobs will be created.
Ninety days prior to the two-year anniversary of the date on which the immigrant investor obtained conditional lawful permanent resident status, the immigrant investor will file a Form I-829 to remove the conditions. The I-829 petition to remove conditions must be accompanied by the following evidence:
(1) Evidence that the immigrant investor invested or was actively in the process of investing the required capital and sustained this action throughout the period of the immigrant investor’s residence in the United States. The immigrant investor can make this showing if he or she has, in good faith, substantially met the capital investment requirement and continuously maintained his or her capital investment over the two years of conditional residence. Even at this stage the immigrant investor need not have invested all of the required capital, but need only have substantially met that requirement. The evidence may include, but is not limited to, an audited financial statement or other probative evidence such as bank statements, invoices, receipts, contracts, business licenses, Federal or State income tax returns, and Federal or State quarterly tax statements; and,
(2) Evidence that the immigrant investor created or can be expected to create, within a reasonable time, ten full-time jobs for qualifying employees. In the case of a troubled business, the immigrant investor must submit evidence that the commercial enterprise maintained the number of existing employees at no less than the pre-investment level for the period following his or her admission as a conditional permanent resident. The evidence may include, but is not limited to, payroll records, relevant tax documents, and Forms I-9.
It is also important to note that the EB5 Program allows an immigrant investor to become a lawful permanent resident, without conditions, if the immigrant investor has established a new commercial enterprise, substantially met the capital requirement, and can be expected to create within a reasonable time the required number of jobs. All of the goals of capital investment and job creation need not have been fully realized before the conditions on the immigrant investor’s status have been removed. The regulations require the submission of documentary evidence of “substantial” compliance with the capital requirements and evidence that the jobs will be created “within a reasonable time.” This is a reflection of the EB-5 Program’s desire to attract investment and promote job creation, and also its recognition of the dynamics of capital investments in new commercial enterprises for the purpose of creating jobs.
Material Change
The process of establishing a new business and creating jobs depends on a wide array of variables over which an investor or the creator of a new business may not have any control.
The very best of business plans may be thrown off, for example, because of a sudden lack of supply in required merchandise or an unexpected hurricane that devastates an area in which the new business was to be built.
The effect of changed business plans on a regional center or an individual investor’s immigration status may differ depending on when the change is made relative to the various petitions the regional center or the individual investor have filed.
It is well established that in visa petition proceedings, a petitioner must establish eligibility at the time of filing and that a petition cannot be approved if, after filing, the petitioner becomes eligible under a new set of facts or circumstances. (“a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements”).
Regional Center Applications (Forms I-924)
In recognition of the fact that the regional center developer might in good faith have to implement material changes after submission of the initial Form I-924 petition to USCIS, the instructions to Form I-924 provide that a regional center may amend a previously approved designation. The Form I-924 provides a list of acceptable amendments, including to geographic area, organization structure, capital investment projects (including changes in the economic analysis and underlying business plan used to estimate job creation for previously-approved investment opportunities), and an affiliated commercial enterprise’s organization structure.
The approval of an amended Form I-924 does not cure or amend the I-526 petition an individual investor filed prior to the approval of the regional center amendment. The amendment alters the scope of the regional center to include the new commercial activity being conducted so that petitions filed after the amendment’s approval fall within the scope of the regional center’s approved activities.
Investors Who Have Obtained Conditional Lawful Permanent Resident Status
Historically, USCIS has required a direct connection between the business plan the investor has provided and the subsequent removal of conditions. USCIS would not approve a Form I-829 petition if the investor had made an investment and created jobs in the United States if the jobs were not created according to the plan presented in the Form I-526. While that position is a permissible construction of the governing statute, USCIS also notes that the statute does not require that direct connection. In order to provide flexibility to meet the realities of the business world, USCIS will permit an alien who has been admitted to the United States on a conditional basis to remove those conditions when circumstances have changed. An individual investor can, at the prescribed time, proceed with his or her Form I-829 petition to remove conditions and present documentary evidence demonstrating that, notwithstanding the business plan contained in the Form I-526, the requirements for the removal of conditions have been satisfied.
USCIS notes, however, that it is more beneficial for an immigrant investor to utilize the business plan contained in the Form I-526. As the Ninth Circuit Court of Appeals has recognized, if the alien investor is seeking to have the conditions removed from his or her status based on the business plan contained in the Form I-526, USCIS may not revisit certain aspects of the business plan, including issues related to the economic analysis supporting job creation. If, however, the immigrant investor is seeking to have his or her conditions removed based on a business plan not consistent with the approved I-526, the Chang decision does not foreclose USCIS from requiring or requesting evidence to prove the element of job creation. This may include revisiting issues previously adjudicated in the Form I-526, such as the economic analysis underlying the new job creation. USCIS also notes that, in the case of a petition affiliated with a regional center, the petitioner will only be able to claim indirect job creation if the new business plan falls within the scope of the regional center.
Adel Elgoneimy, Certified Public Accountant 